State of Tennessee v. Michael Rimmer

04/16/2021

IN THE SUPREME COURT OF TENNESSEE

November 4, 2020 Session1

STATE OF TENNESSEE v. MICHAEL RIMMER

Automatic Appeal from the Court of Criminal Appeals

Criminal Court for Shelby County

Nos. 98-01033, 98-01034 Chris Craft, Judge

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No. W2017-00504-SC-DDT-DD

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This is a direct appeal in a capital case. The defendant had one prior trial. In the second

trial, a Shelby County jury found the defendant guilty of first degree premeditated murder,

murder in the perpetration of robbery, and aggravated robbery. He was sentenced to death

plus a consecutive eighteen years of incarceration. The Court of Criminal Appeals

affirmed the convictions and the sentence. We now consider the appeal on automatic

review pursuant to Tennessee Code Annotated section 39-13-206(a)(1). We hold the

following: (1) based on sequential jury instructions given in the first trial, the first jury did

not have a full opportunity to consider the felony murder count, so double jeopardy

principles did not bar retrial on the felony murder count; (2) alleged prosecutorial

misconduct in the first trial did not trigger double jeopardy protections and did not bar

retrial of the defendant; (3) because the State did not have a duty to preserve the defendant’s

vehicle, the trial court did not err in denying the defendant’s motion to suppress DNA

evidence from the vehicle; (4) the trial court did not err under Tennessee Rule of Evidence

404(b) in admitting evidence of the defendant’s prior convictions for rape and assault of

the victim; and (5) the trial court did not err under Rule 404(b) in admitting evidence of

the defendant’s escape attempts and corroborating evidence of homemade shanks in his

cell. We hold further that imposition of the death penalty is not arbitrary, given the

circumstances of the crime; that the evidence supports the jury’s finding that the State

proved one aggravating circumstance beyond a reasonable doubt; that the evidence

supports the jury’s conclusion that the aggravating circumstance outweighed any

mitigating circumstances beyond a reasonable doubt; and that the sentence of death is

neither excessive nor disproportionate to the penalty imposed in similar cases. As to the

remaining issues raised by the defendant, we agree with the conclusions of the Court of

Criminal Appeals and attach as an appendix to this opinion the relevant portions of the

intermediate court’s decision. We affirm the convictions and the sentence.

1

We heard oral argument through videoconference under this Court’s emergency orders restricting

court proceedings because of the COVID-19 pandemic.

Tenn. Code Ann. § 39-13-206(a)(1) (2018) Appeal; Judgment of the

Court of Criminal Appeals Affirmed

HOLLY KIRBY, J., delivered the opinion of the court, in which JEFFREY S. BIVINS, C.J.,

CORNELIA A. CLARK, and ROGER A. PAGE, JJ., joined. SHARON G. LEE, J., filed a

concurring opinion.

Paul Bruno (on appeal and at trial), Murfreesboro, Tennessee, and Robert Parris (on appeal

and at trial), Memphis, Tennessee, for the appellant, Michael Dale Rimmer.

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

General; Andrew C. Coulam, Senior Counsel; Pamela Anderson and Rachel Sobrero,

District Attorneys General Pro Tem, for the appellee, State of Tennessee.

Michael J. Passino, Nashville, Tennessee, for Amicus Curiae Amnesty International,

Nashville.

OPINION

FACTUAL AND PROCEDURAL HISTORY

On February 8, 1997, the victim in this case, Ricci Lynn Ellsworth, disappeared

from the Memphis Inn in Shelby County. She left behind her purse, her wedding band, her

car, and a chaotic and bloody crime scene. Although the victim was a dependable

employee and devoted wife, grandmother, mother, and daughter, neither her employer nor

her family ever heard from her again. The victim’s body was never located, and she is

presumed dead.

The lengthy procedural history in this case includes two trials and three sentencing

hearings. At the first trial in 1998, a jury convicted the Defendant, Michael Dale Rimmer,

of first degree murder, aggravated robbery, and theft of property. The Defendant received

a sentence of death. The State had also charged the Defendant with first degree felony

murder during the perpetration of a robbery (felony murder), but the jury did not return a

verdict on that count.

On appeal, the Court of Criminal Appeals affirmed the convictions, but it reversed

the death sentence due to numerous errors related to the aggravating circumstances

considered by the jury. It remanded the case for a new sentencing hearing. See State v.

Rimmer, No. W1999-00637-CCA-R3-DD, 2001 WL 567960, at *23 (Tenn. Crim. App.

May 25, 2001).

-2-

On remand, a second jury imposed the death penalty. On direct appeal, the Court

of Criminal Appeals affirmed the sentence. State v. Rimmer, No. W2004-02240-CCA-R3-

DD, 2006 WL 3731206, at *28 (Tenn. Crim. App. Dec. 15, 2006), perm. app. granted,

(Tenn. Aug. 13, 2007). This Court affirmed the sentence as well. See State v. Rimmer,

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

The Defendant then sought post-conviction relief, alleging ineffective assistance of

counsel and prosecutorial misconduct. The post-conviction trial court concluded the

Defendant was not entitled to relief on his claims of prosecutorial misconduct. However,

it granted post-conviction relief on the ineffective assistance of counsel claims and ordered

a new trial and sentencing hearing. The State did not appeal.

In advance of the Defendant’s second trial, he filed a number of pretrial motions.

They included a motion to dismiss the felony murder count, which the trial court denied; a

motion to suppress DNA evidence, which the trial court partially denied; and a motion to

suppress Rule 404(b) evidence, which the trial court partially denied.

The second trial commenced on April 28, 2016.2 The jury heard evidence that, years

earlier, the Defendant and the victim had been in a tumultuous romantic relationship.

Though it ended, they remained in contact. In 1989, the Defendant assaulted and raped the

victim inside her home. He eventually pled guilty to burglary in the first degree, aggravated

assault, and rape. He received a lengthy prison sentence. According to the victim’s

daughter, Tracye Ellsworth Brown,3 and the victim’s mother, Marjorie Floyd, the victim

was too forgiving toward the Defendant after the rape. She continued to interact with him

and even visited him in prison.

During his incarceration for rape and assault of the victim, the Defendant met

William Conaley. Mr. Conaley was a childhood friend of the victim’s niece. The

Defendant learned the victim and her son had received a sum of money in settlement of a

personal injury claim. The Defendant was angry at the victim and felt entitled to a portion

of the settlement. The Defendant told Mr. Conaley to tell the victim’s niece to let the victim

know that if he, the Defendant, did not get the settlement money to which he felt entitled,

he would kill the victim upon his release from prison. Mr. Conaley relayed the message

by letter and in person. According to Mr. Conaley, whenever the Defendant talked about

the victim, he would get agitated, sweat, work himself up, wring his hands, and saliva

would build up in the corners of his mouth.

2

The facts and evidence summarized in this opinion are from the April 2016 trial.

3

The victim’s daughter is also referred to in the record as Tracye Ellsworth, and at times her first

name is spelled “Tracy” or “Tracey.”

-3-

During this same incarceration, the Defendant also met Roger Lescure. In 1996,

while he and Mr. Lescure were working together in the prison, the Defendant talked to Mr.

Lescure about the victim and said he was going to “kill the funky bitch” after his release.

The Defendant described to Mr. Lescure how to get rid of dead bodies: “Put them in a

barrel and put lime in them, it eats the bones and all up.” Mr. Lescure said that, when the

Defendant talked about killing the victim, he got “high strung” and “into talking about it”

and would “sort of foam at the mouth.”

After he was released from prison, the Defendant and the victim continued to

interact. One afternoon, the Defendant’s father came home from work to find the

Defendant changing the oil in the victim’s vehicle. The Defendant’s father got angry that

the Defendant was maintaining a relationship with the victim because he felt it would lead

to more problems.

In 1997, the Defendant worked at Ace Automotive Collision Center4 with Howard

Featherston5 and James Wilcox. During that time, he commonly wore a baseball cap.

According to Mr. Featherston, the Defendant also had a tattoo on his arm.6 In addition to

working with Mr. Featherston at the collision center, the Defendant worked on vehicles

with Mr. Featherston at Mr. Featherston’s home. At the time, Mr. Featherston owned a

maroon Honda Accord. On January 4, 1997, the Accord was driven away from Mr.

Featherston’s home and was never returned.7

On Friday, February 7, 1997, the Defendant did not have enough money for gas.

His coworker at the Collision Center, Mr. Wilcox, followed the Defendant to the gas station

and put five dollars’ worth of gas in his car so the Defendant could cash his February 6,

1997 paycheck. On that day, Mr. Wilcox recalled, the Defendant was driving a maroon

Honda. He expected the Defendant to repay him the five dollars when he came to work

the following Monday, since the Defendant was scheduled to work the week of February

10. However, the Defendant never returned to the Collision Center, not even to pick up

his paycheck for the shift he worked on February 7.

4

At trial, the Defendant’s prior employer was also referred to as Adesa.

