State of Tennessee v. Michael Rimmer

05/21/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

September 5, 2018 Session

STATE OF TENNESSEE v. MICHAEL RIMMER

Appeal from the Criminal Court for Shelby County

No. 98-01033, 98-01034 Chris Craft, Judge

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No. W2017-00504-CCA-R3-DD

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The Defendant, Michael Rimmer, was convicted by a Shelby County jury of first degree

premeditated murder, first degree felony murder, and aggravated robbery. T.C.A. §39-

13-202(1), (2) (Supp. 1998) (first degree murder), §39-13-402 (1997) (aggravated

robbery). The trial court merged the felony murder conviction into the premeditated

murder conviction. The jury sentenced the Defendant to death for the first degree murder

conviction, and the trial court sentenced him to eighteen years for the aggravated robbery

conviction and ordered it to be served consecutively to the sentence for the murder

conviction. On appeal, the Defendant contends that: (1) the evidence is insufficient to

support his convictions for first degree murder and aggravated robbery; (2) the trial court

erred in denying his motion to dismiss the felony murder charge; (3) the trial court erred

in denying his motion to suppress DNA evidence; (4) the trial court erred in not striking

the State’s opening statement or declaring a mistrial based on a comment made by the

State; (5) the trial court erred in admitting evidence of the Defendant’s prior convictions;

(6) the trial court erred in limiting the testimony of William Baldwin; (7) the trial court

erred in admitting a drawing of the backseat of the Honda the Defendant was driving

when he was arrested; (8) the trial court erred in finding James Allard was unavailable

and allowing his testimony from the previous trial to be entered into evidence; (9) the

trial court erred in admitting hearsay testimony through witness Rhonda Bell; (10) the

trial court erred in allowing Chris Ellsworth to display his scars to the jury; (11) the trial

court erred in allowing hearsay testimony through witness Tim Helldorfer; (12) the trial

court erred in limiting the testimony of Tim Helldorfer regarding a photograph

identification and the release of the Honda from police custody; (13) the trial court erred

in allowing Joyce Carmichael to testify about Tommy Voyles; (14) the trial court erred in

admitting previous testimony of deceased or otherwise unavailable witnesses; (15) the

trial court erred in admitting Richard Rimmer’s prior statement and related exhibits as

substantive evidence; (16) the trial court erred in limiting the testimony of Kenneth Falk;

(17) the trial court erred in limiting the testimony of Marilyn Miller; (18) the trial court

erred in excluding documents relating to a lawsuit involving the Shelby County Jail; and

(19) the trial court erred in applying an aggravating factor and imposing a consecutive

sentence for the aggravated robbery conviction. Following our review, we affirm the

judgments of the trial court.

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

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

T. WOODALL and NORMA MCGEE OGLE, JJ., joined.

Paul Bruno, Nashville, Tennessee; and Robert Parris, Memphis, Tennessee, for the

appellant, Michael Rimmer.

Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein,

Solicitor General; Andrew C. Coulam, Assistant Attorney General; Rachel M. Stephens

and Pamela S. Anderson, District Attorneys General Pro Tem, for the appellee, State of

Tennessee.

OPINION

PROCEDURAL BACKGROUND

On November 7, 1998, the Defendant, Michael Rimmer, was convicted by a

Shelby County jury of first degree premeditated murder, first degree felony murder,

aggravated robbery, and theft of property valued at $1,000 or more but less than $10,000.

The jury imposed a sentence of death. On appeal, this court affirmed his convictions but

reversed the sentence of death and remanded the case to the trial court for a new

sentencing hearing. See State v. Michael D. Rimmer, No. W1999-00637-CCA-R3-DD,

2001 WL 567960, at *1 (Tenn. Crim. App. May 25, 2001).

At the conclusion of the January 2004 resentencing hearing, the jury again

imposed a sentence of death. On appeal, this court affirmed. See State v. Michael Dale

Rimmer, No. W2004-002240-CCA-R3-CD, 2006 WL 3731206, at *1 (Tenn. Crim. App.

Aug. 13, 2007). The Tennessee Supreme Court, likewise, affirmed. See State v.

Rimmer, 250 S.W.3d 12, 18 (Tenn. 2008).

Thereafter, the Defendant filed a petition for post-conviction relief alleging that he

received the ineffective assistance of counsel. Following an evidentiary hearing, the

post-conviction court granted relief. The court found that defense counsel’s

“overburdened case load caused both counsel and the auxiliary members of the defense

team to conduct a seriously deficient investigation of petitioner’s case.” In particular,

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counsel did not discover that a witness identified a man other than the Defendant as the

person he saw at the scene of the crime. Although the court acknowledged that the

State’s evidence against the Defendant was strong, it found that the undiscovered

evidence called into question the reliability of the jury’s verdict. The post-conviction

court concluded that the Defendant was entitled to a new trial. The State did not appeal.

Prior to the retrial, the trial court severed the theft charge.

At the subsequent trial in April 2016, the evidence showed that the Defendant and

the victim had an on-and-off relationship in the late 1970s and early 1980s. In 1989, the

Defendant pleaded guilty to burglary in the first degree, aggravated assault, and rape of

the victim. While serving his sentence, the Defendant threatened to kill the victim to

fellow inmates Roger Lescure and William Conaley. Both inmates testified that the

Defendant became very agitated when discussing the victim. The Defendant also

discussed methods for disposing of a body.

The Defendant was released from prison in January 1997 and began working for

an automobile repair shop. Through his work, he met Steve and Cheryl Featherston after

the Defendant assisted in repairing a car at their home. Later that month, the

Featherstons reported to the police that a 1998 maroon Honda Accord disappeared from

their driveway. Mr. Featherston testified that at the time the car disappeared, it was very

clean and did not have any upholstery stains.

During this time, the victim worked as a night clerk at a Memphis motel. She

reported to work on the night of February 7, 1997, and guests at the motel established that

she was present until approximately 1:45 a.m. on February 8. However, after that time,

the victim disappeared from the office, and she had no further communication with

anyone. Her body has never been found.

James Defevere checked into the motel between 1:00 and 1:15 a.m. on February 8.

When guest Natalie Doonan went to the vending area adjacent to the front office between

1:30 and 1:45 a.m., she saw a man enter the lobby. The victim was behind the desk at

this time. Dr. Ronald King was in the vending area around 1:40 a.m. and saw the victim

allow a man into the office through the locked security door. Dr. King said the man

drove a maroon car. Twenty to thirty minutes after Ms. Doonan left the vending area, she

called the front desk but received no answer. Mr. Defevere returned to the office to

check out around 2:25 a.m., but the victim was not in the office.

James Darnell and Dixie Presley stopped at the motel between 1:30 and 2:00 a.m.

to pick up a map, parking a few spaces from the night entrance. Ms. Presley waited in

the car while Mr. Darnell went inside. She saw a maroon car parked in front of the office

entrance with its trunk open. She thought this was odd because there was light rain. Mr.

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Darnell noticed a man standing next to the trunk of a maroon car, which had been backed

into a parking spot with the trunk closest to the building. The man “had something rolled

up in his arms,” which the man placed in the trunk. Mr. Darnell said that the object was

rolled up in a “blanket” and that the car sank when it was placed in the trunk.

Mr. Darnell proceeded to the motel entrance, and the man who had been standing

by the car quickly walked to the entrance, as well. Mr. Darnell opened the door and

allowed the man to enter first. Mr. Darnell noticed the man had blood on his hands.

When Mr. Darnell entered the lobby, he saw that the office door was open and that a

different man was at the desk, pushing money under the window. Although Mr. Darnell

could not identify the man who was outside and followed him into the office, Mr. Darnell

identified the man behind the window as Billy Wayne Voyles.

Raymond Summers, CSX Railroad yardmaster, testified that CSX housed its

crews at the motel in February 1997. On February 7, Mr. Summers attempted to call the

front desk between 2:45 and 3:00 a.m., but no one answered. He then drove to the motel,

arriving approximately ten minutes later, and he found the night clerk’s office abandoned.

The secured door leading into the office was open, and Mr. Summers entered the office

looking for a motel employee. He heard running water and followed the sound into the

employee bathroom. In the bathroom, he saw blood on the sink basin and toilet and

bloody towels on the floor, and the toilet seat was missing. He immediately left the motel

in search of help. He encountered two Shelby County Sheriff deputies in a restaurant

parking lot near the motel. The deputies immediately went to the motel, secured the

scene, and called the Memphis Police Department (MPD).

MPD crime scene investigators found large amounts of blood, a cracked sink,

bloody towels, and a broken toilet seat. A bloody trail led from the bathroom, through

the office, and to the curb outside the motel’s night entrance. The motel manager

testified that approximately $600 was missing from the office as well as several sets of

sheets. Approximately $400 was missing from the register drawer and another $200 was

missing from a lockbox kept in a backroom. The victim kept a key in her pocket in order

to access the lockbox. The victim’s purse was in the office, her car was in the parking

lot, and her wedding ring, which she always wore, was found on the bathroom floor.

Between 8:30 and 9:00 on the morning of February 8, the Defendant arrived at his

brother’s home in Mississippi. The Defendant drove a maroon Honda, and his shoes and

the car were muddy. He claimed that he drove into a ditch. He carried a shovel to his

brother and asked his brother to dispose of it. The Defendant also asked his brother to

help him clean blood out of the backseat of the Honda. His brother allowed the

Defendant to clean his shoes but declined the Defendant’s request to stay at the home.

After the Defendant left, his brother disposed of the shovel.

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Although the Defendant had only worked at the repair shop for approximately

three weeks, his supervisor described him as a reliable worker. However, on February

10, the Defendant failed to report to work, and he was not seen again until March 5, when

he was stopped for speeding in Johnson County, Indiana. Authorities in Indiana

discovered that the car the Defendant drove was the Featherstons’ missing Honda and

that the Defendant was wanted for questioning in connection with the victim’s

disappearance.

Receipts found in the car showed that the Defendant had traveled throughout the

country since the victim’s disappearance. He traveled through Mississippi, Florida,

Missouri, Wyoming, Montana, California, Arizona, Texas, and Indiana. Investigators

found large blood stains in the back seat of the car. A DNA sample collected from the

victim’s mother, Marjorie Floyd, was compared with forensic evidence found in the car

and in the motel bathroom. DNA testing showed that the blood from the back seat was

consistent with a daughter of Ms. Floyd and that blood from the motel bathroom and the

car were consistent with the victim’s DNA.

While incarcerated in Indiana, the Defendant told his cellmate, James Allard, Jr.,

that he killed his “wife” in the motel where she worked. According to Mr. Allard, the

Defendant told him that “he went to [the victim’s] place of business, . . . that she let him

in there” and that he attacked her “in a back room behind the service desk or whatever in

the office part.” The Defendant told Mr. Allard that he shot the victim in the chest. The

Defendant stated that he had been “doing something” in the back room, that the victim

“got up,” and that he shot her a second time in the head. The Defendant described the

scene as bloody, said he had “dumped the body,” and expressed surprise that the body

had not been found.

Following his arrest, the Defendant participated in several escape attempts. The

Defendant used toenail clippers to cut an opening in the recreation-yard fence. The

Defendant discussed his plans with Mr. Allard, which included taking a guard hostage

and killing a guard if necessary. Two “shanks,” described as homemade knives, were

located in the Defendant’s Indiana cell. The Defendant attempted to escape again during

his transport from Indiana to Tennessee. The Defendant obtained control of the van and

led local law enforcement on a twenty-mile chase in Bowling Green, Ohio. Police

stopped the van at a roadblock and apprehended the Defendant. After arriving at the

Shelby County Jail, the Defendant and another inmate attempted to escape by sawing

through the bars of their cell, breaking a window, and repelling down the building using a

homemade rope.

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Upon this evidence, the jury convicted the Defendant of first degree premeditated

murder, first degree felony murder, and aggravated robbery. The trial court merged the

felony murder conviction into the premeditated murder conviction. At the bifurcated

sentencing hearing, the victim’s mother’s previous victim impact testimony was read to

the jury. As an aggravating factor, the State introduced certified copies of the

Defendant’s four prior felony convictions involving the use of violence against a person.

The Defendant chose not to present any mitigating evidence. The jury sentenced the

Defendant to death.

ANALYSIS

I. Sufficiency of the Evidence and Indictments

The Defendant contends that no evidence connected him to the crimes, but his

argument focuses on whether the indictments provided him with adequate notice that

other persons could have been involved in the crimes. The Defendant argues that the

evidence showed that two other men committed the murder and that no evidence supports

a theory of criminal responsibility. The State responds that ample evidence connected the

Defendant to the murder and to the robbery and that “the fact that others might have been

involved was not an element of the charged offenses.” Further, the State argues that

criminal responsibility is a theory of guilt and need not be stated in an indictment.

A. Sufficiency of the Evidence

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

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

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

Jackson v. Virginia, 443 U.S. 307, 319 (1979); see State v. Vasques, 221 S.W.3d 514,

521 (Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence

and all reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The

appellate courts do not “reweigh or reevaluate the evidence,” and questions regarding

“the credibility of witnesses [and] the weight and value to be given the evidence . . . are

resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see

State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).

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

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

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

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

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

2009)). A conviction may be based upon circumstantial evidence alone. See Dorantes,

331 S.W.3d at 380-81.

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First degree murder is the unlawful, intentional, and premeditated killing of

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

murder, intent is shown if the defendant has the conscious objective or desire to cause the

victim’s death. State v. Page, 81 S.W.3d 781, 790-91 (Tenn. Crim. App. 2002); T.C.A. §

39-11-106(a)(18) (2010) (amended 2011, 2014) (defining intentional as the “conscious

objective or desire to engage in the conduct or cause the result”). A premeditated act is

one which is

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

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

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

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

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

determine whether the accused was sufficiently free from excitement and

passion as to be capable of premeditation.

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

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

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

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

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

As relevant here, first degree felony murder is “[a] killing of another committed in

the perpetration of or attempt to perpetrate any . . . robbery[.]” T.C.A. § 39-13-202(a)(2)

(2014).

Aggravated robbery is defined, in relevant part, as “the intentional or knowing

theft of property from the person of another by violence or putting the person in fear,”

“where the victim suffers serious bodily injury.” Id. §§ 39-13-401(a) (2014), -402(a)(1).

Theft of property occurs when “with the intent to deprive the owner of property, [a]

person knowingly obtains or exercises control over the property without the owner’s

effective consent.” T.C.A. § 39-14-103(a) (2014).

