State of Tennessee v. Dallas Sarden

09/25/2020

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs May 19, 2020

STATE OF TENNESSEE v. DALLAS SARDEN

Appeal from the Criminal Court for Washington County

No. 40924B Stacy L. Street, Judge

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No. E2019-01616-CCA-R3-CD

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The Defendant-Appellant, Dallas Sarden, was convicted by a Washington County jury of

first-degree felony murder and robbery, for which he received an effective sentence of life

imprisonment plus five years. In this appeal as of right, the Defendant raises the following

issues for our review: (1) whether the State committed prosecutorial misconduct and

whether the trial court abused its discretion in denying the Defendant’s request for a

mistrial based on the same; (2) whether the trial court erred in allowing the introduction of

pre-recorded testimony of the forensic pathologist and whether the photographs displayed

during the testimony unduly prejudiced the Defendant; (3) whether the evidence is

sufficient to sustain the Defendant’s convictions; and (4) whether the Defendant is entitled

to relief under the cumulative error doctrine. After a thorough review of the relevant facts

and the applicable law, we affirm the judgments of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JAMES CURWOOD

WITT, JR., and J. ROSS DYER, JJ., joined.

Patrick Denton, Johnson City, Tennessee, for the Defendant-Appellant, Dallas Sarden.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant

Attorney General; Ken C. Baldwin, District Attorney General; and Fred Lance, Assistant

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

OPINION

In the late-night hours of August 17, 2015, the Defendant and co-defendant, Aaron

Garland,1 entered the apartment of the victim, Karen Parker, suffocated or strangled her to

death, and ransacked her apartment. The victim’s body was discovered in her living room

the next morning by the apartment’s maintenance men. Subsequent investigation revealed

that the Defendant and co-defendant Garland used the victim’s debit card and a Wal-Mart

gift card, which were found on the Defendant’s person upon arrest. During an interview,

the Defendant also provided incriminating statements to the Johnson City Police

Department (JCPD) as to his involvement, and the investigation also established that he

confessed to killing the victim to his cell-mate. The following proof was adduced at the

Defendant’s trial, which took place on April 9-12, 2018.

On August 18, 2015, Randy Miller, the pest control worker at the victim’s apartment

complex, knocked on the victim’s door to complete regularly scheduled maintenance.

When the victim did not open the door, the maintenance manager at the apartment complex,

Michael Hollifield, used a key to open the victim’s door, and they entered the apartment,

where they found the victim lying on the floor “partially undressed with either a blanket or

a sheet across her face” and no pulse. They called the police, and Miller later identified a

photograph at trial showing the crime scene as he observed it that day.

Michael Hollifield, the maintenance manager, also testified that he had been in the

victim’s apartment several times, and described her as a “sweet, gentle woman.” He saw

the victim the day before the offense, and she was “in a good mood” and “everything

appeared normal.” When he discovered the victim’s body, she was lying near the couch

with “one leg [] up under the couch and the rest of her [] up under her end table.” He said

“[s]he looked like she had been in a struggle and the furniture and everything else was

pretty much tossed.” Hollifield also identified a photograph of the crime scene and several

additional photographs of the victim’s apartment. He said the corner of the victim’s couch

was lying on top of her, and her apartment was in disarray and “totally different from what

the norm would be.”

Sergeant Stephen Diehl of the Johnson City Fire Department (JCFD) responded to

an “obvious death” call at Clark Manor Apartments on the morning of August 18, 2015.

Upon entering the victim’s apartment, he found the victim’s lifeless body in the position

as described by Miller and Hollifield. He exited the victim’s apartment, secured the scene,

and waited for the JCPD to arrive.

Kristen Osgood, the “legal death” investigator from the William Jenkins Forensic

Center, responded to the crime scene to collect information to assist the medical examiner

1

Prior to trial, the Defendant’s case was severed from co-defendant Garland’s case pursuant to

Bruton v. United States, 391 U.S. 123 (1968).

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in determining the manner and cause of the victim’s death. She also took photographs of

the crime scene, admitted at trial, showing the victim lying on her back with her pants

pulled down and her underwear partially exposed, her right leg under the corner of the

couch, and “some bedding items over her head.” There were also photographs of the couch

that was on the victim’s leg, various personal items, including a purse and a wallet strewn

on the couch, the inside of a wallet, a jewelry box, and an entertainment center with its

drawers open. Osgood took photographs of the victim’s body from multiple angles, the

“process of removing the layers” of blankets and pillows from the victim’s head until her

face was showing, and she noted a “reddish-brown substance” that was on the part of the

pillow that was covering the victim’s face. She also noted an “area of discoloration” on

the victim’s upper right chest and a “couple of linear marks on her chest just below her

breast.” Osgood handled an “FTA card,2” which contained a blood sample collected from

the victim. On cross-examination, Osgood testified that she observed several bottles of

prescription medication in the victim’s kitchen.

Vanessa Gause, the victim’s neighbor, testified via a pre-recorded video deposition

at which the Defendant and defense counsel were present and cross-examined the witness.

Gause was allowed to testify by video because she had a pre-scheduled vacation during the

week of the Defendant’s trial. Gause lived next to the victim for ten years, and they saw

each other a couple of times a week for several years. Their apartments shared a wall, and

the victim knocked on the wall if she needed Gause’s help. A little after ten o’clock on

August 17, 2015, the victim knocked on Gause’s door to ask for a soda, and they talked for

about five minutes in Gause’s apartment. The victim was wearing a t-shirt and shorts, and

Gause did not notice any abnormal marks on the victim. Gause identified a photograph of

the victim as she appeared on that day. Gause also identified photographs of the victim

after her death, and Gause said that the victim did not have any marks on her face when

Gause last saw her. Gause said that she would have taken the victim to the hospital had

she noticed any bruising on her face. Gause said that the victim always kept her house

neat. She identified photographs taken at the victim’s apartment after her death, and she

said “[the victim’s] house would never look like this.” Gause was at her apartment on the

evening of August 17, 2015 until “about 25 til 7” the next morning, but she never heard

the victim call for help. Gause did not know the Defendant or co-defendant Garland. On

cross-examination, Gause said that the victim had mentioned co-defendant Garland a few

days before she died, and the victim appeared to be scared of him. Gause had never seen

the Defendant or co-defendant Garland. She believed that co-defendant Garland’s family

lived in the same apartment complex as the victim.

2

The acronym “FTA” is not specifically defined; however, we glean from the record that it refers

to the collection of a DNA sample from an individual.

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Officer Steve Sherfey, an investigator for the JCPD who was undergoing cancer

treatment at the time of the Defendant’s trial, also testified through a pre-recorded video

deposition at which the Defendant was present and represented by counsel. Officer Sherfey

reported to the crime scene, assisted another investigator in collecting evidence from the

crime scene, and identified a series of photographs showing the victim as the items were

being removed from her face. Officer Sherfey also identified the blanket and pillow that

were covering the victim’s face at the crime scene. He said that the pillow was transported

to the Tennessee Bureau of Investigation (TBI) for a blood analysis. Officer Sherfey

identified three wallets, a “faux alligator” skin wallet, a tan wallet, and a black wallet with

a floral design, that were collected from the crime scene, as well as a photograph showing

where the wallets were found. Officer Sherfey found all of these wallets lying out on the

couch and some of the wallets had items sticking out of them. On cross-examination,

Officer Sherfey stated that he could not remember if he specifically collected the wallets

from the crime scene, but he did observe them. He did not collect any forensic information

from the crime scene.