5

The last name of Howard and Cheryl Featherston is at times referred to in the record as

“Featherstone.”

6

The Defendant revealed tattoo-free arms to the jury at trial.

7

In addition to the charges at issue, the grand jury indicted the Defendant for theft of Mr.

Featherston’s maroon Honda. This charge was originally consolidated with the Defendant’s indictments

for aggravated robbery and first degree murder. Prior to the second trial, on the Defendant’s motion, the

trial court severed the theft charge, so the jury in the second trial did not hear proof related to it.

-4-

Also on Friday February 7, after he left work at the Collision Center, the Defendant

went to the home of his brother, Richard Rimmer, in Mississippi. He drank some beer and

talked about a date he had planned later that night.

The same night, the victim left the home she shared with her husband, Donald

Eugene Ellsworth,8 for her work as a night clerk at the Memphis Inn. She was scheduled

to work from 11:00 p.m. to 7:00 a.m. The victim parked her vehicle in the motel parking

lot and began her shift, working in an enclosed office in the motel lobby behind a locked

door. Her interactions with guests were from behind protective glass, and monetary

transactions occurred via a drawer under the glass window; money and credit cards were

placed in the drawer and slid under the glass. In the same vicinity, the motel had change

and vending machines.

Devata Brown was a guest at the Memphis Inn the night of February 7, 1997. She

described the motel as being in a “high traffic” location where drug dealing and prostitution

may have occurred.

Around 1:40 a.m. that same night, another motel guest, Dr. Ronald King, went to

the vending machine area. He noticed a maroon car pull up and park close to the night

entrance. A white man wearing a baseball cap with a scraggly beard and unkempt hair

walked into the area behind him and approached the motel’s check-in area. The night clerk

appeared to know this individual and walked to the night entrance door toward him. Once

Dr. King finished getting his snacks from the vending machine, he nodded to the desk clerk

and left.

Another guest at the Memphis Inn the evening of February 7, Natalie Doonan, came

downstairs to buy cigarettes from a vending machine. She noticed a female night clerk

working at a counter behind glass. Around 2 a.m., one or two men walked into the motel

lobby where the night clerk’s office was located; one of the men had a dark complexion

and wore his hair in a ponytail. Ms. Doonan finished buying her cigarettes and went back

to her room. About thirty minutes later, Ms. Doonan called the night clerk to request a

wake-up call. She let the phone ring for ten to fifteen minutes but never got an answer.

Ms. Doonan later identified one of the men she saw in the motel lobby as Billy Wayne

Voyles.

Around 1:30 or 2:00 a.m. that same night, James Darnell and Dixie Presley drove

to the Memphis Inn. Mr. Darnell parked close to the night entrance. He saw a man with a

beard and wearing a baseball cap standing behind a maroon Honda parked about four

spaces away. In his arms, the man cradled something thick that had been rolled up in a

8

The trial transcript identifies the husband as “Eugene Donald Ellsworth,” but he states in his

testimony that his name is Donald Eugene Ellsworth.

-5-

blanket. When the man placed the item in the trunk of the car, the vehicle sank from the

weight of the object.

As Mr. Darnell walked toward the night entrance, the man began walking quickly

behind him. They approached the night entrance at the same time, so Mr. Darnell opened

the door, said “after you,” and let the man go through the door first. As he did, Mr. Darnell

noticed the man smelled like alcohol and had blood on his hands. Mr. Darnell walked in

behind the man and saw the night clerk’s door wide open. As Mr. Darnell walked toward

the night clerk’s window, he saw another man standing on the other side of the glass

pushing cash out through the drawer under the window. The other man also had blood on

his hands. Mr. Darnell quickly turned around and left.

Mr. Darnell later identified a photo of Billy Wayne Voyles as one of the men at the

Memphis Inn that night. Mr. Darnell could not positively identify the Defendant’s photo

from a photo lineup.

During that time, Raymond Summers was a yard master with CSX Transportation

(“CSX”). Under an agreement between CSX and the Memphis Inn, CSX employees stayed

at the motel during layovers. Mr. Summers was working early the morning of February 8,

and the CSX crew staying at the motel was needed back at the train yard for departure. He

called the Memphis Inn night desk around 3:00 a.m. to get in touch with the crew members.

When the clerk did not answer, Mr. Summers drove to the motel.

When he arrived, Mr. Summers saw that the night entrance double doors, typically

closed and locked, were open. He walked into the office and noticed the register drawer

was out and papers were scattered on the floor. He called out and got no answer. He then

walked toward the sound of running water. As he went into the employee bathroom, Mr.

Summers saw water running in the bathroom sink, blood on the sink basin, and that the

toilet seat had been removed. There was blood on the toilet and a bloody towel on the

floor.

Mr. Summers left immediately to find help. As he was driving to a nearby service

station to notify the police, he saw two Shelby County Sheriff’s Office (“SCSO”) patrol

cars leaving a nearby parking lot. He got the officers’ attention and told them something

strange had happened at the Memphis Inn. They went to the scene.

When they arrived at the motel, the SCSO officers secured the scene and contacted

Memphis Police Department (“MPD”) dispatch. SCSO officers then notified the motel

manager, Linda Spencer, that there was no night clerk at the motel. Ms. Spencer resided

in an apartment on the property. She walked to the front of the motel and noticed the night

entrance door, normally locked, was open. She went into the employee bathroom and saw

-6-

blood all over the floor and walls. The toilet lid had been ripped from the toilet. There

was an out-of-place glass on the sink, a flashlight in the sink, and a crack in the sink. Once

MPD officers arrived, the SCSO officers left.

Ms. Spencer and the MPD officers looked for the victim inside the motel, to no

avail. The victim’s car, however, was still parked in the same spot in the parking lot where

it had been all night. Ms. Spencer noticed that all the money had been taken from the

register, as well as the money in the lockbox. In total, about $600 was missing. There was

blood on the floor of the office and a trail of blood leading from the office to the bathroom.

There was a towel on the office floor that did not belong there, and about four or five sets

of sheets were missing from a cabinet in the office. The motel office had a security camera,

but because there was no videotape in it, Ms. Spencer did not check to see if anyone had

tampered with it.

MPD officers took photographs of the crime scene, dusted for fingerprints, collected

and tagged evidence, and completed paperwork. The items they collected included the

victim’s wedding band, which she normally wore every day. All items with blood on them

were gathered as evidence. Samples were taken from blood on the bathroom floor, the top

of the commode, the frame of the door to the snack room, the frame of the door to the west

exit, and the door facing the security window. The lid of the toilet was covered in blood

and damaged as though it had been used to beat somebody; the toilet lid and a few other

items were chemically processed for fingerprints.

Mark Goforth worked as a security guard at the neighboring Super 8 Motel. Like

Ms. Brown, Mr. Goforth described the Memphis Inn as a place known for prostitution and

drugs. In his work as a security guard, Mr. Goforth often walked the perimeter of the Super

8 property, and in doing so he had gotten to know the victim. Working early the morning

of February 8, Mr. Goforth saw MPD officers at the Memphis Inn, so he walked over to

the motel. Once he got there, he observed a lot of blood, including a bloody handprint on

the counter. Mr. Goforth briefly spoke with the officers and left.

While working at the Super 8 Motel, Mr. Goforth sometimes saw a white man in

his early thirties with brownish-blonde hair and stubble at the Memphis Inn talking and

laughing with the victim inside her office. He last saw the man a couple days before the

victim’s disappearance.

Mr. Goforth was shown a composite sketch of two suspects, one wearing a baseball

hat and one without a hat. Mr. Goforth identified the man in the hat as a construction

worker who frequently stayed at the Memphis Inn while in town to work on a nearby

highway construction project.

-7-

Around 2:30 a.m. the night of the victim’s disappearance, MPD officers went to the

victim’s home and awakened her husband, Donald Eugene Ellsworth, to see if the victim

was there. He told them he had not seen the victim since she left for work earlier that night,

so the officers asked him to give a statement. Mr. Ellsworth then accompanied the officers

first to the crime scene, where he stayed in the patrol car, and then to the station. While at

the crime scene, he noticed the victim’s car in the parking lot.

The morning of February 8, the Defendant returned to the home of his brother,

Richard Rimmer. He was driving a wine-colored Honda Accord.9 The brother’s home

was in a wooded area, close to a pond. When he arrived, the Defendant was wearing muddy

white tennis shoes; Richard Rimmer made him remove the shoes and wash them in the

bathroom. The Defendant seemed tired and unfocused, “like he was out in left field.” The

Defendant asked his brother Richard if he could lay on his floor to rest; Richard said no

and asked him to leave.

The Defendant’s brother Richard worked as a carpet and upholstery cleaner. The

Defendant asked his brother to clean the interior of the Honda, including mud on the

floorboard and blood in the backseat. The Defendant explained the blood resulted from

his having had sex in the backseat with a woman who was menstruating. Richard Rimmer

looked inside the car and thought part of the back seat looked dark, like there could have

been a bloodstain. He noticed mud in the car and a new-looking shovel on the rear

floorboard. When the Defendant left his brother’s house, he left the shovel leaning against

the house.