There was strong direct and circumstantial evidence establishing that the

Defendant participated in the victim’s murder and the aggravated robbery of the victim.

The Defendant discussed his plan to kill the victim and to hide her body when he was

previously incarcerated for assaulting the victim. Witnesses testified that a maroon car

was seen at the motel, and the Defendant was seen with a maroon Honda the day after the

victim’s disappearance. The Defendant was driving the maroon Honda at the time of his

arrest, and the car contained blood and DNA consistent with that of the victim. The

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motel bathroom contained the victim’s blood and DNA, and the victim was never seen

after the early morning hours of February 8, 1997. Testimony established that $600 and

several sets of bed sheets were missing from the motel office. Some of the missing

money was from a lockbox kept in a back room, and the victim kept the key to the box on

her person. The Defendant told another inmate that he had been in the back room “doing

something” after he shot the victim in the chest, that she “got up,” and he shot her in the

head. One of the witnesses saw a man place an object rolled up in a blanket in the trunk

of a maroon car that was backed into a parking place with its open trunk facing toward

the building. The car sank when the object was placed in the trunk.

Witnesses and investigators described a bloody scene indicative of a violent

struggle, supporting the conclusion that the victim suffered serious bodily injury.

Witness testimony also established that two perpetrators participated in the offenses. Mr.

Allard testified that the Defendant confessed to being present at the motel and to actively

participating in the attack against the victim. Several hours after the victim disappeared,

the Defendant arrived at his brother’s home Mississippi in a maroon Honda, which was

muddy. The Defendant’s shoes were muddy, and he asked his brother to dispose of a

shovel and to assist him in cleaning blood from the backseat of the car.

Following the victim’s disappearance, the Defendant also disappeared for

approximately one month. He stopped going to work and did not pick up his last

paycheck, although his supervisor described the Defendant as reliable. Receipts found in

the Honda showed that the Defendant had traveled throughout the country before his

arrest in Indiana. After his arrest, he told Mr. Allard that he had murdered the victim and

hid her body. The Defendant also attempted to escape from police custody on three

occasions. We conclude that sufficient evidence supports the first degree premeditated

murder, first degree felony murder, and aggravated robbery convictions.

B. Sufficiency of the Indictments

An individual accused of a crime has the right to be informed of the nature and

cause of an accusation against him. U.S. Const. amend. XI, XIV; Tenn. Const. art. 1, § 9.

Pursuant to Tennessee Code Annotated section 40-13-202 (2012), an indictment

must state the facts constituting the offense in ordinary and concise

language, without prolixity or repetition, in such a manner as to enable a

person of common understanding to know what is intended and with that

degree of certainty which will enable the court, on conviction, to pronounce

the proper judgment . . . .

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Our supreme court has said that an indictment is sufficient if it provides adequate

information to enable the defendant to know the accusation against which he must

defend, furnishes the trial court with an adequate basis for entry of a proper judgment,

and protects the defendant from double jeopardy. See State v. Hill, 954 S.W.2d 725, 727

(Tenn. 1997); see also Wyatt v. State, 24 S.W.3d 319, 324 (Tenn. 2000). The supreme

court has held that “indictments which achieve the overriding purpose of notice to the

accused will be considered sufficient to satisfy both constitutional and statutory

requirements.” State v. Hammonds, 30 S.W.3d 294, 300 (Tenn. 2000). In this regard,

“specific reference to a statute within the indictment may be sufficient to place the

accused on notice of the charged offense.” State v. Sledge, 15 S.W.3d 93, 95 (Tenn.

2000). The indictment “need not allege the specific theory or means by which the State

intends to prove each element of an offense to achieve the overriding purpose of notice to

the accused.” Hammonds, 30 S.W.3d at 300. Thus, the State is not required to assert a

theory of criminal responsibility in the charging instrument. State v. Lemacks, 996

S.W.2d 166, 172-73 (Tenn. 1999).

The indictments were not included in the appellate record, but they were read into

evidence at the trial. The aggravated robbery indictment in No. 98-01033 read as

follows:

Count 1, The grand jurors of the State of Tennessee . . . present that

[the Defendant], during the period of time between February 7th 1997, and

February 8th, 1997, in Shelby County, Tennessee, and before the finding of

this indictment, intentionally or knowingly did take from [the victim] a sum

of money of value by violence or putting [the victim] in fear. And the

victim . . . suffered serious bodily injury, in violation of Tennessee Code

Annotated 39-13-402 . . . .

The murder indictment in No. 98-01034 stated:

Count 1, The grand jurors of the [S]tate of Tennessee . . . present

that [the Defendant] during the period of time between February 7th 1997,

and February 8th, 1997, in [C]ounty of Shelby, Tennessee, and before the

finding of this indictment did unlawfully, intentionally, and with

premeditation kill [the victim] in violation of Tennessee Code Annotated

39-13-202 . . . .

Count 2[,] The grand jurors of the State of Tennessee . . . present

that [the Defendant], during the period of time between February 7th, 1997,

and February 8th, 1997, in Shelby County, Tennessee, did unlawfully, with

the intent to commit robbery, kill [the victim] during the perpetration of or

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attempt to perpetrate robbery, in violation of Tennessee Code Annotated

39-13-202 . . . .

The elements of aggravated robbery, premeditated murder, and felony murder

were clearly set forth in the indictment, along with the statutes for each. The Defendant

contends that the State’s rebuttal closing argument included statements that other persons

were involved in the crimes and that these assertions “surprised” him. However, the

State is not required to set forth its theory of guilt in the indictment. The State’s

argument was based on the proof submitted at trial, including witness testimony that

more than one person was participated in the crimes at the motel on the night the victim

disappeared. The Defendant is not entitled to relief on this basis.

II. Double Jeopardy

The Defendant asserts that the trial court erred in denying his motion to dismiss

Count 2 of the indictment charging him with felony murder. He argues that the felony

murder charge violated double jeopardy principles because a verdict was not returned on

that count in his first trial. The State responds that the failure to return a verdict was not

an implicit acquittal because the court had instructed the jury not to consider felony

murder if it found the Defendant guilty of first degree premeditated murder.

The double jeopardy clause of the Fifth Amendment to the United States

Constitution, applicable to the states through the Fourteenth Amendment, provides that

no person shall “be subject for the same offense to be twice put in jeopardy of life or limb

. . . .” Article 1, Section 10 of the Tennessee Constitution provides that “no person shall,

for the same offense, be twice put in jeopardy of life or limb.” The clause has been

interpreted to offer the following protections: “It protects against a second prosecution for

the same offense after acquittal. It protects against a second prosecution for the same

offense after conviction. And it protects against multiple punishments for the same

offense.” North Carolina v. Pearce, 395 U.S. 711, 717 (1969); see State v. Phillips, 924

S.W.2d 662, 664 (Tenn. 1996). The principle applies in cases in which “no final

determination of guilt or innocence has been made” and in which a jury has been given

the opportunity to return a verdict on a charge in one trial but failed to do so, impliedly

acquitting the defendant of that charge. United States v. Scott, 437 U.S. 82, 92 (1978);

Price v. Georgia, 398 U.S. 323, 329 (1970).

During the Defendant’s November 1998 trial, the trial court instructed the jury in

pertinent part:

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Indictment number 98-01034 charges the defendant with the offense

of MURDER IN THE FIRST DEGREE. This indictment is in two (2)

counts.

The First Count of indictment number 98-01034 charge that the

defendant did unlawfully, intentionally and with premeditation kill RICCI

LYNN ELLSWORTH. This offense embarces and includes the lesser

offenses of MURDER IN THE SECOND DEGREE, and VOLUNTARY

MANSLAUGHTER.

The Second Count of indictment number 98-01034 charges that the

defendant did unlawfully, and with the intent to commit robbery, kill

RICCI LYNN ELLSWORTH during the perpetration of ROBBERY.

Indictment number 98-01033 charges the defendant with the offense

of AGGRAVATED ROBBERY. This offense embraces and includes the

lesser offenses of ROBBERY and THEFT OF PROPERTY OVER $500.

Indictment number 97-02819 is in two (2) counts. Both counts

charge the defendant with the offense of THEFT OF PROPERTY.

These three indictments have been consolidated for trial at one time,

but it must be remembered at all times that even though the indictments are

being tried together, they are separate and distinct cases and must be treated

by the Jury as such.

....

You may convict the defendant on all indictments, or acquit him on

all indictments; or convict on one and acquit on the others. If you find from

the evidence, beyond a reasonable doubt, the defendant guilty [sic] of each

indictment, you should convict on each. If you find from the evidence,

beyond a reasonable doubt, one indictment guilty [sic] and have a

reasonable doubt as to the guilt of the other indictments, you should convict

on the one you are satisfied beyond a reasonable doubt of, and acquit on all

the others. If you have a reasonable doubt as to the guilt on all, you should

acquit on all.

As to the Theft indictment only, 97-02817, you may convict the

defendant on both counts; or convict on one and acquit on the other. If you

find from the evidence, beyond a reasonable doubt, the defendant of both

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counts guilty [sic], you should convict on both. If you find from the

evidence, beyond a reasonable doubt, one count guilty [sic], and have a

reasonable doubt as to the guilt of the other count, you should convict on

the one you are satisfied beyond a reasonable doubt as to the guilt of, and

acquit on the other. If you have a reasonable doubt as to the guilt on both,

you should acquit on both.

....

When you retire to consider your verdict in indictment number 98-

01034, you will first inquire, is the defendant guilty of Murder in the First

Degree as charged in the First Count of the indictment? If you find the

defendant guilty of this offense, beyond a reasonable doubt, your verdict

should be,

“We the Jury, find the defendant guilty of Murder in the First Degree

as charged in the First Count of the Indictment.”

If you find the defendant not guilty of this offense, or if you have a

reasonable doubt of his guilt of this offense, you will acquit him thereof and

then proceed to inquire whether or not he is guilty of Murder in the First

Degree During the Perpetration of a Robbery as charged in the Second

Count of the indictment.

If you find, beyond a reasonable doubt, that the defendant is guilty

of this offense, your verdict should be,

“We the Jury, find the defendant guilty of Murder in the First Degree

During the Perpetration of a Robbery as charged in the Second Count of the

indictment.”

If you find the defendant not guilty of this offense, or if you have a

reasonable doubt of his guilt of this offense, you will acquit him thereof and

then proceed to inquire whether or not he is guilty of Murder in the Second

Degree as included in the First Count of the Indictment.

If you find, beyond a reasonable doubt, that the defendant is guilty

of this offense, your verdict should be,

“We, the Jury, find the defendant guilty of Murder in the Second

Degree as included in the First Count of the Indictment.”

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If you find the defendant not guilty of this offense, or if you have a

reasonable doubt of his guilt of this offense, you will acquit him thereof and

then proceed to inquire whether or not he is guilty of Voluntary

Manslaughter as included in the First Count of the indictment.

If you find, beyond a reasonable doubt, that the defendant is guilty

of this offense, your verdict should be,

“We, the Jury, find the defendant guilty of Voluntary Manslaughter

as included in the First Count of the Indictment.”

If you do find the defendant guilty, you can convict him of only one

of the above named offenses charged and included in this indictment . . . .

Next, the trial court instructed the jury as to the single count of aggravated robbery

charged in indictment 98-01034 and as to the two counts of theft charged in indictment

97-02817.

The jury convicted the Defendant of first degree premeditated murder and returned the

verdict for Count 1 without returning a verdict for felony murder in Count 2, as instructed

by the court. The jury also returned guilty verdicts for aggravated robbery and theft. See

State v. Michael Dale Rimmer, No. W2004-02240-CCA-R3-DD, 2006 WL 3731206, slip

op. at 1 (Tenn. Crim. App. Dec. 15, 2006), aff’d, 205 S.W.3d 12.

This type of jury instruction, in which the jury is told to consider a lesser included

offense only when it acquits of the greater offense, has been referred to as a “sequential”

or “acquittal first” instruction. See Harris v. State, 947 S.W.2d 156, 175-76 (Tenn. Crim.

App. 1996). Our supreme court has upheld the validity of such instructions, while also

cautioning that their use could potentially give rise to a double jeopardy problem. State

v. Howard, 30 S.W.3d 271, 274 n.4 (Tenn. 2000) (“While it was not error for the trial

court to deliver sequential jury instructions, we have previously urged trial courts to

allow juries to consider all theories of first-degree murder.”) (internal citations omitted).

Despite this potential problem, both this court and the supreme court have allowed new

trials of charges for which no verdicts were reached and in which sequential instructions

were given. See State v. Madkins, 989 S.W.2d 697, 699 (Tenn. 1999); State v. Burns,

979 S.W.2d 276, 291 (Tenn. 1998); State v. John E. Parnell, No. W1999-00562-CCA-

R3-CD, 2001 WL 124526, at *6 (Tenn. Crim. App. Feb. 6, 2001); State v. David William

Smith, No. 03C01-9809-CR-00344, 2000 WL 210378, at *6 (Tenn. Crim. App. Feb. 24,

2000).

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This court previously ordered a new trial under circumstances almost identical to

those in this case. In State v. Antonio Saulsberry, the defendant was indicted for one

count of premeditated murder, two counts of felony murder, and one count each of

especially aggravated robbery and conspiracy to commit a felony. No. 2005-00316-

CCA-R9-CD, 2006 WL 2596771, at *2 (Tenn. Crim. App. Sept. 11, 2006), perm. app.

denied (Tenn. Jan. 29, 2007). He was convicted of first degree premeditated murder,

especially aggravated robbery, and conspiracy to commit aggravated robbery. His

conviction for premeditated murder was reversed on appeal, and his remaining

convictions were affirmed. Thereafter, the State sought a new trial on the two counts of

felony murder. The defendant filed a motion to dismiss the indictment, arguing that the

new trial violated principles of double jeopardy. Id. at *1-3. This court concluded that

double jeopardy principles did not preclude a subsequent trial of the felony murder

charges. Id. at *5. The court noted that the sequential jury instructions, as provided in

this case, led to a presumption that the jury never considered the felony murder charges

after reaching a guilty verdict on premeditated murder. Id.

The jury at the Defendant’s first trial was instructed to consider the felony murder

charge only if it returned a not guilty verdict for premeditated murder. A jury is

presumed to follow the trial court’s instructions. Nesbit v. State, 452 S.W.3d 779, 799

(Tenn. 2014). We conclude that in this case the lack of a jury verdict on the felony

murder count at the first trial was not an implicit acquittal and that double jeopardy

principles were not violated at the second trial. The Defendant is not entitled to relief on

this basis.