Dr. E. Hunt Scheuerman, the forensic pathologist who performed the autopsy on the

victim on August 19, 2015, was also unavailable to testify at the Defendant’s trial, so his

testimony was taken prior to trial with the Defendant and defense counsel present, and the

video was played for the jury. Dr. Scheuerman identified the FTA card that contained

blood samples from the victim. He also identified the pillow that was covering the victim’s

face at the crime scene, and he pointed out red-brown stains on the pillow. Dr. Scheuerman

identified several photographs that he took during the victim’s autopsy. The victim had

bruising and swelling on her wrists and forearms, which Dr. Scheuerman said was

consistent with blunt force trauma. He said that this type of injury could have been caused

by someone holding the victim’s arms tightly in these areas. Dr. Scheuerman also

identified photographs of the victim’s face, which showed small abrasions on the left side

of her face and discoloration on her lower lip. He agreed that these injuries could be caused

by someone holding a pillow over the victim’s face, and he stated that these injuries would

have bled. He also noted bruising and discoloration on the right side of the victim’s face,

which he said could be caused by a “blow to the head.” The victim also had bruising on

the left side of her forehead caused by blunt force trauma. Dr. Scheuerman did not believe

that this type of bruising would be caused by a cloth substance such as a pillow. Another

photograph showed bruising under the victim’s chin caused by blunt force trauma.

Dr. Scheuerman also identified a photograph of the victim’s upper torso showing a

bruise on the victim’s right breast and “linear red-orange abrasions” under her breasts. He

stated that the underwire of the victim’s bra could have caused these abrasions. He agreed

that these injuries could be caused by someone sitting on the victim’s chest while she was

struggling to get up. Dr. Scheuerman identified a photograph of the victim’s right leg

showing a patterned compression mark, which he believed matched the foot of the victim’s

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couch. The victim had bruising caused by blunt force trauma on her right lower leg and an

abrasion on her left flank, which he opined could be caused by someone dragging the victim

or something hitting her. The last set of photographs identified by Dr. Scheuerman showed

an abrasion, a contusion, and a subdural hematoma on the victim’s head. He agreed that

these injuries were consistent with someone holding the victim’s head against the carpet

with the pillow while she struggled. He said that it would take “some force” to cause this

type of injury and that it would be possible for this type of injury to occur from someone’s

holding the victim’s head against the carpet with a pillow, although he believed this would

come from more direct blunt force trauma.

Dr. Scheuerman’s autopsy report was entered into evidence. He opined that the

victim’s cause of death was “suffocation, blunt force injuries, and possible manual

strangulation with significant contributing factors being coronary atherosclerosis or the

hardening of the . . . arteries that feed the heart muscle itself, hypertensive heart disease,

and chronic obstructive pulmonary disease (COPD), which is bronchitis with emphysema.”

He said that the victim’s COPD would make her more susceptible to manual strangulation

or asphyxiation. He also said that pressure from someone sitting on the victim’s chest

would be a contributing factor to her inability to breathe. He opined that the victim could

have died by manual strangulation due to the bruising around her neck and bleeding under

her skin near her sternum.

On cross-examination, Dr. Scheuerman stated that any or all of the listed causes of

death, or a combination, could have led to the victim’s death. He said that he could not

give a specific window of time as to how long it took for the victim to die, although he said

that “compression of the jugular vein” could take up to eight minutes for death to occur,

but compression of the carotid artery could lead to death in “seconds.” He could not be

certain which mechanism occurred based on the victim’s autopsy. Dr. Scheuerman agreed

that, all other variables being equal, it would “be more likely that someone who is heavier”

would break the ribs of a victim than someone who is lighter. He agreed that there was no

physical evidence that more than one person was responsible for inflicting the injuries on

the victim. On redirect examination, Dr. Scheuerman said that he could not exclude a

scenario where two individuals were taking turns sitting on the victim.

TBI Special Agent Charly Castelbuono identified the victim’s FTA card and the

pillow recovered from the crime scene, which she tested for the presence of blood and

DNA. The DNA matched the victim, and a swab from the pillow gave a DNA profile that

was “consistent with the mixture of three (3) individuals including at least one (1) male.”

Agent Castelbuono received buccal swabs from the Defendant and co-defendant and

fingernail clippings from the victim, but she was unable to find anything “of note.” Her

report was entered into evidence.

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Laura Chandley, the victim’s sister, testified that she bought a Wal-Mart gift card

for the victim for her birthday. The State admitted into evidence a screen shot from Wal-

Mart security footage showing Chandley exiting the building and a copy of the receipt

reflecting the purchase of the gift card on August 14, 2015, two days prior to the offense.

The number on the back of the gift card matched the number on the receipt. Chandley

testified that she canceled the victim’s credit card after her death. Darren Ricker, the asset

protection manager at Wal-Mart, also identified the same receipt showing the purchase of

a gift card on August 14, 2015, as well as a summary of the purchases made on this card.

The summary showed the date the card was activated, a gasoline purchase at 9:51 p.m. on

August 18, 2015, a store purchase at 3:59 p.m. on August 19, 2015, and another store

purchase at 2:45 a.m. on August 20, 2015. Ricker identified the receipts from the in-store

purchases and the gift card used to make these purchases.

Ashley Hickman had known co-defendant Garland since high school, and met the

Defendant through co-defendant Garland. On August 18, 2015, co-defendant Garland

messaged Hickman through the Defendant’s phone asking for a ride. She told them that

she could pick them up in a few hours, and she picked them up from Red Lobster in Johnson

City around 9:00 p.m. She took them back to her apartment, where they stayed for around

an hour. Hickman testified that she did not observe anything abnormal between the two,

and neither of them were trying to “dominate” the other. She stated that the Defendant was

making phone calls to arrange a ride to Kingsport. Hickman, her fiancé, the Defendant,

and co-defendant Garland left in Hickman’s car and stopped at the Wal-Mart Murphy’s

gas station. Hickman stated that she and her fiancé were sitting in the front seats, while

the Defendant and co-defendant Garland were in the back. She did not hear them say

anything during the ride. When they arrived at the gas station, the Defendant and co-

defendant Garland asked Hickman’s fiancé to pay for the gas with a card, but he refused.

Co-defendant Garland got out of the car and paid for the gas with a card. They left the gas

station in Hickman’s car and later stopped at the McDonald’s drive-thru in Boones Creek.

Hickman and her fiancé paid for their order with cash, and the Defendant and co-defendant

Garland paid with a card. She did not know which man handed her the card to pay. The

State played a video showing Hickman’s car going through the McDonald’s drive-thru,

which she confirmed. After leaving McDonald’s, Hickman drove to Kingsport, and she

dropped the Defendant and co-defendant Garland off at Burger King. She said she did not

notice any suspicious behavior from the men at the time, and she did not see them again.

On cross-examination, Hickman said that she spent approximately three hours with the

Defendant and co-defendant Garland, and she said nothing seemed out of the ordinary. She

did not agree that the Defendant was playing the “deferential position” between he and co-

defendant Garland.