That night, Richard Rimmer saw news reports on the victim’s disappearance. He

recalled the condition of the Defendant’s car and panicked because he suspected his brother

was involved. At the suggestion of their father, Richard Rimmer put a towel on the handle

of the shovel the Defendant had left and disposed of it in a nearby dumpster.

Law enforcement investigation never yielded any indication the victim was still

alive. Officers conducted at least twenty searches for the victim in the vicinity of the

property rented by the Defendant’s brother, in Mississippi around Plantation Point, near

Arkabutla Lake, and in Arkabutla Lake itself. Her body was never found.

Mary Ann Whitlock also saw news reports about the disappearance of the victim,

and she saw the same composite sketches Mr. Goforth was shown. She recognized the

9

Several weeks earlier, the Defendant told his brother that the victim bought the Honda for him

but did not want her husband to know. At that time, the Defendant enlisted his brother to help him “pick

up” the car from the home of a Collision Center coworker who was supposedly storing it for the Defendant.

They pulled up to the coworker’s home with no lights on and took the car without going to the house,

purportedly so they would not “disturb” the coworker’s wife.

-8-

men as Billy Wayne Voyles and Raymond Cecil; Ms. Whitlock knew both because they

were all from the same small town. She identified Mr. Voyles as the suspect in the baseball

cap. She reported this information to law enforcement.

In early March, Michael Adams was working as a road deputy on traffic patrol in

Johnson County, Indiana. He stopped the Defendant for speeding. The Defendant was

driving a maroon Honda with a license plate that matched the plate on the maroon Honda

owned by Mr. Featherston. When he ran the plate numbers, the deputy realized the MPD

had an interest in the vehicle as part of an ongoing investigation. He contacted the Johnson

County Sheriff’s Office, and an officer and an evidence technician went to the scene. The

Defendant was taken into custody.

The Johnson County Sheriff’s Office contacted the MPD, and MPD detectives flew

into Indiana that night. In the meantime, the Johnson County evidence technician followed

a wrecker towing the Honda to the intake bay at the sheriff’s office and secured the vehicle

inside the bay.

The next morning, MPD detectives watched as the Johnson County evidence

technician processed the maroon Honda. The technician found reddish-brown stains in the

back seat of the vehicle. A presumptive blood test confirmed the substance on the back

seat was blood.

The evidence technician took ninety-six photographs of the vehicle and its contents.

The photographs included images of: the interior left driver’s side door; the right front

floorboard; the interior trunk lid; the contents of the trunk; the rear compartment of the

back seat; blood stains on the fabric upholstery in the back seat; a hole in the fabric

upholstery in the back seat cut to obtain a sample for use in the presumptive blood test; a

second hole in the fabric upholstery toward the bottom of the back seat, also cut for the

presumptive blood test; and a baggie and envelope containing the presumptive blood test.

The evidence technician also removed and inventoried the contents of the maroon

Honda. Each item removed was either sealed and stored in envelopes and paper bags or

placed in the trunk of the vehicle, which was sealed prior to transport to Memphis. The

individually secured items included: a white towel with red stains; three additional white

towels; various receipts from Mississippi, Florida, Missouri, Montana, Wyoming,

California, Arizona, and Texas dated February 8 through March 3, 1997; water; Holiday

Inn stationery and other miscellaneous papers; maps; duct tape with hair attached; a plastic

spray bottle; a glass jar; a pillow with blood spatter; a black baseball cap; a pair of Spalding

tennis shoes; faded blue jeans; and a steel hammer. All of these items were released to the

MPD detectives prior to their return to Memphis. The Johnson County Sheriff’s Office

also released the items on the Defendant’s person at the time of his arrest, including a men’s

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watch.

Once the search of the maroon Honda was completed, the vehicle was resealed.

Arrangements were made to transport the vehicle to Memphis. It was loaded onto a tow

truck, covered with a tarp, and driven to Memphis, where an MPD officer met the wrecker

and securely stored the vehicle in the MPD’s crime scene tunnel until it could be

transported to the Tennessee Bureau of Investigation (“TBI”) lab in Nashville.

The MPD detectives flew back to Memphis. They carried the individually sealed

items taken from the vehicle onto the plane and stored the evidence in the cockpit for the

duration of the flight. The evidence was then stored in the evidence room of the MPD

homicide office until it was transmitted to the TBI for DNA analysis.

A few days later, the MPD’s case coordinator asked the TBI to run a DNA

comparison of the blood samples collected from the hotel to those obtained from the

vehicle. The maroon Honda was also sent to the TBI lab in Nashville for processing. An

MPD detective supervised the transport of the vehicle by wrecker from Memphis to the

TBI lab in Nashville. At the same time, he transported the evidence previously taken from

the vehicle to the TBI for testing. When he arrived, the detective signed over the vehicle

and the box of evidence to the TBI experts. He asked them to vacuum the vehicle and

collect hair and fiber samples to be sent to the FBI. In addition to the maroon Honda, the

evidence deposited with the TBI included the following items collected from the vehicle

and the Defendant’s person after the stop in Indiana: a blood-soaked patch of upholstery

cut from the back seat of the vehicle; a swab of blood from the back seat of the vehicle; a

pair of K-Swiss tennis shoes; a pair of faded blue jeans; a steel hammer; a pillow with

blood spatter; a white towel with blood spatter; a white towel with stains; a roll of duct tape

with hair on it; a plastic spray bottle with clear liquid contents; a glass jar; and a men’s

watch with stains.

After the Honda arrived at the TBI, agents processed it for microanalysis. In doing

so, an agent took photographs, inventoried the contents of the vehicle, vacuumed the

vehicle to collect any hair or fiber, and took samples of the seats and carpets. At that point,

the agent did not analyze any hair or fibers because she did not have anything to compare

to them. Instead, she preserved the evidence collected so a comparison could be done later

if needed.

Another TBI agent tested the items in the two sealed boxes received from the MPD

for the presence of blood. The towels from the crime scene and a pillow in the maroon

Honda both tested positive for the presence of human blood. The test for blood was

negative as to the hammer, another towel in the vehicle, and the watch.

- 10 -

The TBI agent also conducted a serological analysis on the maroon Honda. She

inspected the vehicle for blood stains, took photographs of the stains, tested the stains for

the presence of blood, and then cut samples or swabbed the areas so she could conduct a

human blood confirmation test. The agent also made four sketches of the interior of the

vehicle to document her findings. The buckle on the back-seat passenger-side seatbelt

tested positive for the presence of human blood. The inside of the rear driver-side door

had stains that tested positive for the possible presence of blood, but the agent did not

remember conducting a follow-up test to determine whether it was human blood. The

center back seatbelt buckle tested positive for the possible presence of blood, but the agent

did not conduct a follow-up test to determine whether it was human blood. The back seat

of the vehicle had blood stains, so the agent cut a large square of upholstery from the center

of the back seat; it tested positive for the presence of human blood. The agent

memorialized her findings in a report.

Once the analysis was complete, MPD released the maroon Honda to Mr.

Featherston because the police department did not have the storage capacity to keep it

longer. Mr. Featherston viewed it at the impound lot and saw that the liner inside the trunk

was missing, the floor mats were missing, and there were stains in the back of the car. The

items found in the car when the Defendant was pulled over in Indiana did not belong to

Mr. Featherston. When the vehicle was in his possession, Mr. Featherston said, it was clean

and did not have stains on the upholstery.

From the evidence taken from the maroon Honda and collected at the crime scene,

an FBI forensic examiner determined the DNA of the blood at the crime scene matched the

blood found inside the vehicle. The forensic examiner also compared the DNA from the

blood collected at the scene and from the vehicle to the DNA of the victim’s mother,

Marjorie Floyd. The examiner determined the blood was consistent with belonging to a

daughter of Ms. Floyd. The DNA type from the blood on the towel collected from the

scene matched the DNA type extracted from the victim’s pap smear sample. To obtain

DNA samples from the victim, investigators collected the victim’s toothbrush, sweatpants,

and makeup sponge from her home. The DNA extracted from these items was consistent

with the DNA from the blood at the motel and inside the maroon Honda.

After his arrest for the murder of the victim, the Defendant participated in at least

three escape attempts. The Defendant was initially incarcerated in Franklin, Indiana.

While there, he shared a cell with James Douglas Allard, Jr. and told Mr. Allard about his

various plans to escape the jail. By the time the Defendant approached Mr. Allard about

escape plans, the Defendant had taken concrete steps toward attempting escape by cutting

clips along the bottom of the fence in the prison recreation yard with large nail clippers so

the fence could be lifted away from the ground. The Defendant also talked with Mr. Allard

about escaping through a window, escaping through the block wall inside the cell, killing

- 11 -

a guard, or taking a guard hostage and walking out the front door of the jail.10 According

to Mr. Allard, the Defendant kept “shanks,” homemade knives made of flattened bucket

handles, in his cell. Authorities later found shanks hidden in the Defendant’s cell.