III. Motion to Suppress DNA Evidence

The Defendant contends that the trial court erred in denying his motion to suppress

DNA evidence. He asserts that the State destroyed the maroon Honda without affording

the defense an opportunity to inspect it. The State avers that consideration of this issue is

barred by the doctrine of collateral estoppel because it was previously determined by the

post-conviction court. Alternatively, the State asserts that the issue is without merit

because it was not obligated to preserve an entire automobile indefinitely when the State

had documented the car and its contents and preserved evidence obtained from it.

A. Collateral Estoppel

In his petition for post-conviction relief, the Defendant contended that the State’s

failure to preserve the Honda for inspection by the defense violated his right to due

process under the law. The post-conviction court rejected this argument, concluding that

the State did not have a duty to preserve the car.

- 14 -

The doctrine of collateral estoppel has been applied infrequently in criminal cases.

See State v. David Scarbrough, No. E2003-02850-CCA-R9-CD, 2004 WL 2280423, at

*8 (Tenn. Crim. App. Oct. 11, 2004) (noting that, at the time, no Tennessee appellate

court had considered the issue of offensive collateral estoppel in criminal cases). Our

supreme court has acknowledged that the doctrine’s application may be appropriate in

some criminal cases. See State v. Flake, 114 S.W.3d 487, 507 (Tenn. 2003) (choosing to

address a suppression issue on the merits even though the State argued collateral estoppel

applied because a court had previously rejected the issue in a petition to rehear). We

address this issue on the merits and decline to apply the doctrine of collateral estoppel.

B. Due Process Violation

The Defendant filed a motion to suppress DNA evidence gathered from the

maroon Honda, arguing that the State’s failure to preserve the car deprived the defense of

its ability to perform its own testing and violated his right to due process. The Defendant

asserts he was prejudiced in two ways: (1) he was unable to inspect the back seat upon

which blood was located, noting “a continuing dispute as to the amount of blood” on the

back seat and (2) he was unable to inspect the trunk to determine whether any blood was

inside, noting that a witness testified that someone placed a large object rolled up in a

“sheet” into the trunk, causing the trunk to sink. The Defendant argues that the testimony

implied the victim’s body was placed in the trunk and that, based on the amount of blood

found in the bathroom, the trunk likely contained blood evidence. At the pretrial hearing,

the trial court repeatedly pressed the Defendant to explain what benefit the defense could

have derived from the destroyed evidence. The Defendant argued it would have been

exculpatory if the trunk did not contain blood.

The trial court determined that the State had no duty to preserve the Honda. The

court concluded that the Defendant could receive a fundamentally fair trial without

having the car for inspection. The court noted that even if no blood were found in the

trunk, or someone else’s blood were found there, it would not exculpate the Defendant

given the other evidence in the car connecting him to the victim’s disappearance.

At the trial, Linda Littlejohn testified that she was employed by the Tennessee

Bureau of Investigation (TBI), and that in 1997, she worked as a forensic scientist in the

microanalysis unit processing trace evidence. She processed the maroon Honda, which

included taking photographs, obtaining an inventory of the car’s contents, and vacuuming

the car to capture hair and fibers. She also removed portions of the carpet and cloth seats.

After the car was processed, it was released by the police department.

- 15 -

TBI forensic scientist Samera Zavaro testified that she conducted serological

analysis on evidence obtained from the crime scene and the maroon Honda. She

collected samples from the car that appeared to be blood, which included taking swabs of

hard surfaces and cuttings from fabric. She did not take samples from the trunk.

Our supreme court has “explained that the loss or destruction of potentially

exculpatory evidence may violate a defendant’s right to a fair trial.” State v. Merriman,

410 S.W.3d 779, 784 (Tenn. 2013) (citing State v. Ferguson, 2 S.W.3d 912 915-16

(Tenn. 1999)). The court observed that “the due process required under the Tennessee

Constitution was broader than the due process required under the United States

Constitution” and rejected the “bad faith” analysis espoused by the United States

Supreme Court in favor of “a balancing approach in which bad faith is but one of the

factors to be considered in determining whether the lost or destroyed evidence will

deprive a defendant of a fundamentally fair trial.” Merriman, 410 S.W.3d at 784-85; see

Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (holding that “[u]nless a criminal

defendant can show bad faith on the part of the police, failure to preserve potentially

useful evidence does not constitute a denial of due process of law”). Our supreme court

“observed that fundamental fairness, as an element of due process, requires a review of

the entire record to evaluate the effect of the State’s failure to preserve evidence.”

Merriman, 410 S.W.3d at 784-85 (citing Ferguson, 2 S.W.3d at 914, 917).

To facilitate this “balancing approach,” our supreme court stated that the trial

court must first “determine whether the State had a duty to preserve the evidence,”

observing that the State’s duty to preserve was “limited to constitutionally material

evidence.” Id. at 785. The court held that to be “constitutionally material,” the evidence

“must potentially possess exculpatory value and be of such a nature that the defendant

would be unable to obtain comparable evidence by other reasonably available means.”

Id. (citing Ferguson, 2 S.W.3d at 915, 918). “If the trial court determines that the State

had a duty to preserve the evidence, the court must determine if the State failed in its

duty.” Id. (citing Ferguson, 2 S.W.3d at 917). If the trial court concludes that the State

lost or destroyed evidence that it had a duty to preserve, the trial court must consider

three factors to determine the appropriate remedy for the State’s failure: “‘(1)[t]he degree

of negligence involved; (2)[t]he significance of the destroyed evidence, considered in

light of the probative value and reliability of secondary or substitute evidence that

remains available; and (3)[t]he sufficiency of the other evidence used at trial to support

the conviction.’” Id. (quoting Ferguson, 2 S.W.3d at 917). “If the trial court concludes

that a trial would be fundamentally unfair without the missing evidence, the trial court

may then impose an appropriate remedy to protect the defendant’s right to a fair trial,

including, but not limited to, dismissing the charges or providing a jury instruction.” Id.

at 785-86.

- 16 -

This court reviews a trial court’s decision concerning the fundamental fairness of a

trial conducted without the destroyed evidence under a de novo standard of review. Id. at

791. If this court concludes that the trial would be fundamentally unfair in the absence of

the lost evidence, this court will apply an abuse of discretion standard to review the

appropriateness of the remedy imposed by the trial court. Id. at 792.

Our analysis begins by considering whether the State had a duty to preserve the

car. The duty to preserve arises only when the evidence is constitutionally material. The

Defendant contends that the evidence is material because a lack of blood in the trunk

would have undermined witness testimony implying that the victim’s body was placed in

the trunk. He asserts that this would have allowed him to argue that the maroon Honda

he drove was not the same car seen at the motel and, by implication, used in the crimes.

However, the Defendant has not articulated how evidence from the trunk would have

been exculpatory. As the trial court noted, a lack of blood in the trunk would not have

negated the evidence that a large blood stain, which matched the victim’s DNA, was

found in the backseat of the car. We conclude that any evidence that no blood was found

in the trunk would not have been exculpatory. Consequently, the State did not have a

duty to preserve the car because the trunk evidence was not constitutionally material.

The Defendant further contends that the trial court erred in refusing to provide a

jury instruction relative to the State’s release of the car. However, a jury instruction is a

remedy to be employed only after the court determines that the State had a duty to

preserve evidence. Because the court did not err in finding that the State did not have a

duty to preserve the car, a jury instruction was not required. The Defendant is not

entitled to relief on this issue.

IV. State’s Opening Statement

The Defendant next asserts that the trial court erred in not striking the State’s

opening statement or in not declaring a mistrial when the prosecutor said that the car had

been “taken.” The Defendant argues that the State’s reference to the car implied it had

been stolen, which violated the court’s pretrial order prohibiting the State from referring

to the car as stolen, pursuant to Tennessee Rule of Evidence 404(b), and due process.

The State disagrees, arguing that reference to the car as “taken” did not violate the court’s

pretrial ruling, that Rule 404(b) does not apply to opening statements, and that any due

process violation was by failing to object at the trial and in the motion for new trial.

In addition to the aggravated robbery and murder charges, the Defendant was

indicted for the theft of the Featherstons’ maroon Honda. However, the trial court

severed the theft charge prior to trial. The court determined that the theft was not part of

the same criminal transaction as the murder and aggravated robbery. It also prohibited

- 17 -

the State from eliciting evidence that the car had been stolen. However, the court

permitted the State to show that the Defendant had control of the car before and after

February 7, 1997, in order to establish that he was the perpetrator of the aggravated

robbery and murder. It recognized that the Defendant’s possession of the car before and

after the victim’s disappearance was “very material” to his identity as the perpetrator.

In the opening statement, the prosecutor said the following:

[F]rom February 8th through March 5th, [the Memphis Police Department]

had been looking for [the Defendant] everywhere they could. They also

knew that there was, obviously, some interest in this vehicle, maroon

vehicle, and they ended up locating that - - a friend that had worked with

[the Defendant] owned a vehicle matching that description. And learned

that that vehicle had been taken from outside [the Featherstons’] home.

And so the police are going to be on the lookout for this tag number and

this vehicle.

At the conclusion of the statement, the Defendant objected to the State’s use of the word

“taken,” moved to have the statement stricken, and argued that it was grounds for a

mistrial. According to the Defendant, the State’s words gave a “clear implication” that he

had stolen the car, violating the court’s order. The State argued that its statement did not

violate the court’s ruling because the car could have been borrowed or have been missing

due to a misunderstanding.

The trial court determined that the State did not violate its order or necessitate a

mistrial. The court found that the State had a right to show that the Defendant took the

car and that the car was missing but not that any crime was committed when the car was

taken. The court emphasized that the State would not be allowed to elicit testimony

about whether the Defendant had permission to take the car or whether the police were

called in response.

Opening statements “are intended merely to inform the trial judge and jury, in a

general way, of the nature of the case and to outline, generally, the facts each party

intended to prove.” State v. Reid, 164 S.W.3d 286, 343 (Tenn. 2005). Opening

statements are not evidence. State v. Thompson, 43 S.W.3d 516, 523 (Tenn. Crim. App.

2000). Trial courts should allow the parties to present “a summary of the facts supportive

of the respective theories of the case, only so long as those ‘facts are deemed likely to be

supported by admissible evidence.’” State v. Sexton, 368 S.W.3d 371, 415 (Tenn. 2012)

(quoting Stanfield v. Neblett, 339 S.W.3d 22, 41-42 (Tenn. Ct. App. 2010)). Therefore,

opening statements should “be predicated on evidence introduced during the trial” and

- 18 -

should never refer “to facts and circumstances which are not admissible in evidence.”

Sexton, 368 S.W.3d at 415.

A trial judge should declare a mistrial if manifest necessity arises. Arnold v. State,

563 S.W.2d 792, 794 (Tenn. Crim. App. 1977). Manifest necessity occurs when “no

feasible alternative to halting the proceedings” exists. State v. Knight, 616 S.W.2d 593,

596 (Tenn. 1981). “The granting or denial of a mistrial is within the sound discretion of

the trial court.” State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996); see

State v. Jones, 802 S.W.2d 221, 222 (Tenn. Crim. App. 1990). This court will only

disturb that decision if the trial court abused its discretion. State v. Adkins, 786 S.W.2d

642, 644 (Tenn. 1990).

The Defendant cites to a single authority to support his argument that the use of

the word taken during the opening statement was improper. In State v. James C. Greene,

Jr., the defendant challenged his conviction on the basis that the State referred to

inadmissible hearsay in its opening statement. No. 03C01-9407CR00247, 1995 WL

564939, at *1 (Tenn. Crim. App. Sept. 26, 1995). The trial court prohibited the State

from introducing evidence that the police had conducted surveillance on the defendant

based on information that he was involved in illegal activity. During the opening

statement, the prosecutor said, “[T]he Third Judicial Drug Task Force had information

that [the defendant was] dealing drugs.” The defendant immediately objected to

relevance and requested a mistrial. The court overruled the motion for a mistrial but

sustained the objection and advised the jury to disregard the statement and not consider it

for any purpose. Id. at *3.

On appeal, this court held that the defendant was not harmed by the prosecutor’s

statement and that a mistrial was not required. Id. at *4. The proof adduced at the trial

showed that the defendant was an admitted drug abuser but was not a seller. The court

concluded that the proof offered at the trial was not affected by the opening statement and

that the jury acquitted the defendant of possession with intent to sell or deliver. Id.

James C. Greene, Jr. is distinguishable from the present case because in James C.

Greene, Jr., the prosecutor explicitly defied the trial court’s order. However, in the

present case, the trial court concluded that the State’s comment did not run afoul of the

pretrial order and reiterated that the State was allowed to show that the Defendant had

possession of the car before and after the victim’s disappearance to establish his identity

as the perpetrator. The court attempted to balance the State’s right to use the evidence to

prove the perpetrator’s identity and the Defendant’s right to fairness by excluding

evidence of the theft. We conclude that the court did not abuse its discretion in refusing

to strike the opening statement or to grant a mistrial. The Defendant is not entitled to

relief on this basis.

- 19 -

The Defendant also contends that the use of the word taken was a Fifth

Amendment due process violation. He did not object on this basis at the trial, and the

general contention is the extent of his argument on appeal. “In this jurisdiction, a party is

bound by the ground asserted when making an objection. The party cannot assert a new

or different theory to support the objection . . . in the appellate court.” State v. Adkisson,

899 S.W.2d 626, 634 (Tenn. Crim. App. 1994). When a party asserts new grounds in the

appellate court, the issue is treated as waived. Id. at 635. Furthermore, “[i]ssues which

are not supported by argument, citation to authorities, or appropriate references to the

record will be treated as waived in this court.” Tenn. Ct. Crim. App. R. 10(b). The

Defendant’s failure to object on this basis at the trial or to adequately address the issue in

his brief qualifies the issue for waiver. However, we will review this issue for plain

error.

Five factors are relevant

when deciding whether an error constitutes “plain error” in

the absence of an objection at trial: “(a) the record must

clearly establish what occurred in the trial court; (b) a clear

and unequivocal rule of law must have been breached; (c) a

substantial right of the accused must have been adversely

affected; (d) the accused did not waive the issue for tactical

reasons; and (e) consideration of the error is ‘necessary to do

substantial justice.’”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting Adkisson, 899 S.W.2d at 641-

42). All five factors must exist in order for plain error to be recognized. Id. at 283.