Leeona Burgmann, the manager at McDonald’s on East Stone Drive in Kingsport

in August 2015, located the video showing the McDonald’s purchase for the JCPD, which

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was played for the jury. The video showed two men, identified as the Defendant and co-

defendant Garland, approach the counter at McDonald’s, and the Defendant appeared to

swipe a card at the register.3 The Defendant approached the counter again a few minutes

later and appeared to swipe a card again. He approached the counter a third time to pick

up his food. Ronnie Larkins, Jr., a taxi driver for Cabbie Cab at the time, received a call

from Red Roof Inn on August 19, 2015, about driving two people to Greenville. He drove

to the Red Roof Inn, where he picked up a Caucasian male and an African American male.

He said that the men changed their minds due to the price of the cab fare to Greenville and

asked to be taken to the Fort Henry Mall. One of the men handed Larkins a card from the

back seat to pay the seven dollar fare to the mall. He believed that this took place in the

morning. Larkins was later contacted by the police and advised that the card used to pay

the fare was obtained illegally. Larkins voided the transaction and provided the receipt to

the officers. This receipt was entered into evidence. Larkins identified the Defendant as

the African American male that he drove that night.

Glenda Nester, the head supervisor at Shoney’s in Kingsport, testified that the

Defendant and a white male came into the restaurant on August 19, 2015, and she seated

them. She said that the men were there for an hour and a half to two hours, and they both

went outside and came back in several times. She said that the white man came to the

register to pay the bill with a credit card, while the African-American man went outside.

Nester ran the credit card three times, and it declined each time. She noticed that the first

name on the card was “Karen,” so she asked the man where “Karen” was, and he said she

was at the motel. When the man said he had no other way to pay the bill, she called the

police, who arrived shortly thereafter. Nester said that the white man stepped around the

corner of the counter when the police officer arrived, while the African-American man

never reentered the restaurant. Two women offered to pay the men’s bill, so the officer

left. Nester identified the ticket given to the men to pay their bill.

Lori Ann Cordell, a server at Shoney’s, testified that the Defendant and another man

were seated at a table in her section on the morning of August 19, 2015. She stated that

the Defendant was asking questions about the menu and seemed to be “more in charge of

the conversation” than the other man. After the men ate, she placed the bill on their table,

and the Defendant exited the restaurant while the other man tried to pay. When Cordell

went outside to take a break, she saw the Defendant, and he began asking her questions

about the transaction and told her that his mother was coming from Greenville to pay the

bill. He also told her that his cell phone died, and he said that the credit card belonged to

his mother and that she had given it to him to use in Kingsport.

3

The video is time stamped 23:34:20 on August 18, 2015. Burgmann testified that the date stamp

on the video is correct, but the time stamp is off by an hour.

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Officer Mike Campbell responded to Shoney’s on August 19, 2015, following a call

that someone had not paid their bill. While Officer Campbell was gathering information

for his report, the African-American male, later identified as the Defendant, re-entered the

restaurant and told him that the credit card that they tried to use was his grandmother’s

card, that he was trying to contact his grandmother to come to Shoney’s to pay the bill, and

that his phone had died and he did not have his grandmother’s number memorized. Officer

Campbell asked the Defendant to charge his phone so he could retrieve the number. While

waiting for the Defendant’s phone to charge, Officer Campbell asked to see the credit card,

and the Defendant explained that the white male, who he called John Lane, had the card.

The Defendant also said that he was in Kingsport to visit this man. During this time, the

manager at Shoney’s told Officer Campbell that someone had paid the men’s bill, so he let

the Defendant go and left.

John Patterson, the branch manager at Regions Bank in Johnson City, testified that

he compiled a history of the activity on the victim’s debit card from August 18-19, 2015.

We have reproduced the exhibit below:

[Victim’s] Debit Card

Timeline of Transactions

Date Military Time Standard Time Merchant Amount Posted

1. 8/18/2015 21:00:21 9:00 PM McDonald’s F350 $4.92 Yes

2. 8/18/2015 22:54:23 10:54 PM Kroger #328 $5.37 Yes

3. 8/18/2015 23:29:58 11:29 PM Exxon 3408 $1.52 Yes

4. 8/18/2015 23:36:30 11:36 PM McDonald’s F173 $8.51 Yes

5. 8/18/2015 23:38:01 11:38 PM McDonald’s F173 $2.29 Yes

Victim’s Debit Card Closed 8/19/20154

Date Military Standard Merchant Amount Posted

Time Time

6. 8/19/2015 1:05:19 1:05 AM GreyHound $253.00 No

7. 8/19/2015 1:05:19 1:05 AM GreyHound $253.00 No

Reversal

8. 8/19/2015 8:22:39 8:22 AM Cabbie Cab $7.00 No

9. 8/19/2015 9:15:34 9:15 AM Shoney’s #2 $20.99 No

10. 8/19/2015 9:45:01 9:45 AM Shoney’s #2 $20.99 No

11. 8/19/2015 12:40:40 12:40 PM KFC J718011 $1.96 No

Kingsport Police Department (KPD) Investigator Martin Taylor received

information from the JCPD that the victim’s credit card was being used. He learned that

4

Patterson testified that the victim’s debit card was closed sometime between the last purchase

made at McDonald’s on 8/18/2015 and the next day.

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the individuals who were using the victim’s card were on foot so he drove around and

located the Defendant and co-defendant Garland walking down the street. Investigator

Taylor detained both men, and he told the Defendant that he was being detained due to the

incident at Shoney’s, upon which the Defendant stated that the card belonged to his mother,

Karen Parker. Investigator Taylor searched the Defendant and recovered a receipt from

Wal-Mart and a Wal-Mart gift card with “Happy Birthday to You” written on it. He

arrested the Defendant on an unrelated matter and transported him to the Kingsport Police

Department separately from co-defendant Garland.

Derik Bailey testified that he was the Defendant’s cell mate on “several occasions”

at the Washington County Detention Center. During this time, the Defendant told Bailey

that he trusted him. The Defendant told Bailey that he had received a text message from

co-defendant Garland, and he met up with him. Bailey recounted what the Defendant told

him:

So they walked to some apartments and [co-defendant Garland] walked up

and knocked on the lady’s door and asked her for a cigarette. She said she

didn’t have one, so [co-defendant Garland] and him proceeded to walk away

and then [co-defendant Garland] had went back and knocked again. Then,

when she opened the door, that he hit her in the face and that she started

stumbling back and fell. At that time, he said that they went in and one of

them held her down and then moved some couches on her legs and then put

like a pillow on her face and held down her arms and they was taking turns

while one of them would search through stuff. He said they didn’t get much

like credit cards or something.

The Defendant also told Bailey that “the only reason he noticed [the victim] died is

because she defecated on herself.” Bailey testified that he had pending criminal charges,

but he stated that he was testifying because he did not “believe it would be right if [the

Defendant] was to get away with that.” Bailey also stated that the Defendant got into

several fights while he was in prison. He said that the Defendant was “calm and collected”

when he recounted what he did to the victim. On cross-examination, Bailey denied any

involvement with gangs, and he confirmed that he and the Defendant had been in a fight

with another inmate. He stated that he got thrown into the “hole” for one of these

altercations, but he did not blame the Defendant for this. Bailey said that he had received

no promises in exchange for his testimony. On redirect examination, Bailey stated that he

had not read or heard anything about the incident prior to what the Defendant told him.

Curtis Carico, another inmate who was confined with the Defendant, stated that he did not

wish to testify but that the Defendant had not threatened him in any way.