Initially, Mr. Allard did not want to hear anything about the Defendant’s plans for

escape. Over the course of several weeks, in an apparent attempt to gain Mr. Allard’s

confidence, the Defendant talked to him a number of times about how he had murdered the

victim. The Defendant told Mr. Allard he murdered his “wife” at the motel where she was

employed. At one point, he told Mr. Allard he shot the victim twice; then he said he beat

her in a back room in the motel behind the service desk. The Defendant described the back

room as “pretty bloody” after the beating. The Defendant told Mr. Allard he took the

motel’s security camera tape, erased it, put the victim’s body in his car, and buried her in

a wooded area close to a lake or pond. Later, when the Defendant received a letter

informing him of the MPD’s search for the body, he told Mr. Allard he could not believe

the body had not been located.

During his conversations about the victim’s murder, Mr. Allard said, the

Defendant’s countenance changed. He became a “different person” from his everyday

demeanor. His eyes got “real shiny,” he started sweating a lot, and he frequently went to

the sink to wash his hands.

On October 23, 1997, while awaiting his first trial for murdering the victim, the

Defendant made a second attempt to escape incarceration. The Defendant was one of four

prisoners being transported in a federal prisoner transport van. All the prisoners were held

in cages inside the van. When the drivers stopped to eat lunch, they left the keys in the

ignition, the engine running, and a loaded shotgun inside the van. The Defendant managed

to get out of his cage. He released the other inmates and drove off in the van.

Officers with the Bowling Green, Ohio police department spotted the prisoner

transport van. They initiated a traffic stop, but the Defendant did not stop. A high-speed

chase ensued. For approximately thirteen miles, during rush hour, officers from several

jurisdictions pursued the Defendant, driving at speeds that sometimes reached ninety miles

an hour. Eventually, a road block forced the Defendant to stop. Officers ordered the driver

out of the van over a loudspeaker. After a couple of minutes, the Defendant exited the van

and was taken into custody.

10

While incarcerated in the Johnson County Jail, the Defendant reported subpar jail conditions to

the American Civil Liberties Union of Indianapolis, Indiana, and eventually filed a related civil rights

lawsuit. At the trial in this case, the Defendant argued his attempt to escape the Johnson County Jail was

related to poor jail conditions.

- 12 -

The third escape attempt occurred on October 16, 1998, while the Defendant was

housed in the Shelby County Jail. The Defendant and another inmate used hard objects to

break the concrete around a second story window; they then removed the window and

dropped a handmade rope out the opening. When they realized a jail employee had spotted

them, the Defendant returned to his cell and pretended to be asleep. His cohort inmate

dove out the window opening.11

At trial, the State called Jerry Findley as an expert in blood stain pattern analysis.

To prepare his opinion, Mr. Findley reviewed the crime scene photographs taken on

February 8, 1997 by MPD officers. Based on the patterns of blood observed in the

photographs, Mr. Findley opined the victim sustained either five blows with blunt force or

four blows with a sharp object. Mr. Findley saw no evidence in the photographs that the

blood stains resulted from a gunshot; instead, he believed they arose from repeated hits

with a toilet lid, fist, or hammer. The photographs documented a large amount of blood,

consistent with blows to the head, face, and nose. He acknowledged that, without a body

to examine, he could not know the true placement and extent of the victim’s injuries.

The Defendant called two expert witnesses at trial. The first was Marilyn Miller,

Ph.D., an expert in crime scene investigation and reconstruction, forensic science and

serology, and blood spatter pattern analysis. Dr. Miller criticized the quality of the

photographs taken of the blood at the scene, including the lack of scale and the angle at

which they were taken. She said it was difficult to conduct an adequate blood spatter

analysis based on the images in the photographs. From those images, Dr. Miller said, she

could only opine that blood was shed and could not determine whether a death had

occurred. As a further complication, the blood was diluted with water in a possible attempt

to clean; this made it impossible for her to ascertain the quantity of blood present at the

scene. Dr. Miller agreed with Mr. Findley that there was no evidence the blood stains were

caused by a gunshot. Dr. Miller also agreed with Mr. Findley that the blood stains on the

walls of the bathroom could have resulted from either blunt or sharp force. Any object,

like a fist, the flashlight found in the bathroom, or the lid to the toilet, could have caused

blunt force injuries to the victim. Dr. Miller maintained there was no way to know whether

all of the blood came from the same source because not all of it was tested.

Dr. Miller also criticized the lack of security at the crime scene. There were sixteen

people present at the scene, she pointed out, which could have resulted in contamination.

Further, she said the MPD should have processed more of the high-touch areas, such as the

11

Around the same time, a local attorney, Robert Hutton, filed a lawsuit alleging unconstitutional

conditions in the Shelby County Jail due to gang violence. For purposes of injunctive relief, Shelby County

admitted the level of violence in the jail violated the Eighth Amendment. At the trial in this case, the

Defendant presented evidence of the lawsuit and the County’s subsequent admission in support of his

contention that this escape attempt was related to jail conditions.

- 13 -

cabinet, the purse, and the entrance and exit, for fingerprints. Lastly, Dr. Miller contended

the MPD should have used amino black or luminal12 to identify the presence of otherwise

hidden bodily fluids.

In addition, Dr. Miller found fault with the processing of the maroon Honda. She

testified she was never given the opportunity to see an unobstructed photograph of the back

seat of the vehicle taken while the bloodstains were fresh. She explained it would have

been helpful to her analysis to see the stains in their entirety. Looking at the hole in the

back seat where investigators cut the three-inch sample from the upholstery, Dr. Miller

pointed out that the blood did not soak into the foam under the upholstery. She said this

indicated weight was not placed on the bloodstain.

According to Dr. Miller, the MPD did not adequately test the trunk of the maroon

Honda for the presence of blood before it released the vehicle. The liner inside the lid of

the trunk had been removed, so it could not be examined. Dr. Miller also maintained that

all of the items in the car’s trunk should have been tested for blood, not just the few items

selected for processing. Also, given the amount of blood at the scene and the apparent

attempt to clean it, she thought there would have been blood in the front seat of the vehicle,

but there were no positive presumptive tests for any blood on the surfaces she tested in the

front area.

Next, the Defendant called an expert in DNA analysis and serology, William Joseph

Watson, Ph.D. Dr. Watson had no issue with the results of the tests performed in this case

but felt more testing could have been done. Dr. Watson acknowledged that when the

original case was worked, it was unusual to have certain types of DNA testing done on

things like hair. Nevertheless, he pointed out, the TBI collected hair and fiber evidence

but did not test it. Even though no hair samples from the victim were available, a

comparison test with family members could have been performed. Dr. Watson also noted

it would have been helpful to determine the type of body hair found in the vehicle, but this

was not done.

Dr. Watson opined the presumptive and confirmatory blood tests conducted by the

TBI did not actually confirm the presence of blood. He explained that the serologist

conducted a presumptive blood test followed by a test for human protein. Human protein

can be present from saliva or other bodily fluids, not just blood, said Dr. Watson, so the

positive result for each test did not necessarily mean the substance was human blood. He

said current tests can determine the presence of blood with more certainty.

12

The reference in the transcript to “amino black and luminal” was likely intended to refer to Amido

black and Luminol.

- 14 -

Dr. Watson commented on the DNA tests showing that the blood inside the maroon

Honda could not be excluded as having come from a female offspring of the victim’s

mother, Ms. Floyd. Dr. Watson agreed with this conclusion but did not agree that the DNA

from the blood in the car “matched” Ms. Floyd’s DNA. He explained the term “match”

was not used in this context; it could at best be only a partial match because offspring

receive DNA from both the mother and father.

Regarding the DNA test performed on the victim’s pap smear, Dr. Watson observed

that the forensic examiner was limited by the technology available at that time. By the

time of Dr. Watson’s testimony, there were tests that could use less DNA and obtain a

better answer. Regardless, he said, when the forensic examiner found two sources of DNA

in the pap smear, he should not have assumed the second DNA source came from a minor

contributor such as the victim’s husband. Dr. Watson testified that lab conditions in the

1990s were often more lax, and he opined that the additional DNA could have instead come

from contamination such as the examiner’s ungloved hand. Instead of assuming the minor

contributor was the victim’s husband, Dr. Watson said, the examiner should have tested

the husband’s DNA as well.

Finally, Dr. Watson noted that the State tested items collected from the car for the

presence of blood twice; because of the intervening appeals and remands, the two tests

were eighteen years apart. The first time, the tests resulted in positive findings. The results

were negative when the tests were performed again eighteen years later. Dr. Watson opined

that the forensic examiner should have looked into the reason for the differing results, and

he commented that the manner in which the evidence was stored could have been a factor.

After considering all of the evidence, the jury convicted the Defendant of first

degree premeditated murder, first degree felony murder, and aggravated robbery. The trial

court merged the first degree premeditated murder and first degree felony murder

convictions.