“[C]omplete consideration of all the factors is not necessary when it is clear from the

record that at least one of the factors cannot be established.” Id. In order for this court to

reverse the judgment of a trial court, the error must be “of such a great magnitude that it

probably changed the outcome of the trial.” Id.; Adkisson, 899 S.W.2d at 642. A

defendant carries the burden of proving that the trial court committed plain error. See

State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007).

The Defendant has not shown that the State’s use of the word taken amounted to a

violation of due process that adversely affected a substantial right. “For a ‘substantial

right’ of the accused to have been affected, the error must have prejudiced the appellant.

In other words, it must have affected the outcome of the trial court proceedings.” State v.

Maddin, 192 S.W.3d 558, 562 (Tenn. Crim. App. 2005). The State’s single use of the

word taken in its opening statement comported with the trial court’s previous ruling and

with the evidence presented at trial. The Defendant is not entitled to relief on this issue.

- 20 -

V. Evidence of Prior Assault on Victim and Escape Attempts

The Defendant contends that the trial court erred in admitting evidence related to

his prior convictions for aggravated assault and rape of the victim. He asserts that the

prior convictions are propensity evidence, the admission of which was prohibited by

Tennessee Rule of Evidence 404(b). He also claims that the probative value of the

evidence was not substantially outweighed by the danger of unfair prejudice. See Tenn.

R. Evid. 403. He further contends that the court erred in admitting evidence of his escape

attempts, including testimony that two “shanks” were found in his cell. The State

responds that the court correctly admitted the evidence of the prior assault because it was

highly probative to show motive, intent, and premeditation. The State argues that the

court gave extensive jury instructions relative to the intended use of the evidence.

Similarly, the State argues that the escape attempts were properly admitted to show

consciousness of guilt.

The Defendant filed a pretrial motion pursuant to Tennessee Rule of Evidence

404(b) to exclude evidence of his prior convictions for the aggravated assault and rape

and of his escape attempts. After a hearing, the trial court determined that the

“extremely” high probative value of the prior convictions outweighed their prejudicial

effect. In particular, the court found that the victim in the present case was also the

victim of the aggravated assault and rape, which evidenced the Defendant’s motive,

intent, premeditation, and identity in the present case. Further, the court found that

admission of the escape attempts was proper to show consciousness of guilt.

Tennessee Rule of Evidence 404(b) prohibits the admission of evidence related to

other crimes, wrongs, or acts offered to show a character trait in order to establish that a

defendant acted in conformity with the trait. Tenn. R. Evid. 404(b). Such evidence,

though, “may . . . be admissible for other purposes,” including, but not limited to,

establishing identity, motive, common scheme or plan, intent, or absence of mistake. Id.;

see State v. McCary, 119 S.W.3d 226, 243 (Tenn. Crim. App. 2003). Before a trial court

determines the admissibility of such evidence,

(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.

- 21 -

Tenn. R. Evid. 404(b)(1)-(4). The standard of review is for an abuse of discretion,

provided a trial court substantially complied with the procedural requirements. State v.

DuBose, 953 S.W.2d 649, 652 (Tenn. 1997); see State v. Electroplating, Inc., 990 S.W.2d

211 (Tenn. Crim. App. 1998).

The rationale behind the general rule of inadmissibility in Rule 404(b) is that the

admission of evidence of other wrongs poses a substantial risk that the trier of fact may

convict a defendant based upon the defendant’s bad character or propensity to commit

criminal offenses, rather than upon the strength of the evidence of guilt on the specific

offense for which the defendant is on trial. State v. Dotson, 254 S.W.3d 378, 387 (Tenn.

2008); State v. James, 81 S.W.3d 751, 758 (Tenn. 2002).

Evidence of other crimes, wrongs, or acts may be admitted as relevant to issues of

“identity (including motive and common scheme or plan), intent, or rebuttal of accident

or mistake.” Tenn. R. Evid. 404(b), Advisory Comm’n Cmts.; see Burch v. State, 605

S.W.2d 227, 229 (Tenn. 1980). To minimize the risk of unfair prejudice in the

introduction of evidence of other acts, however, Rule 404(b) establishes protective

procedures that must be followed before the evidence is admissible. See Tenn. R. Evid.

404(b); James, 81 S.W.3d at 758. Upon request, the trial court must hold a hearing

outside the jury’s presence to determine whether the evidence of the other acts is relevant

to prove a material issue other than the character of the defendant. James, 81 S.W.3d at

758. The trial court must state on the record the specific issue to which the evidence is

relevant and find the evidence of the other crime or act to be clear and convincing. Id. If

the trial court substantially follows the procedures in Rule 404(b), the court’s decision

will be given great deference on appeal and will be reversed only if the trial court abused

its discretion. Id. The Defendant acknowledges that the trial court followed the

procedures required by Rule 404(b).

With respect to the prior convictions, the record reflects that the trial court

carefully weighed the probative value against the danger of unfair prejudice. The

relevant convictions were for violent offenses and involved the victim in the present case.

The Defendant had been incarcerated for these crimes, and other evidence showed he

made incriminating statements to a fellow inmate about his desire to kill the victim. The

record supports the court’s conclusion that the evidence had high probative value of

showing motive, intent, premeditation, and identity, and the probative value of the

evidence outweighed the danger of unfair prejudice. The court followed the prerequisites

for admission under Rule 404(b), and we conclude that the court did not abuse its

discretion in admitting this evidence.

- 22 -

Similarly, the record supports the trial court’s admission of the evidence of the

Defendant’s prior escape attempts, including testimony that two shanks were found in his

jail cell. “[E]vidence that an accused has escaped from custody, or attempted to escape

from custody, after being charged with a criminal offense is admissible for the purpose of

establishing the accused’s guilt, consciousness of guilt, or knowledge of guilt.” State v.

Burton, 751 S.W.2d 440, 450 (Tenn. 1988). The evidence of the shanks corroborated

details of the Defendant’s escape plan that he intended to take a guard hostage and to kill

a guard if necessary. The court instructed the jury that it was only to consider this

evidence to determine the Defendant’s consciousness of guilt. The court did not abuse its

discretion in finding that the probative value of this evidence outweighed the danger of

unfair prejudice. The Defendant is denied relief on this issue.

VI. William Baldwin’s Testimony

The Defendant asserts that the trial court erred in prohibiting William Baldwin

from testifying about a statement made by an MPD detective. The Defendant argues that

exclusion of this evidence violated Tennessee Rules of Evidence 401 and 402. He also

asserts that the MPD lost a video recording made by Mr. Baldwin, which violated Brady

v. Maryland, 373 U.S. 83 (1963). The State asserts that the court did not err because the

proffered testimony was hearsay from an unknown police officer and was irrelevant. The

State further responds that the Brady issue has been waived because it was not raised in

the motion for new trial.

William Baldwin was an evidence technician for the Johnson County, Indiana

Sheriff’s Department. Before Mr. Baldwin testified at the trial, the Defendant sought

permission to question Mr. Baldwin outside the presence of the jury regarding a

statement he overheard when he processed the car. According to the Defendant, Mr.

Baldwin overheard an MPD detective say, “Well, it looks like the n----r did it.” The

State opposed admission of the statement, arguing that Mr. Baldwin could not identify

the person who allegedly made the statement and that it was inadmissible hearsay. The

Defendant admitted that there was never an African-American suspect and that the

evidence would not be offered to prove that an African-American committed the crime.

However, he argued that the evidence was exculpatory. The Defendant surmised that if

he could prove Detective Shemwell made the statement, the statement was relevant to

Detective Shemwell’s credibility. The trial court ruled that the evidence was irrelevant

and inadmissible. The court further expressed skepticism that Mr. Baldwin heard what

he thought he heard, noting that “Rimmer did it” sounded very similar and made more

sense in context.

Evidence is relevant and generally admissible when it has “any tendency to make

the existence of any fact that is of consequence to the determination of the action more

- 23 -

probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401,

402. Questions regarding the admissibility and relevancy of evidence generally lie within

the discretion of the trial court, and the appellate courts will not “interfere with the

exercise of that discretion unless a clear abuse appears on the face of the record.” State v.

Franklin, 308 S.W.3d 799, 809 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d 136, 141

(Tenn. 2007)).

A trial court abuses its discretion when it applies an incorrect legal standard or

reaches a conclusion that is “illogical or unreasonable and causes an injustice to the party

complaining.” State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006). Relevant evidence,

however, “may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of cumulative

evidence.” Tenn. R. Evid. 403.

We conclude that the trial court did not abuse its discretion by determining that the

proffered evidence was not relevant. The Defendant admitted there was never an

African-American suspect. The Defendant is not entitled to relief on this basis.

The Defendant also argues that the exclusion of this evidence “violated the Fifth

Amendment to the United States Constitution.” This general contention is the extent of

his argument. Although the Defendant raised the issue in his motion for a new trial, he

did not contemporaneously object at the trial. See Adkisson, 899 S.W.2d at 634; Tenn.

Ct. Crim. App. R 10(b); Tenn. R. Evid. 103(a), (b). In any event, we will review the

issue for plain error.

“An evidentiary ruling ordinarily does not rise to the level of a constitutional

violation.” State v. Powers, 101 S.W. 3d 383, 397 (Tenn. 2003) (citing Crane v.

Kentucky, 476 U.S. 683, 689 (1986)). To determine whether the exclusion of evidence

rises to the level of a constitutional violation, courts consider the following: (1) whether

the evidence is critical to the defense, (2) whether it bears sufficient indicia of reliability,

and (3) whether the interest supporting exclusion is substantially important. State v.

Brown, 29 S.W. 3d 427, 433-34 (Tenn. 2000).

The excluded evidence in this case was not critical to the defense because the

Defendant conceded that there was never an African-American suspect. A substantial

right of the Defendant was not adversely affected. See Smith, 24 S.W.3d at 282. The

Defendant is not entitled to relief on this issue.

Finally, the Defendant alleges that law enforcement’s failure to preserve the

videotape and to provide it to the defense violated Brady. The Defendant did not raise

- 24 -

this issue at the trial or include the issue in his motion for new trial and his appellate

argument is limited to one sentence. See Adkisson, 899 S.W.2d at 634; Tenn. Ct. Crim.

App. R 10(b). Our review is limited to plain error.

Mr. Baldwin testified that he videotaped his inventory of the car and that the

recording contained audio. The recording allegedly captured the statement, “[T]he n----r

did it.” Mr. Baldwin testified that he thought he provided the recording to the MPD but

that he was not sure. Mr. Baldwin explained that the recording was not listed on the

computer inventory list of all the items turned over to the MPD. He thought that he gave

“everything” to the MPD and said that he had no reason to retain the recording.

However, he had no record of providing it to MPD.

The defense argued that Mr. Baldwin’s testimony supported its theory that the

MPD intentionally destroyed the recording because the recording pointed to someone

other than the Defendant as a suspect and that the MPD, and Detective Shemwell in

particular, had “tunnel vision” in investigating the Defendant.

The trial court found that no evidence supported the Defendant’s theory that

Detective Shemwell intentionally destroyed the recording. The court noted that the

detective had no reason to destroy the recording to cover up the possible identity of an

African American suspect because there was no indication that an African-American

suspect existed. The court concluded that the “whole thing is just an absolute nonissue.”

However, the court allowed the defense to ask Mr. Baldwin whether a videotape was

made, whether he remembered giving it to MPD, and whether it was available at the time

of trial.

The Due Process Clause of the Fourteenth Amendment to the United States

Constitution and article I, section 8 of the Tennessee Constitution afford every criminal

defendant the right to a fair trial. See Johnson v. State, 38 S.W.3d 52, 55 (Tenn. 2001).

As a result, the State has a constitutional duty to furnish a defendant with exculpatory

evidence pertaining to his guilt or lack thereof or to the potential punishment faced by a

defendant. See Brady, 373 U.S. at 87.

In order to show a due process violation pursuant to Brady, the defendant must

prove by a preponderance of the evidence that (1) he requested the information, unless it

is obviously exculpatory, (2) the State must have suppressed the information, (3) the

information must be favorable to the accused, and (4) the information must be material.

State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). Favorable evidence includes that

which “challenges the credibility of a key prosecution witness.” Johnson, 38 S.W.3d at

56-57 (internal quotation marks and citation omitted). Evidence is material when “‘there

is a reasonable probability that, had the evidence been disclosed to the defense, the result

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of the proceeding would have been different.’” Id. at 58 (quoting Edgin, 902 S.W.2d at

390).

The Defendant has not shown that a clear and unequivocal rule of law was

breached because the evidence does not show that the recording was material. A

recording of one of the investigating detectives stating “the n----r did it” would not have

cast doubt on the Defendant’s identity as the perpetrator. Although the recording would

have established that a detective engaged in unprofessional conduct, there is no

reasonable probability that the jury would have acquitted the Defendant based upon the

comment. The Defendant is not entitled to relief on this issue.

VII. Drawing of the Honda Backseat

The Defendant alleges that the trial court erred when it allowed into evidence a

drawing of the backseat of the car. According to the Defendant, the drawing did “not

reflect the true condition of the backseat” and was admitted in violation of Tennessee

Rule of Evidence 403. The State disagrees, claiming that the court’s determination that

the drawing would assist the jury was reasonable.

Tennessee Rule of Evidence 403 states that, “although relevant, evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative evidence.” The decision to

admit evidence will be reversed “only when the court applied an incorrect legal standard,

or reached a decision which is against logic or reasoning” and the admission of the

evidence “caused an injustice to the party complaining.” State v. Gilliland, 22 S.W.3d

266, 270 (Tenn. 2000) (quoting State v. Shirley, 6 S.W.3d 243, 249 (Tenn. 1999)).

TBI agent and forensic serologist Samera Zavaro testified that she processed the

car for blood evidence. When she located a reddish-brown stain, she conducted a

presumptive blood field test. If the surface was fabric and resulted in a positive

presumptive test, she took cuttings of the stained area and later conducted tests of the

cuttings to determine whether they contained human blood. If the stain was found on a

hard surface, she swabbed the surface and performed a second test using the swab. She

identified photographs of the car, including the backseat. She testified that because the

interior fabric was also a reddish-brown color, it was difficult to discern stains from the

photographs alone. However, she said that it was easier to see the stains when personally

viewing the evidence. Accordingly, she made several drawings of the car in which she

depicted the areas where stains were found, including the backseat.