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Justin Adams, the lead investigator on the victim’s homicide, testified that he

interviewed the Defendant at the Kingsport Police Department on August 20, 2015. He

stated that the police department was not equipped to record interviews, so he taped the

Defendant’s interview on his iPad; however, when the screen “timed out” on his iPad, the

recording was cut off. Investigator Adams was not aware of this issue until the conclusion

of the interview. He said that the interview continued for a few minutes after the iPad

stopped recording. Investigator Adams said that the Defendant told him, “I played my

part.” The Defendant also told Investigator Adams that his DNA would be found on a

pillow at the crime scene. Investigator Adams said that the Defendant mentioned this

before anything was mentioned about “the crime scene and manner of death or mechanism

of death.” The Defendant also said, “This is real life,” and “Everything that happened,

what you’re asking me, everyone who you’ve done talked to. . . people had parts. I take

full responsibility. I had a part. There’s your conviction.”

The State played the recorded portion of the Defendant’s interview for the jury.

During the interview, Investigator Adams told the Defendant that they were investigating

the circumstances surrounding the victim’s stolen credit cards, and the Defendant said that

the victim was co-defendant Garland’s aunt. The Defendant repeatedly said that he was

not a snitch. He recounted his relationship with co-defendant Garland, and he continually

asked the investigators to “ask your question.” Investigator Adams asked the Defendant

how he knew the victim, and he said he knew her through co-defendant Garland.

Investigator Adams also asked the Defendant if he could “pick up the phone and call [the

victim] today,” to which the Defendant did not respond. Investigator Adams continued,

“It’s not possible is it,” and the Defendant said, “This is real life.” The Defendant said that

he did not kill the victim, but he said that he was there and he “helped do the shit.” The

video timed out shortly after he made these statements. The Defendant did not say anything

about his DNA being found on the pillow or playing his part in the strangulation on the

recorded portion of the video.

On cross-examination, Investigator Adams stated that the Defendant’s case was his

first homicide case as the lead investigator. He said that he was “unsure of a lot of things”

when he interviewed the Defendant, other than that he was in possession of the victim’s

credit cards. He explained that he asked the Defendant several times to explain what he

meant by “playing his part,” but the Defendant was reluctant to say anything. Investigator

Adams stated that he learned that co-defendant Garland knew the victim and that the victim

had accused co-defendant Garland of stealing from her several years prior to her death.

Defense counsel questioned Investigator Adams about the JCPD’s General Order which

requires officers to make a written statement of a recorded interview, and he said he was

unaware of this order. Investigator Adams said that he was unable to complete a written

statement from the Defendant because the Defendant “asked for counsel and the interview

had to be stopped.” He believed that the Defendant knew that the interview was being

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“memorialized” because he asked about the iPad, and Investigator Adams told him that he

was being recorded. Investigator Adams said that the conversation “turned to DNA” at

some point, but he was “one hundred percent certain” that he did not bring up anything

about the “pillow or strangulation or DNA” because he was unsure how the victim was

killed at that point. He agreed that co-defendant Garland could have told the Defendant

about the pillow, but he did not ask him this. Defense counsel showed Investigator Adams

a photograph of the Defendant and co-defendant Garland from Kroger video surveillance,

and Investigator Adams agreed that the Defendant was “significantly” heavier than co-

defendant Garland. Investigator Adams said that there was no physical evidence that the

Defendant was at the crime scene on August 17, 2015. He was not aware that the

Defendant and co-defendant Garland had been to the victim’s house a few days prior to her

death. On redirect examination, Investigator Adams stated that co-defendant Garland’s

DNA was also not found at the crime scene.

KPD Investigator Gerald Ray testified that he saw the Defendant and Investigator

Adams at the Kingsport Police Department on August 19, 2015. At one point during the

Defendant’s interview, Investigator Ray stood next to the door of the interview room, and

he heard the Defendant crying and telling Investigator Adams that “he played a part in the

strangulation but his DNA would not be found on the victim’s neck, but it would be, his

DNA would be found on a pillow.” After hearing this, he walked away and told another

investigator what he had heard. On cross-examination, Investigator Ray said that the door

to the interview room was closed, but he could hear what was being said through the door.

He said that he spoke to Investigator Adams about the case a couple of times. He was not

aware of the problems with the video. Following this testimony, the State rested.

The Defendant, who was twenty-five years old at the time of trial, testified that he

had been living in Johnson City with his mother for approximately two weeks prior to his

incarceration. He described his childhood as “somewhat” rough, and he came out as gay

when he was a teenager. He met co-defendant Garland when they were both in a group

home as children, and they developed a friendship and eventually a romantic relationship.

The Defendant left the group home in 2011 when he graduated from high school, and he

moved outside of Tennessee and did not return until 2015. In August 2015, while the

Defendant was staying with his mom, he received a Facebook message at 2:00 a.m. from

co-defendant Garland, who he had not talked to since leaving the group home. Co-

defendant Garland asked the Defendant if he wanted to meet the next day, and they

eventually met at a hotel room, where they smoked weed and had sex. The Defendant

returned to his mother’s house, and he met with co-defendant Garland again the next day.

He stated that co-defendant Garland told him that “he needed to go to his aunt’s house

because she was going to give him some money and some pills.” He explained that he did

not know this woman, and co-defendant Garland did not tell him her name. He said that

co-defendant Garland told him to “play a role in acting straight[,]” so the Defendant went

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into the victim’s apartment with co-defendant Garland and sat on the couch while the

victim and co-defendant Garland talked in the kitchen until the victim kicked them out.

Defense counsel asked the Defendant if he remembered what was said during these

conversations, and the State objected on hearsay grounds and also said, “He’s making this

up as he goes,” to which defense counsel objected and requested a mistrial.

The Defendant stated that he did not see co-defendant Garland for a day and a half

after the incident with the victim. The Defendant next saw co-defendant Garland at a

festival, after which they went to the Defendant’s mother’s apartment; however, she told

co-defendant Garland that he could not stay there, so he left. The Defendant received a

text message from co-defendant Garland, stating that his “aunt” would give him money for

doing odd jobs around her house. He stated that he did not want to go to the victim’s house

because of what happened previously, but he did not have anything to do, so he went. The

Defendant stated that, when they arrived at the victim’s apartment, he refused to go inside

and instead stayed outside and smoked a cigarette and listened to music. He believed that

they arrived at the victim’s apartment around midnight, and co-defendant Garland knocked

on the door, went inside, and came back outside five to ten minutes later. The Defendant

did not see the victim that night. He stated that co-defendant Garland came out of the

victim’s apartment with money and a gift card and was “basically rushing” the Defendant,

and he “reluctantly” walked with co-defendant Garland to a gas station. The Defendant

said that co-defendant Garland told him to use the victim’s card and that she was letting

them borrow it, so he used the card to buy cigarettes and a Gatorade at the gas station.

The Defendant did not deny being at any of the places where the victim’s credit card

and Wal-Mart gift card were used. The Defendant said that he and co-defendant Garland

walked around for hours after leaving the victim’s house, and they eventually ended up at

the Defendant’s mother’s house, where he snuck co-defendant Garland in through the

window. The Defendant stated that they went to Red Lobster the next morning, and co-

defendant Garland used the Defendant’s phone to call Hickman to ask for a ride. He said

he had never met Hickman prior to that night, but he knew Hickman’s fiancé from the

group home. He said that Hickman dropped him and co-defendant Garland off at his

grandmother’s house so that he could gather his clothes to take to his uncle’s house in

Kingsport. The Defendant confirmed that he was in an intimate relationship with co-

defendant Garland at that time. They next went to Hickman’s apartment, where the

Defendant contacted his uncle to see if he and co-defendant Garland could stay with him.