The trial then went into the penalty phase. Against the advice of counsel, the

Defendant waived his right to present mitigating evidence. The Defendant testified that he

understood he had the right to put on mitigating evidence, knew a mitigation investigation

had been done on his behalf, understood the importance of defending against a death

sentence, but nevertheless freely and voluntarily waived his right to present mitigating

evidence. The Defendant asked his family and friends not to attend the penalty phase of

the trial. He directed defense counsel to refrain from giving an opening statement, giving

a closing statement, or cross-examining witnesses. The trial court noted the Defendant’s

decisions were not in his best interest but accepted the Defendant’s waiver.

The State first presented victim impact evidence. Previous victim impact testimony

- 15 -

from the victim’s mother was read to the jury. She testified about the grief she and the

victim’s children had endured. Their collective grief was compounded, she said, by having

to mourn the victim’s death without ever having found her body.

The proof then moved to the aggravating circumstances. The first aggravating

circumstance the State asked the jury to consider was that “[t]he 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,” as set forth in Tennessee Code

Annotated section 39-13-204(i)(2). In support, the State introduced evidence of the

Defendant’s violent criminal history and relied on his prior convictions of assault with

intent to commit robbery with a deadly weapon in violation of Tennessee Code Annotated

section 39-2-10413 (case number 85-00448); aggravated assault in violation of Tennessee

Code Annotated section 39-2-10114 (case number 85-00449); another aggravated assault in

violation of Tennessee Code Annotated section 39-2-101 (case number 89-02737); and

rape in violation of Tennessee Code Annotated section 39-2-60415 (case number 89-

02738). In addition, the State asked the jury to consider two other aggravating

circumstances: the murder was committed for the purpose of avoiding, interfering with, or

preventing the lawful arrest of the defendant or another, under Tennessee Code Annotated

section 39-13-204(i)(6); and the murder was knowingly committed, solicited, directed, or

aided by the defendant while he had a substantial role in committing or attempting to

commit robbery, under Tennessee Code Annotated section 39-13-204(i)(7).

The jury found one statutory aggravating circumstance beyond a reasonable doubt,

namely, previous convictions for felonies of which the statutory elements involved the use

of violence. The jury found beyond a reasonable doubt that this aggravating circumstance

outweighed any mitigating circumstances. It imposed a sentence of death.

After a separate sentencing hearing on the aggravated robbery conviction, the trial

court imposed an additional eighteen years of confinement running consecutively to the

death sentence. The Defendant later filed motions for judgment of acquittal and for a new

trial. The trial court denied both motions.

13

This statute was repealed in 1989. See generally Act of June 12, 1989, ch. 591, § 1, 1989 Tenn.

Pub. Acts 1169. Currently, assault offenses are found at Tennessee Code Annotated sections 39-13-101 to

-116.

14

See supra note 13.

15

This statute was repealed in 1989. See generally Act of June 12, 1989 § 1. Rape is currently

found at Tennessee Code Annotated section 39-13-503.

- 16 -

The Defendant then filed a direct appeal to the Court of Criminal Appeals, which

affirmed the judgment of the trial court. See State v. Rimmer, No. W2017-00504-CCA-

R3-DD, 2019 WL 2208471 (Tenn. Crim. App. May 21, 2019). This appeal followed.

ANALYSIS

I. Double Jeopardy

Initially, we consider separate double jeopardy arguments raised by the Defendant

and by amicus Amnesty International, Nashville (“Amnesty International”). We address

the Defendant’s double jeopardy argument first.

A. Standard of Review

Questions of constitutional interpretation are reviewed de novo, with no

presumption of correctness afforded to the conclusions of the trial court. State v. Feaster,

466 S.W.3d 80, 83 (Tenn. 2015).

B. Defendant’s Motion to Dismiss

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

felony murder charge on double jeopardy grounds because the jury verdict in the first trial

operated as an implied acquittal of the felony murder charge. The State counters that

double jeopardy did not attach because the trial court instructed the jury not to consider

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

agree with the State.

The United States Constitution provides that no person shall “be subject for the same

offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. Similarly, the

Tennessee Constitution states that “no person shall, for the same offence, be twice put in

jeopardy of life or limb.” Tenn. Const. art. 1, § 10. The federal and state prohibitions

against double jeopardy have been construed as providing the same protections; these

include: (1) protection against a second prosecution for the same offense after acquittal;

(2) protection against a second prosecution for the same offense after conviction; and (3)

protection against multiple punishments for the same offense. North Carolina v. Pearce,

395 U.S. 711, 717 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794

(1989); State v. Watkins, 362 S.W.3d 530, 541 (Tenn. 2012).

Often, when a jury considers a multi-count charge and returns a guilty verdict on

one count but does not return a verdict on the remaining counts, the jury’s silence on the

- 17 -

remaining counts serves as an implied acquittal on them. Double jeopardy prevents retrial

on the remaining counts. State v. Burns, 979 S.W.2d 276, 290–91 (Tenn. 1998).

This is not the case, however, when a jury has received sequential or “acquittal first”

jury instructions, in which the jury is told to consider the lesser counts only if it first finds

the defendant not guilty of the greater offense. See id. at 291 (citing State v. Arnold, 637

S.W.2d 891, 895 (Tenn. Crim. App. 1982)). When a jury returns a guilty verdict on a

greater offense after it has received such an instruction, it does not get a full opportunity to

consider and return a verdict on the lesser counts. Under those circumstances, if the

conviction on the greater offense is later overturned due to a procedural technicality, double

jeopardy does not bar retrial on the lesser-included offenses. See State v. Madkins, 989

S.W.2d 697, 699 (Tenn. 1999) (noting that after sequential jury instructions, a “verdict of

guilty as to attempted felony murder necessarily means that the jury did not consider the

charge of attempted second degree murder,” so on remand, prosecution could proceed on

that charge); State v. Vann, No. E2009-01721-CCA-R9-CD, 2011 WL 856967, at *8

(Tenn. Crim. App. Mar. 11, 2011) (noting that with acquittal-first jury instructions, the jury

would not have deliberated as to the lesser included offenses after it convicted the

defendant of the charged offense).

In this case, at the Defendant’s first trial in 1998, the trial court instructed the jury

as follows:

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. 16

16

Since the Defendant’s 1998 trial, the practice as to sequential jury instructions on counts of first

degree premediated murder and felony murder has changed. Now, when a defendant faces charges of both

first degree premeditated murder and felony murder, trial courts have been advised to instruct the jury to

return a verdict on both charges. If the jury returns a guilty verdict on both, the convictions are merged, as

they are alternative methods of committing the same offense—first degree murder. See State v. Cribbs,

- 18 -

Thus, the Defendant’s first jury was given sequential or “acquittal first” jury instructions.

The jury convicted the Defendant of first degree murder, aggravated robbery, and theft of

property. Having returned a guilty verdict on the first degree murder count, the jury in the

first trial did not consider the felony murder count.

In advance of the second trial, the Defendant filed a motion to dismiss the felony

murder charge on double jeopardy grounds. In support, the Defendant argued the jury’s

failure to return a verdict on the felony murder count in the first trial amounted to an

acquittal, which prevented a second trial on that charge. The trial court denied the motion.

It noted that the trial court in the first trial gave a sequential jury instruction in which it

instructed the jury to first render a verdict on the first degree murder charge (Count 1), and

then on the felony murder charge (Count 2) or a lesser included offense. On this basis, the

trial court in the second trial concluded that the double jeopardy protections of the United

States Constitution and Tennessee Constitution did not apply. The Defendant raised this

issue again in his motion for a new trial, and the trial court denied it for the same reason.

On direct appeal, the Court of Criminal Appeals considered the same issue. It

reached the same conclusion as the trial court:

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 premediated

murder. A jury is presumed to follow the trial court’s instructions. 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.

Rimmer, 2019 WL 2208471, at *9 (citation omitted).

We agree with the lower courts. Based on the sequential jury instructions given in

the 1998 trial and the subsequent verdict, once the jury found the defendant guilty of first

degree premeditated murder (Count 1), we presume it stopped its deliberations without

considering the felony murder charge (Count 2). Thus, the jury in the first trial did not

have a full opportunity to consider the felony murder count before it rendered its verdict,

so double jeopardy did not prevent the State from prosecuting the Defendant for felony

murder in the second trial. See, e.g., Price v. Georgia, 398 U.S. 323, 329 (1970) (holding

double jeopardy prevents retrial on the greater charge when the first jury “was given a full

opportunity to return a verdict” on the greater charge and returned a verdict on the lesser

967 S.W.2d 773, 788–89 (Tenn. 1998).

- 19 -

charge instead (quoting Green v. United States, 355 U.S. 184, 191 (1957))). Accordingly,

we affirm the trial court’s denial of the Defendant’s motion to dismiss the felony murder

count.