- 26 -

When the State attempted to introduce the backseat drawing, the Defendant

objected on the basis that the drawing was not the best evidence and was not accurate.

He claimed that the drawing depicted more blood than the photographs. The trial court

overruled the objection, pointing to Agent Zavaro’s testimony that the stains were

difficult to see in the photographs alone. The court found that the drawing would assist

the jury’s understanding and admitted the evidence. The court noted that the accuracy of

the drawing could be challenged on cross-examination.

Although the Defendant does not elaborate in his brief about how admission of the

evidence violated Rule of Evidence 403, his objection at the trial was based on the danger

of misleading the jury. The trial court admitted the evidence based upon a finding that

the drawing would assist the jury in understanding where in the backseat the blood was

located. The Defendant did not ask Agent Zavaro questions challenging the accuracy of

the drawing. The court did not abuse its discretion in admitting the evidence, and the

Defendant is not entitled to relief on this basis.

The Defendant also asserts that admission of the backseat drawing violated the

Fifth Amendment of the United States Constitution. He did not object on this basis at the

trial and did not adequately address the issue in his appellate brief. See Adkisson, 899

S.W.2d at 634; Tenn. Ct. Crim. App. R 10(b). As such, our review is limited to plain

error.

An evidentiary ruling rarely rises to the level of a constitutional violation. See

Powers, 101 S.W.3d at 397. Furthermore, we have already determined that admission of

the backset drawing was proper under the Rules of Evidence. We conclude that the

Defendant’s allegation of constitutional error is without merit, and he has not established

that admission was plain error. See, e.g., State v. Dustin Dwayne Davis, No. 03C01-

9712-CR-00543, 1999 WL 135054, at *5 (Tenn. Crim. App. Mar. 15, 1999); State v.

Allan Brooks, No. 01C01-9510-CC-00324, 1998 WL 754315, at *11 (Tenn. Crim. App.

Oct. 29, 1998). He is not entitled to relief on this issue.

VIII. Admission of James Allard’s Previous Testimony

The Defendant contends that the trial court erred in finding James Allard was

unavailable and in allowing the State to present Mr. Allard’s testimony through a

transcript of the previous trial. He asserts that the State’s efforts to locate Mr. Allard

were “wholly insufficient” and that the prior testimony should have been excluded. The

State responds that its efforts to locate Mr. Allard were reasonable and that the court did

not err in declaring Mr. Allard unavailable and in admitting his previous testimony.

- 27 -

TBI Agent Charles Baker testified that he attempted to locate Mr. Allard through

law enforcement databases as well as Google searches. He consulted “CLEAR,” which

searched real estate records, criminal information, and both criminal and civil records.

He also searched the State of Tennessee Justice Portal, which contained driver’s license

information, vehicle information, criminal histories, and Tennessee Department of

Correction information. He further searched the National Crime Information Center

(NCIC) which he characterized as a national search through the FBI. Finally, he searched

death records. He found a potential phone number but, after calling the number,

determined it was a “dead end.”

On cross-examination, Agent Baker said that he did not attempt to contact Mr.

Allard’s family because he did not have information about any family members. Agent

Baker admitted that he was not aware Mr. Allard had been previously incarcerated in

Indiana and said that he did not search for him through the Indiana Department of

Correction.

The Defendant argued that the State’s efforts were insufficient. He asserted that

Mr. Allard had a long criminal history and that if the right methods had been utilized, the

State should have been able to identify his family members and gain more information

about his whereabouts. The trial court found that the State’s efforts were reasonable.

The court stated that it did not “know how else [the State] can go about finding a witness,

if they don’t know who the family members are, other than Google searches and database

searches.” The court noted that Mr. Allard’s imprisonment in Indiana nearly twenty

years ago did not mean he was still in the state. The court found that the State was not

required to send an investigator to every state in search of a witness.

The Constitution of the United States provides the accused in a criminal

prosecution the right “to be confronted with witnesses.” U.S. Const. amend. VI. The

Tennessee Constitution similarly provides the right “to meet witnesses face to face.”

Tenn. Const. art. I, § 9. However, the right of confrontation is not absolute and must

occasionally give way to considerations of public policy and necessities of the case.

State v. Kennedy, 7 S.W.3d 58, 65 (Tenn. Crim. App. 1999) (citing Jenkins v. State, 627

N.E.2d 789, 793 (Ind. 1993)). Thus, the United States Supreme Court has refused to

apply a literal interpretation of the Confrontation Clause which would bar the use of any

hearsay. Idaho v. Wright, 497 U.S. 805, 814 (1990).

In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court

announced the test to determine admissibility under the Confrontation Clause of hearsay

offered against an accused. Testimonial statements may not be offered into evidence

unless two requirements are satisfied: (1) the declarant/witness must be unavailable and

(2) the defendant must have had a prior opportunity to cross-examine the

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declarant/witness. Id. at 68. “Where testimonial statements are at issue, the only

indicium of reliability sufficient to satisfy constitutional demands is the one the

Constitution actually prescribes: confrontation.” Id. at 68-69.

Mr. Allard’s previous testimony was testimonial; thus, the pertinent consideration

is whether the State proved that the witness was unavailable. To accomplish this, “the

State must prove that it made a good faith effort to secure the presence of the witness in

question.” State v. Sharp, 327 S.W.3d 704, 712 (Tenn. Crim. App. 2010). “The ultimate

question is whether the witness is unavailable despite good-faith efforts undertaken prior

to trial to locate and present that witness. As with other evidentiary proponents, the

prosecution bears the burden of establishing this predicate.” Crawford, 541 U.S. at 74-

75. Good faith refers to the extent to which the State must attempt to produce the witness

and is a question of reasonableness. Sharp, 327 S.W.3d at 712 (citing Ohio v. Roberts,

448 U.S. 56, 74 (1980)). The trial court’s decision will be affirmed absent an abuse of

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

Our supreme court considered what constitutes a good faith effort in State v.

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

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

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

day before the second trial, the State attempted to subpoena the witness, but the State was

unable to locate the witness. Id. At the trial the State attempted to present the witness’s

preliminary hearing testimony. Id. The State failed to provide any independent evidence

of an attempt to locate the witness to prove the witness’s unavailability other than a

statement by the prosecutor. The supreme court held that “[t]he prosecuting attorney’s

statement to the Court concerning the efforts of the State’s investigator to locate the

witness cannot be considered as evidence of proof on the issue of the State’s good faith

effort.” Id. at 237. Our supreme court also determined that the State was on notice that

extra effort would be required to locate the witness because he did not appear for the first

trial date. Id.

Unlike Armes, the State in the present case produced independent evidence of its

efforts to locate Mr. Allard. Nearly twenty years had passed between the first trial and

the State’s attempts to locate Mr. Allard before the second trial. Agent Baker attempted

to locate the witness using numerous search tools, including the NCIC database, which he

explained was a national search through the FBI. Agent Baker developed one

unsuccessful lead through a telephone number. The agent said he did not have

information about Mr. Allard’s family members and was unable to contact them to gain

more information. This evidence supports the trial court’s determination that the State

made good-faith, although ultimately unsuccessful, efforts to locate the witness.

- 29 -

Given the passage of time and the independent evidence produced by the State, we

conclude that the trial court did not abuse its discretion in determining Mr. Allard was

unavailable. The Defendant is not entitled to relief on this issue.

IX. Rhonda Ball Johnson’s Testimony

The Defendant argues that the trial court erred in allowing Rhonda Ball Johnson to testify

about conversations she had with William Conaley, alleging that it was inadmissible

hearsay. He asserts that her testimony violated Tennessee Rules of Evidence 801 and

802. The State contends that the testimony was proper as prior consistent statements

used to rehabilitate Mr. Conaley’s credibility.

Mr. Conaley was incarcerated with the Defendant at Northwest Correctional

Center in 1993. He testified that the Defendant expressed his discontent that the victim

had put him in prison. The Defendant told Mr. Conaley that the victim’s son, Chris

Ellsworth, was going to receive money from a lawsuit and that the Defendant felt entitled

to some of the money.

Mr. Conaley said that prior to his leaving on furlough, the Defendant asked him to

relay a message to the victim. The Defendant wanted the victim to know that he

expected to receive some of the money from the lawsuit and that if he did not get it, he

would kill her. Mr. Conaley said that he relayed the threat to Ms. Johnson. However,

Mr. Conaley did not report the threat to the authorities, and he was released on parole

shortly thereafter.

In January 1996, Mr. Conaley returned to custody. In February 1997, Mr. Conaley

read about the victim’s disappearance in a newspaper and told family members about the

Defendant’s prior statements, but Mr. Conaley did not contact law enforcement.

However, he said that approximately one week later, an MPD officer visited him in

prison. He told the police about the Defendant’s threatening the victim.

On cross-examination, Mr. Conaley admitted that when the Defendant made the

statements in 1993, Mr. Conaley had already been granted parole and was awaiting

release. However, he admitted that when he spoke with law enforcement in 1997, the

information might have gained him an earlier release. Nevertheless, he denied contacting

law enforcement, and he said that it was Ms. Johnson who told the police about the

Defendant’s threat after the victim disappeared. Mr. Conaley requested that he be

transferred to the “annex” to finish his sentence, which he admitted was “easy time” in

the prison system. He said that after talking to the police about the Defendant, he was

moved to the annex.

- 30 -

Ms. Johnson testified that she was the victim’s niece. She was also childhood

friends with Mr. Conaley. She confirmed that in 1993, Mr. Conaley told her about the

Defendant’s threat against the victim.

Generally, out-of-court statements offered to prove the truth of the matter asserted

are inadmissible evidence. See Tenn. R. Evid. 801, 802. However, when a defendant

attack’s a witness’s credibility, the State may rehabilitate the witness by offering

evidence of a prior consistent statement. State v. Benton, 759 S.W.2d 427, 433 (Tenn.

Crim. App. 1988). Admission of prior consistent statements is authorized in two

circumstances: (1) where the statement is offered to rebut the implication that the

witness’s testimony was a recent fabrication; and (2) when deliberate falsehood has been

implied. Id. Prior consistent statements are not ordinarily admissible for the sole purpose

of bolstering a witness’s credibility. State v. Braggs, 604 S.W.2d 833, 885 (Tenn. Crim.

App. 1980).

During Mr. Conaley’s cross-examination, the defense implied that Mr. Conaley

fabricated the Defendant’s statement in 1997 because he faced years in prison and wanted

to secure favorable treatment and early release. Thereafter, the State called Ms. Johnson,

who testified that Mr. Conaley relayed the Defendant’s threat to her in 1993, when Mr.

Conaley had already been granted parole and had no motivation to lie in order to cut a

deal with police. That testimony was properly admitted to rebut the Defendant’s

implication of recent fabrication, and this issue is without merit.

The Defendant also contends that admission of this evidence “was in violation of

the Fifth Amendment of the United States Constitution.” The Defendant did not object

on this basis at the trial and did not elaborate in his appellate brief as to how admission

violated his constitutional rights. See Adkisson, 899 S.W.2d at 634; Tenn. Ct. Crim. App.

R 10(b). Accordingly, our review is limited to plain error.

Because we have already determined that admission of Ms. Johnson’s statement

was proper under the Rules of Evidence, we conclude that the evidence was not admitted

in violation of the Defendant’s constitutional rights and that the Defendant has not

established plain error. He is not entitled to relief on this basis.

X. Chris Ellsworth’s Testimony

The Defendant asserts that allowing Chris Ellsworth, the victim’s son, to show the jury

his scars violated Tennessee Rules of Evidence 401, 402, and 403. The State responds

that the court acted within its discretion to allow the evidence, which demonstrated the

victim was unlikely to abandon her son, who had been badly burned, and rebutted the

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defense’s implication that the victim was not deceased. According to the State, the

victim had provided extensive care to Mr. Ellsworth and would not have suddenly left.

At the trial, Mr. Ellsworth testified that he had been badly burned over 70% of his

body in a water heater explosion and that he required extensive follow-up medical care.

His mother was devoted to his care and frequently took him to LeBonheur Hospital as

well as Shriners Hospital in Galveston, Texas, for treatment. She also worked with him

daily on physical therapy for years after the accident. The State asked Mr. Ellsworth to

show his scars to the jury. After the defense objected, the prosecutor explained that it

wanted to show that the victim “was not the type of person that would have walked off

without saying anything and leaving her children.” The trial court agreed that the

evidence was relevant, pointing out that the defense had said in its opening statement that

the victim might not be deceased. The court agreed that the evidence did not have “a lot

of probative value” under Rule 403 but that there was minimal danger of unfair prejudice.

Thereafter, Mr. Ellsworth displayed the scars on his forearms to the jury.

Evidence is relevant and generally admissible when it has “any tendency to make

the existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401,

402. Relevant evidence, however, “may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.” Tenn. R. Evid. 403.

The evidence was minimally relevant to support Mr. Ellsworth’s testimony about

the severity of his injuries and to combat the defense’s argument that the victim might

still be alive. The scars were a visual representation of the injuries described in the

witness’s testimony, and no evidence showed that the Defendant had any involvement in

Mr. Ellsworth’s injury. Despite the minimal relevance of the evidence, the Defendant has

not articulated any prejudice he suffered based on the evidence’s admission. The trial

court found that the probative value was not substantially outweighed by the danger of

unfair prejudice, and the record supports its determination. The court did not abuse its

discretion in allowing the jury to view the scars.

The Defendant asserts, in a cursory fashion, that admission of this evidence “was

clearly done in violation of the Fifth Amendment of the United States Constitution,” an

assertion that he did not raise at trial. See Adkisson, 899 S.W.2d at 634; Tenn. Ct. Crim.

App. R 10(b). We review this issue for plain error.

The Defendant has not established that admission of the evidence was prejudicial

or improper. Likewise, we have considered his allegation of a constitutional error that

- 32 -

violated his due process rights and have determined that it is without merit. The

Defendant is not entitled to relief on this basis.

XI. Tim Helldorfer’s Testimony Regarding William Conaley and James Allard

The Defendant alleges that the trial court erred in allowing Sergeant Tim

Helldorfer to testify regarding statements made by Mr. Conaley and Mr. Allard, in

violation of Rules of Evidence 801 and 802. The State contends that the testimony was

prior consistent statements used to rebut implications on cross-examination about the

Defendant’s threat and confessions.