They went to McDonald’s with Hickman and her fiancé, and co-defendant Garland gave

Hickman the victim’s credit card to pay for his and the Defendant’s food. The Defendant

did not believe that co-defendant Garland’s behavior was out of the ordinary at that time.

He said that Hickman dropped him and co-defendant Garland off at Burger King, and they

went to his uncle’s house and then to “different places” including Kroger and McDonald’s,

where they used the victim’s credit card, although the Defendant insisted that he did not

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know the credit card was stolen at that time. The Defendant said that co-defendant Garland

would not take the credit card to pay for their food at McDonald’s, so the Defendant paid,

and they sat in the corner, at which point the Defendant saw that the Greyhound website

was “pulled up” on his phone and he saw one-way tickets to New York City with the

Defendant and co-defendant’s names. He said that co-defendant Garland had his phone

while he was paying for their food.

The Defendant said, “Before all this happened, I think I should have put two and

two together.” He explained that co-defendant Garland had a text on his phone that said,

“Did you kill-who did you kill last night?” He stated that co-defendant Garland took the

battery out of his phone after receiving this message, and he never used his phone again

but used the Defendant’s phone instead. After the Defendant saw the Greyhound tickets

on his phone and that the card was declined, he “confronted” co-defendant Garland, who

told him that he choked the victim when he was inside her apartment and robbed her. He

said that co-defendant Garland also told him that the Defendant’s DNA would be found in

the victim’s apartment and that the Defendant would be “convicted in this murder with

him” because he “killed the bitch.” The Defendant explained that he did not call the police

because he was scared, and he was convinced that his DNA would be found at the victim’s

apartment since he had been there a few days prior. The Defendant insisted that he “never

laid a hand on the [victim],” “never killed [the victim],” and never went inside her

apartment that night. The Defendant and co-defendant Garland continued to go to different

places, and the Defendant said he considered leaving but he did not know if co-defendant

Garland was telling the truth about killing the victim. The Defendant described what

happened at Shoney’s, and he admitted that he lied to the officer about co-defendant

Garland’s name because he was scared and trying to protect co-defendant Garland. After

the Shoney’s bill was paid, the Defendant met co-defendant Garland at the mall. The

Defendant said that “nothing really happened” between this time and when he was taken

into custody.

The Defendant stated that he admitted to Investigator Adams that he was there and

had “a part,” but he insisted that he told Investigator Adams that he did not kill the victim.

He said that he was not in the victim’s apartment “helping” co-defendant Garland, and he

explained that he “felt like the part that [he] played is that [he] should have called the

police” when co-defendant Garland told him what happened. He insisted that he did not

know that co-defendant Garland was killing and robbing the victim. The Defendant also

said that he “never mentioned anything about a pillow,” but he did say “something about

strangulation because [co-defendant Garland] told [him] that he choked [the victim].”

On cross-examination, the State questioned the Defendant about his prior felony

record, which included a 2014 conviction for larceny of a vehicle and a 2013 conviction

for possessing a stolen vehicle. The Defendant reiterated that he did not say anything about

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a pillow to Investigator Adams, although he stated that he may have said something about

DNA because he was “convinced by [co-defendant Garland] that [his] DNA would be

inside that apartment.” He agreed that the only place he sat in the victim’s apartment was

her couch. The Defendant admitted that he told Investigator Adams “something about a

strangulation,” but he denied saying that he “played a part in the strangulation.” The

Defendant said that he felt like he played a part because he was “being a lookout for

somebody while [co-defendant Garland] was in there killing that woman.” The Defendant

said that he was crying during his interview because he was embarrassed and ashamed of

himself for not doing anything, but he insisted that he did not know what was going on

inside the apartment. He stated that he told Investigator Adams that he took “full

responsibility” because he used the victim’s credit card. The Defendant stressed that he

was protecting co-defendant Garland, who convinced the Defendant that his DNA would

be found in the victim’s apartment and that he would be convicted for her murder.

The Defendant explained that he was “not a lookout for murder or robbery[,]” but

he “was a lookout for something that [he] did not [know] that was going on inside that

apartment.” He stated that co-defendant Garland was carrying money, a Walmart gift card,

and a “green debit card” when he came out of the victim’s apartment, and he told the

Defendant that his aunt let him borrow the cards and money. The Defendant said that he

did not know the victim’s name when he went to her apartment with co-defendant Garland,

and he did not hear anything that they said to each other. The Defendant said that he waited

outside the victim’s apartment on his “own will” on the night of August 17, 2015 “because

of what happened two nights prior to that.” He explained that he did not find it odd that

co-defendant Garland had the victim’s debit card because he believed that the victim was

the co-defendant’s aunt. The Defendant explained that, after they left the victim’s

apartment and arrived at the gas station, co-defendant Garland handed him the victim’s

card and told him to buy cigarettes, but he did not explain why he wanted the Defendant to

make these purchases. The Defendant said that he and co-defendant Garland arrived at his

mother’s house around 4:00 a.m., and he did not know what had happened with the victim

at that time. The Defendant then walked through the places where he and co-defendant

Garland went the next day, as he said on direct examination. The Defendant explained that

he did not leave co-defendant Garland during that time because the co-defendant had

nowhere to go, and the Defendant did not want to “kick him to the curb.”

The Defendant explained that, after staying the night at his uncle’s house, he and

co-defendant Garland walked to Red Roof Inn to get a room, but the credit card was

declined. The Defendant had trouble remembering the days and times that he and co-

defendant Garland did certain things. The Defendant stated that, as he and co-defendant

Garland were walking down the road after leaving his uncle’s house, they stopped at

Kroger, and they saw the Red Roof Inn and decided they wanted to stay there. The receipt

from Kroger showed that this took place around 10:54 p.m. The Defendant agreed that the

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victim’s card history did not show an attempted transaction at the Red Roof Inn. The

Defendant stated that he and co-defendant Garland walked around Kingsport doing nothing

and then went to McDonald’s after leaving the Red Roof Inn, where the Defendant said he

learned of the murder for the first time. The Defendant stated that they walked around for

hours after leaving McDonald’s because co-defendant Garland did not have anywhere to

go. They went to Walmart to buy cigarettes, but the Defendant could not remember who

purchased them. The Defendant stated that they walked back to the Red Roof Inn, where

the cab driver picked them up. He insisted that he “never touched [the victim’s] card again

after leaving McDonald’s the previous night. He explained that they took a cab to the Fort

Henry Mall and walked to Shoney’s. The Defendant said that he never told the waitress at

Shoney’s that the credit card had money on it from his grandmother, and he stated that co-

defendant Garland had the card at that time. He explained that he lied because he was

afraid of co-defendant Garland, and he was trying to protect him. The Defendant said he

did not want to believe what was happening until he sat in the interview room with

Investigator Adams, which was why he said, “This is real life.” The Defendant insisted

that co-defendant Garland used his phone to attempt to purchase the tickets from

Greyhound. He agreed that he and co-defendant Garland were “constantly” in each other’s

presence during this time period, although the Defendant stated that he “tried leaving [co-

defendant Garland].” After the Defendant’s testimony, the defense rested.

Following deliberations, the jury convicted the Defendant as charged, and he was

subsequently sentenced to a term of life imprisonment plus five years. On August 19,

2019, the trial court conducted a hearing on the Defendant’s motion for new trial, which

was denied. The Defendant filed a timely notice of appeal, and his case is now properly

before this court for our review.