C. Amnesty International Double Jeopardy Argument

Amicus Amnesty International argues the Double Jeopardy Clauses of the United

States Constitution and the Tennessee Constitution barred the Defendant’s second trial

because of alleged prosecutorial misconduct in the first trial and sentencings. The State

argues, and we agree, that the Defendant waived this double jeopardy argument by failing

to raise it in his motion for new trial and on appeal. See State v. Harbison, 539 S.W.3d

149, 164 (Tenn. 2018) (“To preserve the double jeopardy issue, [the defendant] had to raise

it in his motion for new trial and appellate brief.”). Nevertheless, because this is a capital

case, we conduct a plain error review of this issue. See State v. Odom, 336 S.W.3d 541,

555 n.9 (Tenn. 2011) (applying a plain error standard of review but noting the issue could

also be reviewed pursuant to Tennessee Code Annotated section 39-13-206(b)’s mandate

that a court reviewing a capital case “shall first consider any errors assigned and then . . .

shall review the sentence of death” and the outcome would be the same).17

In order for an appellate court to conclude that plain error has occurred, all of the

following factors must be present: (1) the record must clearly establish what occurred in

the trial court; (2) a clear and unequivocal rule of law must have been breached; (3) a

substantial right of the accused must have been violated; (4) the accused must not have

waived the issue for tactical reasons; and (5) consideration of the error is necessary to

achieve substantial justice. State v. Martin, 505 S.W.3d 492, 504 (Tenn. 2016). Here, the

retrial of the Defendant did not violate a clear and unequivocal rule of law.

Double jeopardy does not preclude “the government from retrying a defendant who

succeeds in getting his first conviction set aside, through direct appeal or collateral attack,

because of some error in the proceedings leading to conviction.” Lockhart v. Nelson, 488

U.S. 33, 38 (1988); see also State v. Harris, 919 S.W.2d 323, 328 (Tenn. 1996) (“[N]o

constitutional provision prevents retrial after a reversal for legal error.”). Moreover,

despite Amnesty International’s arguments to the contrary, prosecutorial misconduct

prevents retrial only when, through the misconduct, the prosecutor intended to force the

defendant into moving for a mistrial and succeeded in doing so. State v. Tucker, 728

S.W.2d 27, 31 (Tenn. Crim. App. 1986). The alleged prosecutorial misconduct in this case

did not involve forcing the Defendant into moving for a mistrial.18

17

The outcome of our review would be the same under Tennessee Code Annotated section 39-13-

206(b).

18

The Defendant alleged that the prosecutor in the first trial committed misconduct by: withholding

- 20 -

The proper remedy for any alleged prosecutorial misconduct in this case was a new

trial, which the Defendant requested and received.19 See, e.g., State v. Honeycutt, 54

S.W.3d 762, 769 (Tenn. 2001) (new trial for ineffective assistance of counsel); State v.

Goltz, 111 S.W.3d 1, 10 (Tenn. Crim. App. 2003) (new trial for prosecutorial misconduct

that did not involve forcing the defendant into a mistrial). The Defendant is not entitled to

relief on grounds of double jeopardy.

II. Motion to Suppress DNA Evidence

Next, the Defendant asserts the trial court erred by denying his request to dismiss

the indictments or suppress DNA evidence collected from the maroon Honda because

evidence was destroyed when the MPD released the vehicle before the defense had an

opportunity to inspect it. In response, the State equates the vehicle to a crime scene and

argues the MPD did not have a duty to retain the vehicle for years, particularly when it

properly collected and preserved the evidence contained inside the car before releasing it.

Again, we agree with the State.

A. Standard of Review

To review a trial court’s decision regarding the fundamental fairness of a trial

conducted despite missing or destroyed evidence, we apply a de novo standard. State v.

Merriman, 410 S.W.3d 779, 791 (Tenn. 2013). If we conclude the trial would be

fundamentally unfair without the missing or destroyed evidence, then we review the

remedy imposed by the trial court for an abuse of discretion. Id. at 791–92.

B. Ferguson Analysis

The Due Process Clause in the United States Constitution and its counterpart in the

Tennessee Constitution both give every criminal defendant the right to a fair trial. U.S.

Const. amend. XIV, § 1; Tenn. Const. art. I, § 8. “To facilitate this right, a defendant has

a constitutionally protected privilege to request and obtain from the prosecution evidence

that is either material to guilt or relevant to punishment.” State v. Ferguson, 2 S.W.3d 912,

915 (Tenn. 1999) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). This right imposes

a duty on the State to produce all evidence that raises reasonable doubt as to the guilt of

the defendant. Id. (citing United States v. Agurs, 427 U.S. 97, 110–11 (1976)).

exculpatory evidence; destroying exculpatory evidence; filing motions that contained misrepresentations;

knowingly directing a witness to provide false testimony; and failing to inform the Defendant about a

possible conflict of interest. As noted above, the post-conviction court rejected these claims.

19

Again, the post-conviction court granted the Defendant relief based on ineffective assistance of

counsel, not the alleged prosecutorial misconduct.

- 21 -

In Ferguson, the Court considered the course of action to take when allegedly exculpatory

evidence is lost or destroyed before it is produced to the defense. See id. Ferguson held

that, as an element of due process, fundamental fairness requires review of the entire record

to ascertain the effect of the destroyed or missing evidence. Id. at 914. It adopted a

balancing test for determining whether the defendant can have a trial that is fundamentally

fair in the absence of that evidence. Id. at 917.

Under the Ferguson balancing test, the reviewing court first considers whether the

State had a duty to preserve the missing evidence. Id. Subject to Rule 16 of the Tennessee

Rules of Criminal Procedure and other applicable laws, including Brady, the State has a

duty to preserve potentially exculpatory evidence that cannot be obtained by other

reasonably available means. Id.; Merriman, 410 S.W.3d at 792. The Ferguson Court

explained:

Whatever duty the Constitution imposes on the States to preserve evidence,

that duty must be limited to evidence that might be expected to play a

significant role in the suspect’s defense. To meet this standard of

constitutional materiality, evidence must both possess an exculpatory value

that was apparent before the evidence was destroyed, and be of such a nature

that the defendant would be unable to obtain comparable evidence by other

reasonably available means.

2 S.W.3d at 917 (quoting California v. Trombetta, 467 U.S. 479, 488–89 (1984)).

If the reviewing court concludes the State had a duty to preserve the evidence in

question and failed to do so, then it must determine whether destruction of the evidence

violated the defendant’s due process rights. This determination is made by balancing the

following factors: (1) the degree of negligence involved in the destruction or loss of the

evidence; (2) the significance of the destroyed evidence, considered in light of its probative

value and the reliability of secondary or substitute evidence that remains available; and (3)

the sufficiency of the other evidence used at trial to support the conviction. Id.; Merriman,

410 S.W.3d at 785.20 If the reviewing court decides a trial without the evidence would be

fundamentally unfair, the remedies may include dismissal of the charges or a jury

20

In Merriman, we noted that a Ferguson analysis may be conducted pre-trial. We cautioned,

however, that evidence to be presented at trial is reviewed only to put the missing evidence into context and

allow the court to craft the appropriate remedy, if necessary. It is not reviewed for the purpose of

determining the defendant’s guilt or innocence beyond a reasonable doubt. The trial court retains discretion

to reserve its ruling on a Ferguson motion until the evidence has been presented at trial. Merriman, 410

S.W.3d at 789–90. In the instant case, because this was the Defendant’s second trial, the trial court was

able to view evidence that had substantially been presented to jurors in the previous trial and reviewed by

appellate courts.

- 22 -

instruction explaining how the jury is to consider the lost or destroyed evidence. Ferguson,

2 S.W.3d at 917.

Ferguson was applied by our Court of Criminal Appeals in State v. Hollingsworth,

in which the intermediate appellate court considered a trial court’s denial of a motion to

dismiss an indictment. No. E2015-01463-CCA-R3-CD, 2017 WL 111331, at *14 (Tenn.

Crim. App. Jan. 11, 2017), perm. app. denied, (Tenn. May 24, 2017). In that case, the

victim’s car was collected as evidence after her death in 1997. The car was processed by

police and then released to the victim’s family. Id. The defendant was not charged with

the victim’s murder until 2014, long after the vehicle was released. Id. The defendant

moved for dismissal of the indictment for murder on grounds that the release of the vehicle

deprived him of the right to a fair trial. The trial court denied the motion. Id.

On appeal, the intermediate appellate court in Hollingsworth first observed that the

vehicle was not lost or destroyed; the State released it to the victim’s family after

processing pursuant to police department policy. See id. (explaining that Ferguson does

not impose a duty on the police to collect evidence in a particular manner). Moreover,

samples taken from the vehicle as part of the investigation were preserved as evidence and

available to the defendant for analysis. Id. The appellate court held that the State did not

have a duty to retain and preserve the vehicle itself, particularly over the many years of

trial, retrials, and resentencing. Id. at *15.