Sergeant Helldorfer testified that he interviewed Mr. Conaley in prison and that he

obtained a statement from Mr. Allard in Johnson County, Indiana in 1997. Sergeant

Helldorfer stated that Mr. Allard’s previous testimony was consistent with the 1997

statement.

The Defendant objected, arguing that the statements were hearsay and were prior

consistent statements. He contended that admitting the statements because a witness’s

credibility had been generally impeached was not the proper use of a prior consistent

statement. The State asserted that the witness’s credibility became an issue on cross-

examination and that it was proper to show they had “previously made these statements”

to different individuals. The Defendant argued that Mr. Conaley’s 1997 statement was

fabricated and that the State could not provide a statement he made to someone else as

proof that it was not a fabrication.

The trial court stated that “the jury has a right to hear that [Mr. Allard and Mr.

Conaley] gave consistent statements to . . . the police . . . .” It explained that the

statements were being offered to bolster the witness’s credibility. The court provided the

following example to explain his ruling:

If someone sees something, let’s say they see someone run a light.

And then they testify that they saw the person run the light.

And the other side says, he didn’t run the light, did he?

Yes he did.

And then [the witness] tells ten other people later on that he ran the

light. I think the other side -- the first side has a right to put on the

witnesses because he made that statement that he ran the light to many,

- 33 -

many people over and over. To show his credibility on the stand, the

credibility of his testimony.

It’s not being offered as substantive evidence. It’s being offered to

show his credibility, that he made that statement to several people.

The court allowed the officer to testify that Mr. Conaley’s statements to police and at the

trial were consistent. The court determined that the State could show Sergeant Helldorfer

the transcript of Mr. Allard’s trial testimony and ask whether it was consistent with Mr.

Allard’s statement to police. However, the contents of the transcript could not be

admitted.

Out-of-court statements offered to prove the truth of the matter asserted are

inadmissible at trial. See Tenn. R. Evid. 801, 802. However, when a defendant attacks a

witness’s credibility, the State may rehabilitate the witness by offering evidence of a prior

consistent statement. Benton, 759 S.W.2d at 433. Admission of a prior consistent

statement is authorized in two circumstances: (1) where the statement is offered to rebut

the implication that the witness’s testimony was a recent fabrication; and (2) when

deliberate falsehood has been implied. Id. A prior consistent statement is not ordinarily

admissible for the sole purpose of bolstering a witness’s credibility. Braggs, 604 S.W.2d

at 885.

Here, the trial court’s comments reflect that the prior consistent statements were

allowed merely to bolster the witness’s credibility. The statements admitted through

Sergeant Helldorfer were not made “before any improper influence or motive to lie

existed.” State v. Herron, 461 S.W.3d 890, 905 (Tenn. 2015) (citing Sutton v. State, 291

S.W. 1069, 1070 (Tenn. 1927)). The defense’s cross-examination of these witnesses

implied that the statements about the Defendant’s threat were fabricated in an effort to

gain favorable treatment from the State. The statements to the police were not made

before the purported motive to fabricate existed. Therefore, they were not prior

consistent statements, and the court erred in admitting the statements.

Recognizing that all errors are not equal, our supreme court has established three

categories of error—structural constitutional error, non-structural constitutional error, and

non-constitutional error. Powers, 101 S.W.3d at 397; State v. Garrison, 40 S.W.3d 426,

433-34 (Tenn. 2000); State v. Harris, 989 S.W.2d 307, 314-15 (Tenn. 1999). The

distinctions between these categories dictate the standards to be applied when

determining whether a particular error is harmless. State v. Rodriguez, 254 S.W.3d 361,

371 (Tenn. 2008). A trial court’s error in admitting evidence under the Tennessee Rules

of Evidence falls into the category of non-constitutional error, and harmless error analysis

under Tennessee Rule of Appellate Procedure 36(b) is appropriate. See State v. Clark,

- 34 -

452 S.W.3d 268, 287 (Tenn. 2014); see also State v. James, 81 S.W.3d 751, 763 (Tenn.

2002) (noting that “[h]armless error analysis applies to virtually all evidentiary errors

other than judicial bias and denial of counsel”). Pursuant to Rule 36(b), the defendant

bears the burden of showing that a non-constitutional error “more probably than not

affected the judgment or would result in prejudice to the judicial process.” T.R.A.P.

36(b); Rodriguez, 254 S.W.3d at 372.

The Defendant has not carried his burden in showing that he was prejudiced by

admission of this evidence. Indeed, he has not offered any argument related to the

prejudicial effect of this error. After considering the entirety of the evidence presented at

the, we conclude that the error was harmless. The defense was able to cross-examine Mr.

Conaley and Mr. Allard about their motivations to lie in exchange for more favorable

treatment. The substance of the testimony was already in evidence, and the jury was

instructed not to consider the consistent statements as substantive evidence. Further,

overwhelming circumstantial evidence established the Defendant’s guilt, including his

previous relationship with the victim and motive for harming her, his threats to kill the

victim, his confession to his cellmate, his possession of a car matching a description of

the car seen at the motel, the presence in the car of blood and DNA matching the

victim’s, and his actions in the days following the victim’s disappearance. Accordingly,

the error was harmless, and the Defendant is not entitled to relief on this basis.

The Defendant also maintains that admission of this evidence violated the Fifth

Amendment of the United States Constitution. He did not object on this basis at the trial

and does not elaborate in his appellate brief as to how the Fifth Amendment was violated.

See Adkisson, 899 S.W.2d at 634; Tenn. Ct. Crim. App. R 10(b). Our review is limited to

plain error, and we conclude that the Defendant has not shown that the admission of this

evidence affected a substantial right. The substantial right inquiry under the plain error

doctrine mirrors the harmless error analysis under Rule 36(b). See Maddin, 192 S.W.3d

at 562. Upon consideration, we conclude, as well, that admission of the evidence did not

violate the Defendant’s due process rights under the Fifth Amendment.

XII. Trial Court’s Limitation of Sergeant Helldorfer’s Testimony

The Defendant contends that the trial court erred in limiting the defense’s questioning of

Sergeant Helldorfer. He argues that the defense should have been allowed to ask during

cross-examination whether Billy Wayne Voyles had been positively identified. The

Defendant further asserts that Sergeant Helldorfer should have been allowed to testify

about a document relating to the release of the maroon Honda. The State responds that

the defense agreed to the limitation on testimony about the positive identification and

cannot now claim error. Further, the State asserts that the document was inadmissible

because it could not be authenticated by the witness.

- 35 -

A. Positive Identification

During its examination of Sergeant Helldorfer, the defense asked whether he was

“aware that there was a positive identification made, that Billy Voyles was positively

identified in the case.” The prosecution objected to the question, arguing it was hearsay.

The court overruled the objection because it was admissible as a prior identification but

stated that there was a question as to whether a witness made a “positive” identification.

Defense counsel then said, “I will take the word positive out if that is the problem.” The

court additionally noted that the Defendant needed to establish that the questioning was

related to Mr. Darnell’s identification of Mr. Voyles. The defense again agreed and

asked Sergeant Helldorfer whether “Mr. Darnell had identified Billy Wayne Voyles as an

eye witness as being on the scene at the time during [the] investigation.” Sergeant

Helldorfer answered affirmatively.

Tennessee Rule of Appellate Procedure 36(a) provides that “[n]othing in this rule

shall be construed as requiring relief be granted to a party responsible for an error or who

failed to take whatever action was reasonably available to prevent or nullify the harmful

effect of an error.” The Defendant agreed to take the word positive out of the question

posed to Sergeant Helldorfer, and he cannot now claim error on that basis. In any event,

the Defendant has not explained how he was prejudiced by this limitation. Sergeant

Helldorfer testified that Mr. Darnell identified Mr. Voyles as one of the men he saw in

the motel office, and Mr. Darnell testified that he identified Mr. Voyles. The Defendant

is not entitled to relief on this basis.

The Defendant also alleges that this limitation violated his Fifth Amendment

rights under the United States Constitution. The Defendant did not raise this issue at the

trial and does not provide any meaningful argument regarding this issue in his brief. See

Adkisson, 899 S.W.2d at 634; Tenn. Ct. Crim. App. R 10(b). We review the issue for

plain error and conclude that the Defendant has not proven this limitation amounted to a

due process violation or that a substantial right was adversely affected. The defense

sought to elicit testimony that Mr. Darnell identified Mr. Voyles as one of the men at the

motel. The court did not allow the defense to use the word “positive” when pursuing this

line of questioning because Mr. Darnell had not used the word when he testified about the

identification. The Defendant agreed to remove the word “positive” from his question.

Deleting the word from the question did not meaningfully change the witness’s testimony

and had no effect on the outcome of the trial. The Defendant is not entitled to relief on

this basis.

- 36 -

B. Towing Slip

During cross-examination, the defense showed Sergeant Helldorfer three

documents, one of which was a towing slip for the Honda. When asked whether he

recognized them, he replied that he only recognized the towing slip. The Defendant

questioned Sergeant Helldorfer about the two unidentified documents. The State

objected, arguing that the witness had not authenticated the documents. In response, the

defense asserted that the three documents were received together in discovery and that

Sergeant Helldorfer’s signature appeared on the towing slip. The defense asserted that

one of the unidentified documents appeared to be the back of the towing slip, which had

been authenticated by Sergeant Helldorfer. The defense explained that it was attempting

to establish when the car was released and to whom, information that was reflected on

one of the documents. However, Sergeant Helldorfer testified that the writing on the

purported back of the towing slip was not his. He explained that he only wrote on the

front of the towing slip and could not verify the information contained on the back. The

trial court informed the Defendant that the witness had to authenticate the document

purported to be the back of the towing slip before it could be admitted into evidence.

Thereafter, the officer testified that his signature was on the towing slip, which reflected

that the car was released on March 25. However, he did not have personal knowledge of

where the car was taken after it was released. Because he could not identify the

purported back of the towing slip, that document was not admitted into evidence.

Before a document is admitted into evidence, the party seeking admission

generally must authenticate the document. State v. Troutman, 327 S.W.3d 717, 722

(Tenn. Crim. App. 2008); See Tenn. R. Evid. 901(a). Sergeant Helldorfer testified that

he recognized the towing slip. However, he was unable to identify the document that the

defense claimed was the back of the towing slip. The trial court did not abuse its

discretion in refusing to admit the unauthenticated document, and this issue is without

merit.

The Defendant again asserts a Fifth Amendment challenge to this issue, which was

not a basis for objection at trial and is not adequately argued in his brief. See Adkisson,

899 S.W.2d at 634; Tenn. Ct. Crim. App. R 10(b). We review the issue for plain error

and conclude that the Defendant has not established that the trial court’s decision violated

a clear and unequivocal rule of law. Because there was no error in the court’s decision to

exclude this evidence based on a lack of authentication, the allegation of a constitutional

error is without merit. The Defendant is not entitled to relief on this basis.

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XII. Joyce Carmichael’s Testimony

Joyce Carmichael is the official records officer for the Tennessee Department of

Correction. Ms. Carmichael testified that Tommy Voyles and the Defendant were both

incarcerated at Lake County Regional Correctional Facility during a five-month period in

1992. Later in the trial, another witness testified that Tommy and Billy Voyles were

related and that the witness had seen them together, although the witness did not specify

how they were related. Before her testimony, the defense objected to the relevance of

evidence that Tommy Voyles had been incarcerated with the Defendant previously. The

prosecutor argued that there was more than one person involved in the victim’s

disappearance and that Tommy Voyles might have been involved. Thus, the State

wanted to show the connection between the Defendant and Tommy Voyles. The defense

pointed out that the only testimony regarding Tommy Voyles was that he had been

previously married to the victim. The State further explained that “there appear to be

multiple people involved in this” and that one of the individuals involved was identified

by a witness as Billy Voyles. Thus, argued the State, “the fact that [the Defendant] has a

close connection with a Tommy Voyles would be relevant.” The trial court admitted the

testimony, noting that it was “not extremely probative but there’s absolutely no unfair

prejudice.”

The evidence does not support the trial court’s determination that evidence

attempting to connect the Defendant with Tommy Voyles was relevant. The evidence

was too remote to be relevant to a material issue in the case. Tenn. R. Evid. 401 and 402.

There was testimony that Tommy Voyles and the Defendant had been incarcerated in the

same facility but not that they knew each other, were housed together, or interacted in

any capacity during that time. Even if a “close connection” between the Tommy Voyles

and the Defendant were proved, that connection does not result in a conclusion that a

connection existed between the Defendant and Billy Voyles. The court’s admission of

this irrelevant evidence was error, but we conclude that the error was harmless based

upon the overwhelming circumstantial evidence of the Defendant’s guilt. See Tenn. R.

App. P. 36(b). The Defendant is not entitled to relief on this basis.

XIV. Prior Testimony of Unavailable Witnesses

The Defendant contends that the trial court erred in allowing previous testimony

from witnesses, along with related exhibits, who were unavailable at the second trial. He

alleges that the admission of this testimony was unfair because the witnesses were

questioned by his previous counsel, who were found to be constitutionally ineffective.

The State responds that each of the unavailable witnesses was subject to cross-

examination and that counsel from the Defendant’s first trial were not ineffective in

questioning witnesses.

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Pursuant to Tennessee Rule of Evidence 804(b), the former testimony of a

declarant who is currently unavailable to testify is admissible. “Former testimony” is

“[t]estimony given as a witness at another hearing of the same or a different proceeding .

. ., if the party against whom the testimony is now offered had both an opportunity and a

similar motive to develop the testimony by direct, cross, or redirect examination.” Tenn.

R. Evid. 804(b)(1). The similar motive requirement is met when the issues in the present

case are “sufficiently similar” to the issues in the case in which the prior testimony was

given. See State v. Howell, 868 S.W.2d 238, 252 (Tenn. 1993). The Constitution of the

United States provides the accused in a criminal prosecution the right “to be confronted

with witnesses.” U.S. Const. amend. VI.; see also Tenn. Const. art. I, § 9. However, “the

Confrontation Clause only guarantees ‘an opportunity for effective cross-examination,

not cross-examination that is effective in whatever way, and to whatever extent, the

defense might wish.’” Pennsylvania v. Ritchie, 480 U.S. 39, 53 (1987) (quoting

Delaware v. Fensterer, 474 U.S. 15, 20 (1985)). Our courts have upheld the admission

of prior testimony given at a preliminary hearing, see State v. Bowman, 327 S.W.3d 69,

88-89 (Tenn. Crim. App. 2009), and in another state, see Howell, 868 S.W.2d at 252.