ANALYSIS

I. Prosecutorial Misconduct. First, the Defendant asserts that the trial court abused

its discretion in denying his request for a mistrial following “flagrantly inappropriate

prosecutorial remarks made to the jury during the [D]efendant’s direct examination

testimony.” He asserts that his credibility was the “central and defining issue” in his case,

and that, because the prosecutor could not “otherwise prove that the [Defendant] was not

credible, [he] effectively asserted it himself during the proof phase.” In response, the State

contends that the trial court properly exercised its discretion in denying the Defendant’s

motion for a mistrial. The State acknowledges that the prosecutor’s comment was

improper but asserts that he “misspoke in the heat of the moment” and “promptly

apologized and admitted that he should not have made the comment.” The State also

asserts that the evidence against the Defendant was strong and notes that the trial court

issued a curative instruction following the prosecutor’s comment. We agree that the

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comment was improper; however, it was not so inflammatory or improper to negatively

affect the verdict.

During the Defendant’s direct examination, while he was explaining what happened

when he and co-defendant Garland went to the victim’s apartment for the first time, the

following exchange occurred:

[DEFENDANT]: I was told to act straight and [co-defendant Garland] told

me while we were going to his aunt’s house that I needed to play a role -

well, he didn’t say I need to play a role, but he, to me, he wanted me to play

a role that I didn’t know how to play. So when we get there, I just didn’t

speak or anything. I went inside the apartment with [co-defendant Garland]

and I sat on the couch and they went back into the kitchen somewhere and

they were talking and she basically – we’re in there for about five (5) minutes

and she kicked us out and we left.

[DEFENSE COUNSEL]: Do you remember anything that was said or any

substance of those conversations?

[DEFENDANT]: She said...

[PROSECUTOR]: Your Honor, again, we’re going to object to what she

said. He’s making this up as he goes.

[DEFENSE COUNSEL]: Now, Judge, I object to that.

Following this exchange, defense counsel requested a mistrial, which the trial court

subsequently denied, stating that it had admonished the prosecutor from making further

such comments. The trial court also issued the following curative instruction to the jury:

Before we broke for lunch, [the prosecutor] made a comment that “He’s

making this up,” something like that. I’m going to instruct you to disregard

that statement that was made by [the prosecutor]. Sometimes in the heat of

the moment, I’m not going to say battle, but in the heat of the moment, people

blurt things out and that was an improper statement. Because whether or not

a witness, whether it’s the [D]efendant, an expert witness or any other

witness, whether or not they've made something up or what they’re saying is

the truth or somewhere in between, you get to decide that, not anybody else

and you base that on your observations and your recollection and all of the

- 16 -

testimony in the case, not what anybody else says. Okay? Everyone

understand that? Anybody have any questions? That’s the zebra we talked

about that’s gone through the room. You all may not forget it but you cannot

consider it in making your determinations in this case. Everyone understand?

All right.

Prosecutorial misconduct does not constitute reversible error absent a showing that

it has affected the outcome of the trial to the prejudice of the defendant. State v. Stephenson,

195 S.W.3d 574, 603 (Tenn. 2006) (citing Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001)).

In order to be entitled to relief on appeal, the defendant must “show that the argument of

the prosecutor was so inflammatory or the conduct so improper that it affected the verdict

to his detriment.” State v. Farmer, 927 S.W.2d 582, 591 (Tenn. Crim. App. 1996).

Although not exhaustive, Tennessee courts have recognized five general areas of

potential improper prosecutorial argument: (1) intentionally misstating the evidence or

misleading the jury as to the inferences it may draw; (2) expressing personal beliefs or

opinions as to the truth or falsity of any testimony or the guilt of the defendant; (3)

inflaming or attempting to inflame the passions or prejudices of the jury; (4) injecting

issues broader than the guilt or innocence of the accused; and (5) arguing or referring to

facts outside the record unless the facts are matters of common knowledge. State v.

Thompson, No. E2018-01481-CCA-R3-CD, 2019 WL 5298733, at *9 (Tenn. Crim. App.

Oct. 18, 2019), perm. app. denied (Mar. 25, 2020) (citing State v. Goltz, 111 S.W.3d 1, 6

(Tenn. Crim. App. 2003)).

This court must consider the following factors when determining whether the

argument of the prosecutor was so inflammatory or improper to negatively affect the

verdict:

(1) the conduct complained of viewed in the light of the facts and

circumstances of the case; (2) the curative measures undertaken by the court

and the prosecution; (3) the intent of the prosecutor in making the improper

arguments; (4) the cumulative effect of the improper conduct and any other

errors in the record; and (5) the relative strength and weakness of the case.

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).

The decision to grant or deny a mistrial rests within the sound discretion of the trial

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court and will not be reversed absent an abuse of discretion. State v. Nash, 294 S.W.3d

541, 546 (Tenn. 2009); State v. Robinson, 146 S.W.3d 469, 494 (Tenn. 2004). A trial court

should declare a mistrial “only upon a showing of manifest necessity.” Robinson, 146

S.W.3d at 494 (citing State v. Saylor, 117 S.W.3d 239, 250-51 (Tenn. 2003)). “‘In other

words, a mistrial is an appropriate remedy when a trial cannot continue, or a miscarriage

of justice would result if it did.’” Saylor, 117 S.W.3d at 250 (quoting State v. Land, 34

S.W.3d 516, 527 (Tenn. Crim. App. 2000)). “‘The purpose for declaring a mistrial is to

correct damage done to the judicial process when some event has occurred which precludes

an impartial verdict.’” State v. Reid, 164 S.W.3d 286, 341-42 (Tenn. 2005) (quoting State

v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996)). The party seeking a mistrial

has the burden of establishing the necessity for a mistrial. Reid, 164 S.W.3d at 342 (citing

Williams, 929 S.W.2d at 388). In determining whether a trial court abused its discretion in

granting or denying a mistrial, this court should consider the following factors: “(1)

whether the State elicited the testimony, (2) whether the trial court gave a curative

instruction, and (3) the relative strength or weakness of the State’s proof.” State v.

Welcome, 280 S.W.3d 215, 222 (Tenn. Crim. App. 2007) (citing State v. Lawrence Taylor,

No. W2002-00183-CCA-R3-CD, 2003 WL 402276, at *10 (Tenn. Crim. App. Feb. 14,

2003)).

As an initial matter, the prosecutor’s comment that the Defendant was “making this

up as he goes” was improper. However, upon review of the Judge factors, we do not

consider this comment to be so inflammatory or improper that it negatively affected the

verdict. The record shows the prosecutor’s comment was made during the Defendant’s

testimony, while he was giving his version of events. The Defendant was testifying as to

what co-defendant Garland and the victim said to him when they were inside the victim’s

apartment, and the prosecutor objected based on hearsay, followed by the comment in

question, that the Defendant was “making this up as he goes.” Upon objection to the

prosecutor’s comment, the prosecutor immediately apologized. The trial court issued a

lengthy curative instruction to the jury to disregard the statement and advised the jury that

credibility was to be determined solely by the jury. The trial court also instructed the jury

that statements, remarks, and arguments of counsel are not evidence. More significantly,

the record shows that the evidence of the Defendant’s guilt in this case was overwhelming.

Receipts and videos showing the Defendant using the victim’s gift card shortly after her

death were admitted into evidence. Although the Defendant denied going inside the

victim’s apartment on the night of the offense, he admitted to “his part” in the offense as

well as provided details of the offense to his cellmate. Accordingly, while the comment

was indeed improper, it does not require reversal in this case. The Defendant is not entitled

to relief on this issue.