In the alternative, the Hollingsworth court reasoned that, even if the State had a duty

to preserve the vehicle, its absence did not deprive the defendant of a fundamentally fair

trial. Id. The vehicle was released pursuant to an established policy, not through

negligence or bad faith. Given police department storage limitations, the department was

not required to hold the vehicle from 1997 until 2014. Id. Moreover, the amount of

evidence taken from the vehicle and preserved was significant. It included photographs of

the vehicle’s interior and exterior; photographs and measurements of tire tracks found in

the defendant’s backyard; samples taken from the vehicle that were tested by the TBI and

the results of those tests; and samples of foliage taken from the vehicle and the defendant’s

backyard. In light of all of this evidence, the vehicle itself would not have been particularly

significant. Id. Finally, the evidence presented at trial was sufficient to convict the

defendant of second degree murder, so “[e]ven if third party DNA was found inside the

victim’s car, it would not have explained the other substantial evidence of the [d]efendant’s

guilt.” Id. In those circumstances, the Court of Criminal Appeals concluded, the

defendant’s trial was fundamentally fair, so the trial court did not err in denying the

defendant’s motion to dismiss the indictment. Id.

In the case at bar, the Defendant moved to dismiss the indictments or suppress DNA

evidence collected from the maroon Honda because the vehicle was released before the

- 23 -

Defendant had the opportunity to inspect and independently test it. According to the

Defendant, the fact that no blood from the victim was found in the car’s trunk, even after a

witness testified he saw someone at the Memphis Inn place a large object in the trunk,

would have been exculpatory. Depriving him of the ability to inspect and independently

test the vehicle, the Defendant argued, deprived him of the right to a fundamentally fair

trial.

In its denial of the motion, the trial court held that the State did not have a duty to

retain the vehicle. Under Ferguson, the trial court could have stopped there, but it went

further. The trial court also found that, apart from the cuttings and other items collected

from the Honda, the vehicle itself constituted material evidence because it “potentially”

had “exculpatory value” and comparable evidence could not be obtained by other means.

However, in balancing the three Ferguson factors, the trial court concluded the Defendant

could receive a fundamentally fair trial in the absence of the Honda. It found the first factor

weighed in the Defendant’s favor because the release of the vehicle was intentional.

However, the trial court found in favor of the State as to the other two factors: the

significance of the lost or destroyed evidence in contrast to the secondary or substitute

evidence and the sufficiency of the remaining evidence. The trial court noted that the

evidence from the interior of the car connected the Defendant to the victim’s murder and

that any exculpatory value potentially gleaned by testing the trunk was speculative. It

found that the evidence without the vehicle was sufficient for conviction. Under Ferguson,

then, the trial court held that the release of the maroon Honda did not violate the

Defendant’s due process rights, so it denied the motion.

The Court of Criminal Appeals likewise concluded that the State did not have a duty

to preserve the vehicle. Consequently, it found no error in the trial court’s denial of the

Defendant’s motion to dismiss the indictments or suppress the DNA evidence collected

from the maroon Honda. Rimmer, 2019 WL 2208471, at *11. The Defendant argued

further that the trial court erred in declining to give a Ferguson jury instruction concerning

the State’s release of the vehicle. The Court of Criminal Appeals rejected this argument as

well on the basis that the State had no duty to preserve the vehicle. Id.

After review of the record, we agree with the lower courts that the State did not have

a duty to preserve the maroon Honda for later production to the Defendant. The efforts to

retrieve evidence from the vehicle before its release were thorough and extensive. After

the Defendant was pulled over in Indiana, Johnson County Sheriff’s Office employees

searched the vehicle and inventoried evidence in the presence of MPD officers. A positive

presumptive blood test was conducted and preserved as to at least one of the reddish-brown

stains in the vehicle’s back seat. Investigators took ninety-six photographs of the vehicle

and its contents, including photographs of the trunk after the inside cover was removed.

The vehicle and items taken from it were then securely transported for processing, first to

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Memphis and later to the TBI. Once at the TBI, the maroon Honda was photographed,

inventoried, and vacuumed for hair and fiber samples. Upholstery and carpet samples were

cut for fiber analysis, and items taken from the vehicle were tested for the presence of

human blood. Investigators conducted serological analysis of the interior of the vehicle to

confirm the presence of human blood in the back seat.

The items taken from the vehicle, the bloody patches of upholstery cut from the

back seat of the vehicle, and the abundant photographs of the vehicle were all preserved

and available to the Defendant for analysis. Under these circumstances, the vehicle itself

had little apparent exculpatory value, and its release back to the owner did not leave the

Defendant unable to obtain comparable evidence through the investigatory materials that

remained available to the defense. See Ferguson, 2 S.W.3d at 917. The State had no duty

to retain the vehicle.

In the alternative, even if the State had a duty to preserve the vehicle, the release of

the maroon Honda back to the owner did not violate the Defendant’s due process rights.

First, there was no negligence involved in the State’s failure to retain the vehicle. Id. As

in Hollingsworth, the Honda in this case was released pursuant to policy because law

enforcement authorities did not have the storage capacity to retain it indefinitely. 2017 WL

111331, at *14.

Second, the vehicle itself had little significance as evidence; the Defendant offers

only speculation as to the probative value of being able to physically inspect the trunk. Per

the DNA tests, the blood at the crime scene matched the blood found inside the Honda, and

both were consistent with being the blood of the victim. The existence of blood of a third

party or the absence of any blood whatsoever in the trunk would not negate this evidence.

Finally, the other evidence used at trial was overwhelming. See Ferguson, 2 S.W.3d

at 917. As summarized above, while incarcerated for rape of the victim, the Defendant

expressed a desire to kill her. A witness described seeing a maroon Honda parked close to

the night entrance of the Memphis Inn around 1:40 a.m. the night the victim disappeared,

and saw a man place something heavy and wrapped in a blanket into the vehicle’s trunk.

DNA tests determined blood found at the scene and inside the Honda the Defendant drove

was consistent with that of the victim. Immediately after the victim disappeared, the

Defendant went to see his brother to get assistance cleaning blood from the Honda’s

interior, stopped going to work, and embarked on a cross-country trip, leaving behind his

last paycheck. The Defendant later confessed to the murder in conversations with a fellow

inmate, complete with accurate descriptions of the crime scene. Finally, the Defendant

tried to escape custody on multiple occasions.

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Consequently, even if the State had a duty to preserve the Honda, which it did not,

the release of the vehicle did not result in a fundamentally unfair trial. Accordingly, we

affirm the trial court’s denial of the Defendant’s motion to dismiss the indictments or

suppress DNA evidence.

III. Rule 404(b) Evidence

The Defendant next asserts the trial court erred under Tennessee Rule of Evidence

404(b) in admitting evidence of his prior convictions and escape attempts because the

danger of unfair prejudice outweighed the probative value of the evidence. As a result, the

Defendant contends, the jury was permitted to convict him based on his bad character rather

than the circumstantial evidence presented at trial.

In response, the State argues the prior crimes against the victim were relevant to

establish the Defendant’s motive and intent, and the prior escape attempts indicated the

Defendant’s consciousness of guilt. It maintains that the related jury instructions

minimized the prejudicial impact of the evidence. We agree with the State.

A. Standard of Review

The parties agree that, before it admitted the evidence at issue, the trial court

substantially complied with the procedural safeguards in Rule 404(b), so we review its

decision for an abuse of discretion. State v. Jones, 450 S.W.3d 866, 891 (Tenn. 2014);

State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). Trial judges abuse their discretion

when they cause injustice to the complaining party by applying an incorrect legal standard,

reaching an illogical conclusion, or basing a decision on an erroneous assessment of the

evidence. State v. McCaleb, 582 S.W.3d 179, 186 (Tenn. 2019) (citing Lee Med., Inc. v.

Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)). In applying the abuse of discretion standard,

appellate courts should not substitute their judgment for that of the trial court. Id. Rather,

appellate courts should determine whether the evidence supports the factual basis for the

trial court’s decision, whether the trial court properly applied the pertinent law, and whether

the trial court’s decision was within the range of acceptable alternatives. Id.

B. Tennessee Rule of Evidence 404(b)

Rule 404(b) of the Tennessee Rules of Evidence provides that evidence of other

crimes, wrongs, or acts is not admissible to show conformity with the character trait at

issue but may be admissible for other purposes, such as motive, intent, or identity. See

State v. Berry, 141 S.W.3d 549, 582 (Tenn. 2004). Rule 404(b) seeks to prevent

convictions based on mere propensity evidence. To that end, before a trial court may admit

evidence of other crimes, wrongs, or acts, Rule 404(b) requires it to utilize the following

- 26 -

procedural safeguards:

(1) The court upon request must hold a hearing outside the jury’s

presence;

(2) The court must determine that a material issue exists other than

conduct conforming with a character trait and must upon request state on the

record the material issue, the ruling, and the reasons for admitting the

evidence;

(3) The court must find proof of the other crime, wrong, or act to be clear

and convincing; and

(4) The court must exclude the evidence if its probative value is

outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b)(1)–(4); State v. James, 81 S.W.3d 751, 758 (Tenn. 2002).