The prior testimony of eight witnesses was read into evidence at the Defendant’s

trial. With the exception of one witness, the prior testimony was from either the

Defendant’s preliminary hearing or his first trial. The exception was the testimony of

Dixie Presley, who testified at the previous trial and at the Defendant’s post-conviction

evidentiary hearing. The post-conviction court determined that trial counsel were

ineffective for failing to cross-examine Ms. Presley about the two men she saw at the

motel on the night of the victim’s disappearance. However, she was specifically

questioned about this matter at the post-conviction hearing, and this testimony was read

into evidence at the Defendant’s second trial. Therefore, any failure to effectively cross-

examine Ms. Presley at the first trial was satisfied by her questioning at the post-

conviction hearing and the subsequent introduction of this evidence at the second trial.

The record reflects that the Defendant had an opportunity to, and in fact did, cross-

examine each witness. The Defendant had a similar motive to develop the testimony of

these witnesses during examination in the prior proceedings in which he was facing the

same charges. Other than the exception discussed above, the Defendant was granted

post-conviction relief on the basis that his counsel were ineffective in investigating the

case, not in examining witnesses. The Defendant has not cited any cases holding that

prior testimony is inadmissible when post-conviction relief is granted for a reason

unrelated to counsel’s examination of witnesses. Accordingly, he is not entitled to relief

on this basis.

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The Defendant also argues that admission of this prior testimony violated his Fifth

Amendment rights. He did not object on this basis at trial and does not elaborate on this

issue in his brief. See Adkisson, 899 S.W.2d at 634; Tenn. Ct. Crim. App. R 10(b). We

review the issue for plain error.

Because we have determined that admission of the prior testimony was proper, we

conclude that the Defendant has not shown that his due process rights were violated in

this respect. No clear and unequivocal rule of law was breached, and the Defendant is

not entitled to relief on this basis.

XV. Admission of Richard Rimmer’s Prior Inconsistent Statements

The Defendant alleges that the trial court should not have admitted Richard

Rimmer’s prior inconsistent statements and related exhibits as substantive evidence. The

State asserts that this evidence was properly admitted as a prior inconsistent statement

and as past recollection recorded.

At trial the Defendant’s brother, Richard Rimmer, testified that he could not recall

giving a statement to the police in 1997. The State showed Mr. Rimmer a copy of a

statement dated February 18, 1997, and although he recognized his signature on the

statement, he did not remember giving the statement. The prosecutor asked Mr. Rimmer

about each question and answer provided in the statement. In two instances, he denied

providing a particular answer, but he mostly stated that he had no memory of the

statement. He testified that he had suffered several head injuries, which impacted his

memory. The State also showed him drawings he allegedly made, but he denied making

the drawings.

The State sought to have the statement and drawings admitted as substantive

evidence under Tennessee Rule of Evidence 803(26). The trial court found that for the

statements Mr. Rimmer denied making, they were prior inconsistent statements under

Tennessee Rule of Evidence 613(b) and were admissible, if the court found they were

trustworthy, pursuant to Rule 803(26), providing a hearsay exception for prior

inconsistent statements. For the statements Mr. Rimmer did not remember making, the

court found that he was an unavailable witness pursuant to Rule of Evidence 804(a)(3),

and those questions and answers could be read to the jury. Both sides presented

testimony relevant to competency at the time the statement was given.

The defense called Mr. Rimmer’s mother, Sandra Rimmer, who testified that Mr.

Rimmer had received disability benefits since 1990 or 1991 due to a head injury that

caused brain damage. She stated that his daily activities were impacted and that he

“sometimes . . . thinks things are happening [that were] not happening.” Ms. Rimmer

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admitted that in 1997, Mr. Rimmer was capable of living on his own, managed daily

activities without assistance, and worked to support himself. She also said he was

competent to enter into a lease agreement.

The State called Sergeant Helldorfer, who testified that he met with Mr. Rimmer

on February 13 and 18, 1997. His impression was that Mr. Rimmer fully understood the

questions asked and answered them appropriately. Sergeant Helldorfer said that he did

not ask leading questions and that Mr. Rimmer provided the details. The February 18

conversation was memorialized in a written statement. The officer also testified about

Mr. Rimmer’s drawings. One drawing depicted the location of the blood in the backseat,

and the other was a drawing of the shovel, of which the Defendant asked Mr. Rimmer to

dispose. Sergeant Helldorfer confirmed that the statement and drawings about which Mr.

Rimmer had been questioned were those obtained by Sergeant Helldorfer on February 18,

1997.

In assessing whether the evidence was trustworthy, the trial court noted the level

of detail contained in Mr. Rimmer’s answers. The court further found that the statement

appeared to come from a competent person and not from someone who was intellectually

disabled. The court determined that the statement was given under circumstances

indicating its trustworthiness.

The trial court determined that the statements Mr. Rimmer denied making were

admissible pursuant to Rule 803(26). The court further ruled that the drawings could be

admitted into evidence, as Mr. Rimmer had denied making them. However, as to the

statements for which Mr. Rimmer claimed a lack of memory, the court found those were

not inconsistent statements and could not be admitted under 803(26). Rather, the court

found that portions of the statement qualified as a past recollection recorded pursuant to

Rule 803(5). Thus, those portions could be read into evidence but not admitted as an

exhibit.

Hearsay is defined as “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Tenn. R. Evid. 801(c). As a general rule, hearsay is not admissible during a

trial, unless the statement falls under one of the exceptions to the rule against hearsay.

Tenn. R. Evid. 802. However, many exceptions to the rule against hearsay exist.

Tennessee Rule of Evidence 803(26) provides that a prior inconsistent statement that is

otherwise admissible under Rule 613(b) is admissible as substantive evidence if the

following prerequisites are met:

(A) The declarant must testify at the trial or hearing and be subject to

cross-examination concerning the statement.

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(B) The statement must be an audio or video recorded statement, a

written statement signed by the witness, or a statement given under oath.

(C) The judge must conduct a hearing outside the presence of the

jury to determine by a preponderance of the evidence that the prior

statement was made under circumstances indicating trustworthiness.

This rule has been interpreted to apply when a testifying witness claims a lack of

memory. State v. Davis, 466 S.W.3d 49, 64 (Tenn. 2015).

Tennessee Rule of Evidence 613(b) permits the use of extrinsic evidence of prior

inconsistent statements for the purpose of impeachment. The Rule provides that

“[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible

unless and until the witness is afforded an opportunity to explain or deny the same and

the opposite party is afforded an opportunity to interrogate the witness thereon, or the

interests of justice otherwise require.”

Additionally, Rule 803(5) provides another exception to the hearsay rule, which is

commonly referred to as past recollection recorded. That rule deems admissible

[a] memorandum or record concerning a matter about which a witness once

had knowledge but now has insufficient recollection to enable the witness

to testify fully and accurately, shown to have been made or adopted by the

witness when the matter was fresh in the witness’s memory and to reflect

that knowledge correctly. If admitted, the memorandum or record may be

read into evidence but may not itself be received as an exhibit unless

offered by an adverse party.

The Defendant alleges that Mr. Rimmer’s prior statement should have been

considered by the jury for impeachment purposes only. However, Rule 803(26) provides

that an inconsistent statement may be admitted as substantive evidence when certain

conditions are satisfied. Mr. Rimmer testified at the trial that the statement was written

and signed by him, and the trial court conducted a jury-out hearing during which it

determined the statement was trustworthy. The court did not err by admitting the prior

statement pursuant to Rules 613(b) and 803(26). Additionally, the statement was

properly admitted as a recorded recollection under Rule 803(5). The statement was taken

shortly after the events in question, and Mr. Rimmer no longer remembered the

statement. Further, the court allowed the statement to be read into evidence but did not

admit it as an exhibit. Accordingly, Mr. Rimmer’s prior statement was admissible under

803(26) and 803(5), and the Defendant is not entitled to relief on this issue.

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The Defendant again asserts a general Fifth Amendment challenge to the

admission of this evidence, although he did not object on that basis at trial and does not

provide meaningful argument on the issue in his brief. See Adkisson, 899 S.W.2d at 634;

Tenn. Ct. Crim. App. R 10(b). Our review is limited to plain error. In that regard, we

conclude that the Defendant has not established that he is entitled to plain error relief.

XVI. Kenneth Falk’s Testimony

The Defendant argues that the trial court erred in prohibiting the testimony of

attorney Kenneth Falk regarding the success of a lawsuit concerning conditions at the

Johnson County Jail in Indiana. The State responds that the evidence was properly

excluded as it was irrelevant.

The Defendant offered the testimony of Mr. Falk to establish that the Defendant’s

escape attempts were related to the conditions at the jail and did not reflect a

consciousness of guilt. The State objected on relevancy grounds. The trial court allowed

the testimony to rebut the implication that his escapes were based on guilt. However, the

court prohibited Mr. Falk from testifying about any details the Defendant discussed with

him.

Mr. Falk testified that was legal director of the American Civil Liberties Union

(ACLU) of Indianapolis, Indiana. He said that in 1997, the Defendant contacted his

office concerning the conditions at the Johnson County Jail. His office filed a lawsuit

based on the Defendant’s complaints, although it was filed on behalf of other inmates

because the Defendant was no longer confined in the jail by the time the lawsuit was

filed. When the defense asked Mr. Falk whether the lawsuit was successful, the State

objected. The trial court sustained the objection, stating there was no need “to talk about

what happened in the lawsuit.”

The trial court did not abuse its discretion in limiting Mr. Falk’s testimony. The

defense’s stated purpose in offering the evidence was to provide a reason, other than

guilt, for the Defendant’s escape attempts. Mr. Falk established that the Defendant

complained about the conditions and that a lawsuit was filed as a result. The court did

not abuse its discretion in limiting the details of the lawsuit, including whether it was

successful. The Defendant is not entitled to relief on this basis.

The Defendant maintains that excluding this evidence violated the Fifth

Amendment of the United States Constitution. He did not object on this basis at trial and

does not elaborate on the issue in his brief. See Adkisson, 899 S.W.2d at 634; Tenn. Ct.

Crim. App. R 10(b). Thus, our review is limited to plain error.

- 43 -

To determine whether the exclusion of this testimony to the level of a

constitutional violation, we consider the following: (1) whether the evidence is critical to

the defense, (2) whether it bears sufficient indicia of reliability, and (3) whether the

interest supporting exclusion is substantially important. See Brown, 29 S.W. 3d at 433-

34.

The Defendant has not proven that the evidence was critical to his defense, and

therefore, no substantial right was adversely affected. As noted above, the Defendant

was able to establish through Mr. Falk’s testimony that conditions at the jail led the

ACLU to file a lawsuit, which provided an alternative reason for the Defendant’s escape

attempt. We cannot conclude that additional testimony that the lawsuit was successful

would have changed the outcome of the trial. Accordingly, plain error relief is not

warranted.

XVII. Marilyn Miller’s Testimony

The Defendant asserts that the trial court erred in not allowing Marilyn Miller to

give an opinion on the length of time that the maroon Honda should have been kept by

law enforcement. He alleges that her testimony would have supported his request for a

Ferguson jury instruction. He claims that exclusion of this testimony violated Rules of

Evidence 401 and 402. The State contends that the exclusion was proper and argues that

the decision to provide a Ferguson instruction was a question of law for the court and that

Dr. Miller’s testimony would not have assisted the jury. The State further responds that

the proffered testimony was outside the scope of Dr. Miller’s expertise.

Dr. Miller testified that she was an associate professor of forensic science at

Virginia Commonwealth University. She had a bachelor’s degree in chemistry, a

master’s degree in forensic chemistry, and a doctorate in education. Before teaching, she

spent fourteen years working as a forensic scientist and a crime scene investigator for

three law enforcement agencies. Her duties included responding to and investigating

crime scenes and analyzing evidence in a laboratory. She had taught for twenty-two

years in the field of forensic science and crime scene investigation. The trial court

admitted Dr. Miller as an expert in crime scene investigation, crime scene reconstruction,

forensic science, and serology and blood spatter analysis.

The defense asked Dr. Miller whether she had an opinion regarding the length of

time the maroon Honda should have been retained by law enforcement. The State

objected, and the trial court sustained the objection. The court acknowledged that Dr.

Miller was a crime scene expert but found that it was improper for her to give an opinion

about the duty to preserve evidence as it related to Ferguson.

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The Defendant asserts that this limitation violated Rules of Evidence 401 and 402.

As previously discussed, Tennessee Rule of Evidence 401 defines “relevant evidence” as

“evidence having any tendency to make the existence of any fact that is of consequence

to the determination of the action more probable or less probable than it would be without

the evidence.” Rule 402 provides, in part, that “[e]vidence which is not relevant is not

admissible.”

The Defendant contends that Dr. Miller’s testimony would have assisted the jury

in understanding “that the defense was not given ample opportunity to inspect and test the

maroon Honda.” However, we agree with the State that this matter was relevant to

whether there was a duty to preserve, and that was an issue solely within the purview of

the trial court. Accordingly, the court did not abuse its discretion in ruling the testimony

was inadmissible.

The Defendant contends that exclusion of this evidence violated the Fifth

Amendment. Because he did not raise this issue at trial and does not provide argument

regarding this issue in his appellate brief, our review is limited to plain error. See

Adkisson, 899 S.W.2d at 634; Tenn. Ct. Crim. App. R 10(b). We conclude that the

Defendant failed to meet his burden in proving that exclusion of Dr. Miller’s testimony

violated a clear and unequivocal rule of law. The evidence was not critical to the defense

because the issue of the duty to preserve evidence is a matter of law for the trial court’s

determination. Dr. Miller’s testimony would not have assisted the jury in its resolution of

any issue in the case. The Defendant is not entitled to relief on this basis.

XVIII. Documents Related to Lawsuit against Shelby County Jail

Next, the Defendant asserts that the trial court should have admitted into evidence

another prisoner’s affidavit about the prisoner’s experiences in the Shelby County Jail

and about a 2000 contempt order. The State disagrees, arguing that these documents

lacked probative value because they related to the jail’s conditions when the Defendant

was no longer confined there and that the affidavit was inadmissible hearsay.