II. Pre-recorded Testimony of Dr. Scheuerman. The Defendant asserts that,

while Dr. Scheuerman was testifying about images related to the victim’s autopsy, “the

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[S]tate displayed those images in lieu of any visual representation of the witness.” He

argues, “This had the presumably unintended effect of unduly emphasizing graphic

evidence that was patently prejudicial to the [Defendant] and depriving him of due process

of law.” He notes that “this may be an issue of first impression for this [C]ourt” and likens

the issue to “other cases dealing with complaints of evidence emphasis. . . involv[ing] video

or audio evidence that a jury has requested revisiting after the close of proof.” He

acknowledges that this issue must be reviewed under an abuse of discretion standard.

The State contends that the trial court properly allowed the State to use Dr.

Scheuerman’s video deposition at trial. The State asserts that the evidence was relevant

and that “[d]ecisions about the admissibility of evidence are [generally] under the sound

discretion of the trial judge.” The State notes that Rule 15 of the Tennessee Rules of

Criminal Procedure controls the taking of depositions and asserts that “Dr. Scheuerman’s

deposition was taken prior to trial, without objection, and played at trial, without

objection.” The State asserts that, “if Dr. Scheuerman [was] testifying live, the lights in

the courtroom would have been dimmed, and the jurors still would not have seen [his] face,

but would have instead focused on the exhibits.” The State also notes that Dr. Scheuerman

was an expert witness presenting his findings based on his investigation, not an eyewitness.

The State acknowledges that the “trial court found that case law allowed such a procedure

so long as the [D]efendant and counsel had the opportunity to confront and cross-examine

Dr. Scheuerman.” It asserts that the trial court did not abuse its discretion in admitting this

deposition, and, even so, any error in its admission was harmless.

Tennessee Rule of Criminal Procedure 15 governs the taking of depositions:

A party may move that a prospective witness be deposed in order to preserve

testimony for trial. Any such motion may be filed at any time after the

defendant’s initial appearance before a magistrate and after the defendant has

been afforded counsel. Such motion shall be filed in a court of record. The

Court may:

(A) grant the motion because of exceptional circumstances and

in the interest of justice; and

(B) order that the witness produce at the deposition any

designated, non-privileged book, paper, document, record,

recording, or other material.

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Additionally, Tennessee Rule of Criminal Procedure 15(f) allows depositions to be used as

substantive evidence if the witness is unavailable. Prior to trial, the State moved the trial

court, pursuant to TRCP 15, to order the video deposition of Dr. Scheuerman because he

was unavailable to testify at the Defendant’s trial. According to the record, the Defendant

did not object to this motion, and Dr. Scheuerman’s deposition was taken on February 22,

2018, while the Defendant and trial counsel were present. While Dr. Scheuerman was

identifying autopsy photographs taken of the victim, the State displayed these images on

the screen, while Dr. Scheuerman described them. During this time, which lasted

approximately one hour, the jury could only see the photographs and not Dr. Scheuerman’s

face. At this point during the trial, while the video was playing, defense counsel objected

based on the fact that the jury could not see Dr. Scheuerman to judge his credibility while

the images were being displayed on the screen, which the trial court overruled.

In denying relief at the Defendant’s motion for new trial, the trial court determined

as follows:

With Dr. Scheuerman, the [f]orensic [p]athologist in the case, no

illness on his part, but the Court can’t recall, but it was some reason that he

could not be here at that time. I’m not sure if it was a trip that he had planned

and prepaid. . .

His daughter’s graduation from college I think is correct. So the Court

allowed that, again, video-taped evidence or video-tape recording equipment

was set up. The evidence was taken by way of direct examination, cross

examination by [defense counsel]. That’s an impressive argument, [defense

counsel], about what was shown on the screen as you stated. The Court is

amazed we even have video equipment available to do this but we were able

to do that. But it was such that it was one camera, so as the witness testified

about a picture, a picture was placed on the screen and that’s what the jury

saw while the witness testified. The State’s argument, and the Court thinks

it’s a good one, is that when things are placed upon the wall here on the

projector or the lights are turned down, that is where the jurors’ attention is

directed to begin with. So it is true that the jury could not see Dr.

Scheuerman’s face while he was talking about what was on the screen, but

as soon as the next exhibit came up, the camera went back to Dr. Scheuerman

for purposes of testimony and then back to another exhibit. The Court finds

that the case law allows such a procedure. Case law allows video-recorded

testimony so long as the defendant and counsel has the opportunity to

confront and cross examine that particular witness. The Court ensured that

[the Defendant], despite his objection, who did not want to be here for those,

was ordered to be here. [Defense counsel] had the opportunity to do that and

the jury had the opportunity to view this, and while they may not have seen

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Dr. Scheuerman’s face, when an exhibit would have been there, they had

ample opportunity to view Dr. Scheuerman on the video as well as the

exhibits. So the Court finds that those Grounds Three (3) and Four (4) are

respectfully denied regarding the Motion for New Trial.

“Generally, the admissibility of evidence rests within the trial court’s sound

discretion, and the appellate court does not interfere with the exercise of that discretion

unless a clear abuse appears on the face of the record.” State v. Franklin, 308 S.W.3d 799,

809 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007)). A trial court

is found to have abused 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.’” Lewis, 235 S.W.3d at 141 (quoting State v. Ruiz, 204 S.W.3d 772, 778

(Tenn. 2006).

“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.” Tenn. R. Evid. 403. Unfair prejudice has been defined by the

Tennessee Supreme Court as “‘[a]n undue tendency to suggest decision on an improper

basis, commonly, though not necessarily an emotional one.’” State v. Banks, 564 S.W.2d

947, 951 (Tenn. 1978) (quoting Fed. R. Evid. 403, Advisory Committee Notes). “Prejudice

becomes unfair when the primary purpose of the evidence at issue is to elicit emotions of

‘bias, sympathy, hatred, contempt, retribution, or horror.” State v. Young, 196 S.W.3d 85,

106 (Tenn. 2006) (citations and internal quotation marks omitted). The Sixth Amendment

to the United States Constitution gives an accused the right “to be confronted with the

witnesses against him,” and this right is given to the States through the Fourteenth

Amendment. In addition, the Tennessee Constitution also gives an accused the right “to

meet the witnesses face to face.”

As we understand his claim, the Defendant seeks to require the State to show the

face of a witness, Dr. Scheuerman, simultaneously with the viewing of photographs

pertaining to their testimony. However, the Defendant candidly acknowledges that reliance

on State v. Jenkins, 845 S.W.2d 787, 793 (Tenn. Crim. App. 1992) for the proposition that

the trial court erred in allowing these images to be displayed in lieu of Dr. Scheuerman’s

face is misplaced. He has not provided any other authority in support of this issue, and we

decline to control a party’s case in the courtroom in the fashion the Defendant seeks.

Accordingly, we conclude that the display of autopsy photographs in lieu of Dr.

Scheuerman’s face was not unfairly prejudicial to the Defendant, and his rights under the

due process clause were not violated because he and trial counsel were present at Dr.

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Scheuerman’s deposition and allowed to cross-examine him. We agree with the trial

court’s reasoning that, even if Dr. Scheuerman was testifying in front of the jury, the lights

in the courtroom would likely be dimmed and the jury’s attention would be focused on the

images instead of the witness’s face. As such, we conclude that the trial court did not abuse

its discretion in allowing the video deposition of Dr. Scheuerman to be entered into

evidence, despite the jury’s inability to see the witness’s face for a large portion of the

deposition. He is not entitled to relief on this issue.

III. Sufficiency of the Evidence. Next, the Defendant argues that the evidence is

insufficient to support his convictions for first-degree felony murder and robbery. He

asserts that his testimony rebuts the State’s assertions that he “entered the victim’s dwelling

with [co-defendant Garland] on the evening of the murder and participated in the robbery.”

He states that his “‘non-entry’ cannot be disproven by the [S]tate by any physical evidence

or eyewitness testimony” and that “the State’s theory of the case rests on the presumption

that not only did the [Defendant] enter her apartment, he engaged in numerous physical

acts which would have left his DNA, hair, and fingerprints all over the apartment.” He

asserts, “[e]xcluding the statements of the [Defendant] to law enforcement and purportedly

to inmate Derek Bailey, the State’s entire case is based on circumstantial evidence

requiring the trier of fact to make inferences of guilt based upon the [Defendant’s] use of

the victim’s debit and gift cards after her death.” He states that he acknowledged and

explained this during his testimony, and he asserts that Dr. Scheuermman’s testimony

supports his explanation. The State responds that the evidence is sufficient to support the

Defendant’s convictions because there was evidence that the Defendant intended to rob the

victim. The State contends, “[t]he jury could reasonably infer from the [D]efendant’s

actions before, during, and after the killing, that not only did he intend to rob the victim,

but he benefitted from the proceeds of the robbery.” The State asserts that, even if the

Defendant did not enter the victim’s apartment, he is guilty under a theory of criminal

responsibility. We agree with the State that the evidence is sufficient to support the

Defendant’s convictions.

“Because a verdict of guilt removes the presumption of innocence and raises a

presumption of guilt, the criminal defendant bears the burden on appeal of showing that

the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279

S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)).

“Appellate courts evaluating the sufficiency of the convicting evidence must determine

‘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.’” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn. R. App. P. 13(e). When this court

evaluates the sufficiency of the evidence on appeal, the State is entitled to the strongest

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

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evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing State v. Majors, 318

S.W.3d 850, 857 (Tenn. 2010)).

Guilt may be found beyond a reasonable doubt where there is direct evidence,

circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686, 691

(Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). The standard of review for

sufficiency of the evidence “‘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)). The jury as the trier of fact must

evaluate the credibility of the witnesses, determine the weight given to witnesses’

testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331,

335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)).

Moreover, the jury determines the weight to be given to circumstantial evidence, and the

inferences to be drawn from this evidence, and the extent to which the circumstances are

consistent with guilt and inconsistent with innocence, are questions primarily for the jury.

Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)).

When considering the sufficiency of the evidence, this court “neither re-weighs the

evidence nor substitutes its inferences for those drawn by the jury.” Wagner, 382 S.W.3d

at 297 (citing State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)).

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

the perpetration of or attempt to perpetrate any ... robbery[.]” Tenn. Code Ann. § 39-13-

202(a)(2) (Supp. 2011). No culpable mental state is required for conviction of felony

murder except the intent to commit the underlying felony. Id. § 39-13-202(b) (Supp.

2011). Robbery is defined as “the intentional or knowing theft of property from the person

of another by violence or putting the person in fear.” Id. § 39-13-401(a). “A person is

criminally responsible as a party to an offense, if the offense is committed by the person's

own conduct, by the conduct of another for which the person is criminally responsible, or

by both.” Tenn. Code Ann. § 39-11-401. A person is criminally responsible for an offense

committed by the conduct of another, if: (2) “Acting with intent to promote or assist the

commission of the offense, or to benefit in the proceeds or results of the offense, the person

solicits, directs, aids, or attempts to aid another person to commit the offense.” Tenn. Code

Ann. § 39-11-402.

Viewing the evidence in the light most favorable to the State, the Defendant and co-

defendant Garland reconnected a few days before the victim’s death and shared an intimate

relationship. A few days prior to the victim’s death, co-defendant Garland brought the

Defendant to the victim’s house because the victim was going to give co-defendant Garland

“money and pills.” The co-defendant told the Defendant to “act straight” when they were

in the victim’s apartment, and the Defendant waited on the victim’s couch until she told

him and co-defendant Garland to leave. They returned to the victim’s apartment a few

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days later after co-defendant Garland told the Defendant that the victim would give them

money for doing “odd jobs” around her house.

Based on the proof, the men entered the victim’s apartment in the late night hours

of August 17, 2015, killed her, and ransacked her apartment, taking money, the victim’s

debit card, and a Wal-Mart gift card given to the victim by her sister. The forensic

pathologist testified that the victim’s cause of death was “suffocation, blunt force injuries,

and possible manual strangulation.” The victim was found the next morning on the floor

of her living room with a blanket and pillow covering her face and her couch resting atop

one of her legs. She also had bruising on her arms, legs, face, and neck, which her neighbor

said were not present prior to that night. The victim’s apartment was also in an unusual

state of disarray. Over the next few days, the victim’s debit card and Wal-Mart gift card

were used several times, including purchases at Wal-Mart, McDonald’s, Cabbie Cab,

Shoney’s, Greyhound, Kroger, Exxon, and KFC, some of which were declined after the

victim’s family cancelled her card. The State introduced receipts from several of these

purchases, and video surveillance showed the Defendant and co-defendant Garland making

purchases at McDonald’s with the victim’s card. The Defendant was arrested with the

victim’s cards on his person. Additionally, during the Defendant’s interview, he told

Investigator Adams, “I played my part[,]” “I take full responsibility[,]” and that his DNA

would be found on the victim’s pillow. An inmate housed with the Defendant also testified

that the Defendant confessed to him that he and co-defendant Garland had entered the

victim’s apartment, held her down, and took turns holding a pillow on her face while the

other searched the victim’s apartment. The Defendant also told his cell-mate that “the only

reason he noticed [the victim] died is because she defecated on herself.” The jury heard

the Defendant’s version of events and, by its verdict, discredited him and weighed the

evidence in favor of the State. See State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008);

State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997) (holding that “[q]uestions involving the

credibility of witnesses, the weight and value of the evidence, and all factual disputes raised

by the evidence are entrusted to the trier of fact.”) Accordingly, the evidence is sufficient

to support the Defendant’s convictions for felony murder and robbery. He is not entitled

to relief on this issue.

IV. Cumulative Error. The Defendant argues, and the State disagrees, that he is

entitled to relief under the cumulative error doctrine. The cumulative error doctrine

provides, in short, as follows:

The cumulative error doctrine is a judicial recognition that there may be

multiple errors committed in trial proceedings, each of which in isolation

constitutes mere harmless error, but which when aggregated, have a

cumulative effect on the proceedings so great as to require reversal in order

to preserve a defendant’s right to a fair trial.

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State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010) (citations omitted). Because we have

determined that the trial court did not err on any of the Defendant’s aforementioned issues,

we need not consider the cumulative effect of the alleged errors. Hester, 324 S.W.3d at 77

(“To warrant assessment under the cumulative error doctrine, there must have been more

than one actual error committed in the trial proceedings.”).

CONCLUSION

Based on the preceding authority and analysis, we affirm the judgments of the trial

court.

____________________________________

CAMILLE R. MCMULLEN, JUDGE

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