Attorney Robert Hutton testified that in 1996 or 1997 he filed a lawsuit against the

Shelby County Jail, alleging that jail conditions violated the Eighth Amendment to the

United States Constitution. Shelby County stipulated that the conditions were

unconstitutional and agreed to make changes to the facility. The defense attempted to

admit several documents related to the lawsuit, and the State objected. One of the

documents was described as a contempt order, which contained “graphic, specific

instances, everything from smack down tournaments . . . to gang rapes.” The State

argued that no evidence reflected that the Defendant had personal knowledge of these

- 45 -

activities and that it was irrelevant to show why he attempted to escape. The State also

noted that several of the documents pertained to times when the Defendant was no longer

confined at the jail. The defense argued that the documents described the jail as a “hell

hole” and that the documents were relevant to establishing the Defendant’s state of mind

at the time of the attempted escape.

The trial court found that the general information relating to the conditions at the

jail and the county’s admission that they were unconstitutional were admissible. It

excluded evidence of specific instances of conduct at the jail, unless the Defendant could

establish a link between himself and the conduct. The court stated that the Defendant had

“a right to show that the jail conditions were bad, as a possible reason that he might

escape, but as far as showing that some gang member raped some other gang member in

the jail, . . . that is far [afield].” Thus, the court permitted the defense to present the

consent order in which Shelby County admitted the conditions were unconstitutional but

not the additional litigation documents because “the majority of which took place when

[the Defendant] was not in [the] jail.”

The purpose of the evidence was to provide a reason for the Defendant’s

attempted escape other than a consciousness of guilt. Mr. Hutton’s testimony and the

consent order established that conditions at the jail were unconstitutional and that the

County agreed to make changes. The excluded documents generally detailed specific

instances of violence and sexual assault, but the incidents were not connected to the

Defendant, and he did not establish the excluded documents relevance. Therefore, the

trial court did not abuse its discretion by prohibiting the admission of the relevant

documents, and the Defendant is not entitled to relief on this basis.

The Defendant asserts that the exclusion of this evidence was a violation of the

Fifth Amendment of the United States Constitution. He did not assert that issue at trial,

and his cursory treatment of the issue in his brief qualifies it for waiver. See Adkisson,

899 S.W.2d at 634; Tenn. Ct. Crim. App. R 10(b). Our review is limited to plain error.

We conclude that the specific instances of conduct the Defendant sought to introduce

were not critical to the defense because nothing connected the Defendant’s experience at

the jail to the unconstitutional conduct. Accordingly, the trial court’s exclusion did not

affect the outcome of the trial. The Defendant has not established plain error and is not

entitled to relief on this basis.

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XIV. Non-Capital Sentencing

Finally, the Defendant raises one sentencing issue related to the application of an

aggravating factor relative to his aggravated robbery conviction. He asserts that proof did

not support a finding that he was a leader in the offense and that the trial court erred by

applying this factor and ordering the sentence for aggravated robbery to be served

consecutively to the death sentence. The State responds that the Defendant has waived

this issue for failing to include a transcript from this portion of the sentencing phase.

Alternatively, the State asserts that the evidence supported application of the enhancing

factor.

As the appellant, it was the Defendant’s burden to prepare an adequate record for

appellate review. See State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). In the

absence of an adequate record, this court must presume that the trial court’s ruling was

correct. See State v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993); see

also State v. Ivy, 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993) (holding that when the

appellant contends that the sentence is excessive but does not include a transcript from

the sentencing hearing, the issue of excessive sentences will be considered waived);

Tenn. R. App. P. 24(b).

Without a transcript of the non-capital sentencing hearing, this court cannot

evaluate the trial court’s application of the enhancement factor, and we presume the

court’s action was correct. The Defendant is not entitled to relief on this basis.

XV. Mandatory Review

When reviewing a conviction for first degree murder and an accompanying

sentence of death, Tennessee Code Annotated section 39-13-206(c)(1)(2018) requires this

court to review the record to determine whether:

(A) The sentence of death was imposed in any arbitrary fashion;

(B) The evidence supports the jury’s finding of statutory aggravating

circumstance or circumstances;

(C) The evidence supports the jury’s finding that the aggravating

circumstance or circumstances outweigh any mitigating circumstances; and

(D) The sentence of death is excessive or disproportionate to the penalty

imposed in similar cases, considering both the nature of the crime and the

defendant.

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A. Arbitrariness of Death Sentence

In accordance with the trial court’s instructions, the jury unanimously determined

that the State proved beyond a reasonable doubt that an aggravating circumstance applied

to the murder committed by the Defendant and that the aggravating circumstance

outweighed the mitigating circumstances. The record reveals that the penalty phase was

conducted pursuant to the applicable statutory provisions and to the rules of criminal

procedure. We conclude that the Defendant’s sentence of death was not imposed in an

arbitrary fashion.

B. Evidence Supporting Aggravating Circumstances

We next turn to the sufficiency of the evidence supporting the aggravating

circumstances found by the jury. In considering whether the evidence supports the jury’s

findings of statutory aggravating circumstances, we must determine, after viewing the

evidence in the light most favorable to the State, whether a rational trier of fact could

have found the existence beyond a reasonable doubt of the aggravating circumstances.

State v. Rollins, 188 S.W.3d 553, 571 (Tenn. 2006) (citing Reid, 164 S.W.3d at 314).

The jury applied one aggravating circumstance that the Defendant “was previously

convicted of one (1) or more felonies, other than the present charge, whose statutory

elements involve the use of violence to the person.” T.C.A. § 39-13-204(i)(2)(Supp.

1998). Our supreme court has defined the word “violence” as “physical force unlawfully

exercised so as to injure, damage or abuse.” State v. Fitz, 19 S.W.3d 213, 217 (Tenn.

2000). “When the statutory elements of the prior felony . . . , in and of themselves, do

not necessarily involve the use of violence to the person,” the trial court is required to

examine the facts underlying the felony to determine whether the (i)(2) aggravating

circumstance may properly be considered by the jury. State v. Bell, 512 S.W.3d 167, 204

(Tenn. 2015) (citing State v. Sims, 45 S.W.3d 1, 11-12 (Tenn. 2001)).

In support of the (i)(2) aggravating circumstance, the State relied upon four prior

convictions: assault with the intent to commit robbery with a deadly weapon, rape, and

two counts of aggravated assault. The trial court noted that aggravated assault could be

accomplished with or without violence and, accordingly, would not always qualify as an

aggravator under subsection (i)(2). The court reviewed the aggravated assault

indictments and determined that the underlying facts involved the use of violence. See

State v. Young, 196 S.W.3d 85, 111-12 (Tenn. 2006) (setting forth guidelines for

determining whether a prior felony involves the use of violence against a person).

Therefore, the court allowed the State to present these prior convictions to the jury for

review. To establish the prior convictions, the State introduced judgments for each

- 48 -

conviction. We conclude that the evidence is sufficient to support the jury’s application

of the (i)(2) aggravating factor.

C. Weighing Aggravating and Mitigating Circumstances

We next consider whether the evidence supports the jury’s finding that the

aggravating circumstances outweighed any mitigating circumstances beyond a reasonable

doubt. We must determine “whether a rational trier of fact could find that the

aggravating circumstances outweigh the mitigating circumstances beyond a reasonable

doubt when the evidence is taken in the light most favorable to the State.” State v.

Freeland, 451 S.W.3d 791, 820 (Tenn. 2014).

At the sentencing hearing, the Defendant stated that he did not wish to present any

mitigating evidence. The trial court noted that the Defendant would need to be

questioned on the record about his decision to forego the presentation of mitigating

evidence pursuant to Zagorski v. State, 983 S.W.2d 654, 660-61 (Tenn. 1998). The

Defendant was placed under oath and testified unequivocally that he understood the

importance of mitigating evidence and his right to present such evidence, that he had

sufficiently discussed the matter with his attorneys, who strongly advised against his

decision, and that he wished to forego presentation of the evidence. The court

determined that the Defendant had freely and voluntarily waived his right to present

mitigation evidence. The court stated that the Defendant had already been through two

capital sentencing trials, one at which mitigation evidence was presented, and that the

Defendant likely understood the consequences of his decision. In accordance with the

Defendant’s decision, the defense did not present mitigating evidence, although the court

instructed the jury that it could consider any mitigating evidence raised by the evidence

and produced by the prosecution or defense in the guilt and sentencing phases.

The record contained little, if any, evidence that could mitigate the Defendant’s

actions, and the State presented sufficient evidence of the Defendant’s prior felonies as an

aggravating factor. We therefore conclude that, viewing the evidence in the light most

favorable to the State, a rational trier of fact could have found that the (i)(2) aggravating

circumstance outweighed the mitigating circumstances beyond a reasonable doubt.

D. Proportionality Review

When this court conducts the proportionality review required by Tennessee Code

Annotated section 39-13-206(c)(1)(D), we do not function as a “super jury” that

substitutes our judgment for the judgment of the sentencing jury. See State v. Godsey, 60

S.W.3d 759, 782 (Tenn. 2001). Rather, we must take a broader perspective than the

jurors to determine whether the defendant’s sentences are ‘“disproportionate to the

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sentences imposed for similar crimes and similar defendants.’” State v. Thacker, 164

S.W.3d 208, 232 (Tenn. 2005) (quoting Bland, 958 S.W.2d at 664). The pool of cases

upon which we draw in conducting this analysis are “first degree murder cases in which

the State sought the death penalty, a capital sentencing hearing was held, and the jury

determined whether the sentence should be life imprisonment, life imprisonment without

possibility of parole, or death.” State v. Rice, 184 S.W.3d 646, 679 (Tenn. 2006).

The purpose of our review of other capital cases is not to identify cases that

correspond precisely with the particulars of the case being analyzed. State v. Copeland,

226 S.W.3d 287, 306 (Tenn. 2007). Rather, our task is to “identify and invalidate the

aberrant death sentence.” Thacker, 164 S.W.3d at 233. A sentence is not

disproportionate because other defendants have received a life sentence under similar

circumstances. State v. Carruthers, 35 S.W.3d 516, 569 (Tenn. 2000). Rather, a death

sentence is excessive or disproportionate where ‘“the case taken as a whole is plainly

lacking in circumstances consistent with those in cases where the death penalty has been

imposed.”’ Thacker, 164 S.W.3d at 233 (quoting Bland, 958 S.W.2d at 668).

This court uses ‘“the precedent-seeking method of comparative proportionality

review, in which we compare a case with cases involving similar defendants and similar

crimes.”’ Copeland, 226 S.W.3d at 305 (quoting State v. Davis, 141 S.W.3d 600, 619-20

(Tenn. 2004)). We examine “the facts and circumstances of the crime, the characteristics

of the defendant, and the aggravating and mitigating circumstances involved, and we

compare this case with other cases in which the defendants were convicted of the same or

similar crimes.” State v. Stevens, 78 S.W.3d 817, 842 (Tenn. 2002).

In conducting this comparison with regard to the nature of the crime, we generally

consider

(1) the means of death; (2) the manner of death; (3) the motivation for the

killing; (4) the place of death; (5) the victim’s age, physical condition, and

psychological condition; (6) the absence or presence of premeditation; (7)

the absence or presence of provocation; (8) the absence or presence of

justification; and (9) the injury to and effect upon non-decedent victims.

Rimmer, 250 S.W.3d at; see Rollins, 188 S.W.3d at 575. We also compare the

defendant’s “(1) prior criminal record, if any; (2) age, race, and gender; (3) mental,

emotional, and physical condition; (4) role in the murder; (5) cooperation with

authorities; (6) level of remorse; (7) knowledge of the victim’s helplessness; and (8)

potential for rehabilitation.” Rimmer, 250 S.W.3d at 35; see Rollins, 188 S.W.3d at 575.

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The evidence in the present case established that the victim was the Defendant’s

former girlfriend and that he had raped and assaulted her on a previous occasion. He

blamed the victim for sending him to jail and threatened to kill her, suggesting

premeditated murder motivated by revenge. Although her body has not been recovered,

the evidence at the crime scene, including the amount of blood, suggested that the victim

suffered a violent death. The evidence also established that the murder occurred during

the perpetration of a robbery. The Defendant disposed of the victim’s body. At the

sentencing hearing, the victim’s mother testified that not knowing exactly how the victim

died and not being able to provide a proper burial was immensely hurtful to the victim’s

family.

The Defendant was thirty-one years old at the time of the instant offenses, and he

had prior convictions for assault with intent to commit robbery with a deadly weapon,

rape, and two counts of aggravated assault. He provided no assistance to the police

during the investigation and expressed no remorse for his crimes.

We conclude that the death sentence in this case is not excessive nor

disproportionate when compared to the death penalty imposed in similar cases. See State

v. Ivy, 188 S.W.3d 132 (Tenn. 2006) (defendant shot his estranged girlfriend multiple

times; prior violent felony aggravator applied); State v. Faulkner, 154 S.W.3d 48, 63

(Tenn. 2005) (defendant murdered his estranged wife after repeated threats to kill her);

State v. Keough, 18 S.W.3d 175 (Tenn. 2000) (defendant stabbed wife after an argument

in a bar and left her to bleed to death in a car; prior violent felony aggravator applied);

State v. Chalmers, 28 S.W.3d 913 (Tenn. 2000) (sole aggravating factor was prior violent

felony); State v. Suttles, 30 S.W.3d 252, 255 (Tenn. 2000) (defendant murdered his

estranged girlfriend); State v. Hall, 8 S.W.3d 593 (Tenn. 1999) (defendant murdered his

estranged wife); State v. Smith, 993 S.W.2d 6 (Tenn. 1999) (defendant murdered store

owner in course of a robbery and prior violent felony aggravator applied); State v.

Johnson, 743 S.W.2d 154 (Tenn. 1987) (defendant killed his estranged wife by

suffocation and prior violent felony aggravator applied).

In completing our review, we need not conclude that this case is identical to prior

cases in every respect, nor must this court determine that this case is “more or less” like

other death penalty cases. See Thomas, 158 S.W.3d at 383. Rather, this court need only

identify aberrant death sentences by analyzing whether a capital case plainly lacks

circumstances similar to those cases in the pool of cases in which a death sentence has

been upheld. The penalty imposed by the jury in the present case is not disproportionate

to the penalty imposed for similar crimes.

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CONCLUSION

In consideration of the foregoing and the record as a whole, we affirm the judgments of

the trial court.

____________________________________

ROBERT H. MONTGOMERY, JR., JUDGE

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