In the context of Rule 404(b), this Court has defined “unfair prejudice” as an “undue

tendency to suggest decision on an improper basis, commonly, though not necessarily, an

emotional one.” DuBose, 953 S.W.2d at 654 (quoting State v. Banks, 564 S.W.2d 947, 951

(Tenn. 1978)). Rule 404(b) analysis of material evidence requires trial courts to balance

probative value against the danger of unfair prejudice; the more probative the evidence, the

lower the chance of unfair prejudice becomes. State v. Mallard, 40 S.W.3d 473, 488 (Tenn.

2001).

C. Convictions for Rape and Assault

In this case, the Defendant filed a motion to suppress evidence admitted in his first

trial relating to his convictions for rape and aggravated assault. Pursuant to Rule 404(b),

the State then filed notice of its intent to introduce certain evidence at the retrial, including:

(1) evidence of the Defendant’s January 1989 assault and rape of the victim, the

Defendant’s guilty plea, and the sentence imposed by the trial court; and (2) evidence of

the Defendant’s attempts to escape jail after his arrest for first degree murder and

burglary.21

21

The State also sought to introduce evidence the Defendant engaged in other domestic abuse of

the victim. As to this evidence, the trial court held the State failed to meet the clear and convincing standard

of Rule 404(b), so it denied the request. This ruling was not challenged on appeal. The State also sought

to introduce evidence that the maroon Honda the Defendant was driving when he was arrested in Indiana

had been reported stolen. At the Rule 404(b) hearing, the parties agreed to draft a stipulation explaining

the defendant was pulled over and detained in Indiana for a reason unrelated to the disappearance of the

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Prior to trial, the trial court held a Rule 404(b) hearing at which it heard testimony

from two witnesses―the victim’s daughter, Tracye Ellsworth Brown, and the MPD officer

who responded to the victim’s call for help during the attack, Clifford Freeman. Ms. Brown

was six years old at the time of the attack in January 1989. She was at home when the

Defendant assaulted and raped her mother, and she testified about her recollection of the

events. Officer Freeman testified about the victim’s state when he arrived at the scene,

statements the victim made about the attack, and the subsequent apprehension of the

Defendant.

The trial court held that the Defendant’s guilty plea, conviction, and incarceration

for the 1989 rape and assault of the victim were admissible under Rule 404(b). It found

the State had proven the rape and assault by clear and convincing evidence. The trial court

noted that the evidence included proof of the relationship between the Defendant and the

victim as well as proof of the Defendant’s malice and hostility toward the victim. This

evidence was probative of identity, motive, intent, and premeditation, all non-propensity

reasons for its admission. The trial court then held that the danger of unfair prejudice to

the Defendant did not outweigh the probative value of the evidence.

Likewise, after reviewing the initial trial testimony of Mr. Lescure and Mr. Conaley,

the trial court found their statements about the Defendant’s intent to harm the victim after

his release from prison were probative of intent, motive, identity, and premeditation. It

held that the danger of unfair prejudice to the Defendant did not outweigh the probative

value of the statements. The trial court ruled the testimony of Mr. Lescure and Mr. Conaley

would be admissible under Rule 404(b) so long as it was consistent with the evidence

presented at the first trial.

Nevertheless, the trial court excluded proffered evidence of the details of the

Defendant’s attack on the victim. It decided that evidence of those details presented a

strong risk of inflaming the passions of the jury and a danger of unfair prejudice to the

Defendant. The trial court also excluded the testimony of Ms. Brown as to the underlying

events because she was a young child at the time of the rape and her recollection was hazy;

the trial court held it did not meet the clear and convincing standard.

The Court of Criminal Appeals affirmed the trial court’s admission of evidence

relating to the rape and assault of the victim. It concluded the trial court had properly found

the evidence was probative of issues other than the Defendant’s bad character or propensity

to commit murder and had carefully balanced the probative value of the evidence against

the danger of unfair prejudice. Rimmer, 2019 WL 2208471, at *15.

victim, so the trial court dismissed this portion of the State’s motion as moot.

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As noted, the Defendant does not contend the trial court failed to follow the

procedural requisites of Rule 404(b). Instead, he maintains the trial court erred in holding

that the probative value of this evidence outweighed the danger of unfair prejudice. See

Tenn. R. Evid. 404(b)(4).

This Court has previously held that prior instances of domestic abuse by a defendant

against a victim can be admissible under Rule 404(b). See, e.g., State v. Jarman, 604

S.W.3d 24, 51 (Tenn. 2020) (affirming admissibility of evidence of defendant’s prior

alleged assault of victim to show defendant’s intent and state of mind); State v. Smith, 868

S.W.2d 561, 574 (Tenn. 1993) (in capital murder case, affirming admissibility of evidence

of defendant’s prior assaults of two of the victims, his estranged wife and her son, to show

defendant’s hostility, malice, intent, and settled purpose to harm them). But see State v.

Gilley, 173 S.W.3d 1, 7 (Tenn. 2005) (noting “there is no per se rule of admissibility under

Rule 404(b) for prior acts of abuse committed by a defendant against a victim”).

In this case, the evidence at issue includes: Ms. Brown’s reference to the

Defendant’s rape and assault of her mother and her mother’s visits with the Defendant in

jail afterwards; Richard Rimmer’s statement that his brother pled guilty to raping the

victim; judgment forms documenting the Defendant’s guilty pleas to aggravated assault

and rape; Mr. Conaley’s testimony about anger the Defendant expressed toward the victim;

Mr. Conaley’s testimony regarding the Defendant’s threat to kill the victim if she did not

share unrelated personal injury settlement money with him; Mr. Conaley’s observations

about the Defendant’s demeanor when he talked about the victim; Mr. Lescure’s testimony

about the Defendant’s threat to “kill the funky bitch” after his release from prison; and Mr.

Lescure’s observations about the Defendant’s demeanor when he talked about the victim.

Clearly the evidence at issue has probative value and also presents potential for

unfair prejudice. The trial court found explicitly that the evidence was probative of

identity, motive, intent, and premeditation and held that its probative value outweighed the

danger of unfair prejudice to the Defendant. The trial court also acted to mitigate the risk

of unfair prejudice by excluding evidence of the details of the 1989 rape and assault. The

trial court then took a further step by giving the following limiting instruction to the jury:

If from the proof you find that the defendant has been convicted of

Rape or Aggravated Assault, you may not consider such evidence to prove

his disposition to commit such a crime as that on trial. The evidence may

only be considered by you for the limited purpose of determining whether it

proves motive; that is, such evidence may be considered by you if it tends to

show a motive of the defendant for the commission of the offenses for which

he is presently on trial.

....

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Such evidence of other crimes, if considered by you for any purpose,

must not be considered for any purpose other than those specifically stated

in this instruction.

We presume the jury followed these instructions. See State v. McKinney, 74 S.W.3d 291,

310 (Tenn. 2002) (presuming the jury followed the trial court’s limiting instructions

regarding the consideration of victim impact evidence).

Considering the entire record, we must conclude the trial court did not abuse its

discretion. We affirm its decision to admit evidence of the Defendant’s prior convictions

for rape and aggravated assault, including the statements made to Mr. Conaley and Mr.

Lescure during his subsequent incarceration for those offenses.

C. Escape Attempts

The State also sought to introduce evidence of the Defendant’s escape attempts in

Indiana, Ohio, and Tennessee for the purpose of showing consciousness of guilt. The

Defendant moved to exclude this evidence under Rule 404(b) as well.

The trial court reviewed the prior trial testimony of James Allard, Richard Skaggs,

Tony Lomax, and Dennis Tillman about the Defendant’s escape attempts. After

performing the balancing required under Rule 404(b), it ruled their testimony would be

admissible in the second trial. The trial court noted that defense counsel had ample

opportunity to cross-examine these witnesses at the first trial, and it held that the evidence

was clear and convincing. It determined that the evidence was relevant to establish

consciousness of guilt. In light of the dissimilarity of the crime of escape and the crime of

murder, it found that a jury would be unlikely to use the evidence of escape as propensity

evidence. To diminish the potential for unfair prejudice, the trial court indicated it would

give a limiting instruction to the jury and ultimately did so.

The Court of Criminal Appeals reviewed the testimony at issue, as well as evidence

of homemade “shanks” found in the Defendant’s cell in Indiana which served to

corroborate the evidence of his plans to escape. Rimmer, 2019 WL 2208471, at *15. It

held the trial court did not abuse its discretion in admitting evidence regarding the

Defendant’s escape attempts. Id.

It is well established that evidence of escape or attempted escape after the

commission of a crime can be relevant and admissible at trial to show guilt, knowledge of

guilt, and consciousness of guilt. State v. Burton, 751 S.W.2d 440, 450 (Tenn. Crim. App.

1988); see also Craig v. State, 455 S.W.2d 190, 193 (Tenn. Crim. App. 1970) (citing 22A

C.J.S. Criminal Law § 631) (affirming admission of testimony about defendant’s escape

- 30 -

from custody when brought to the courthouse for a preliminary hearing as evidence of guilt,

knowledge of guilt, or consciousness of guilt); State v. Taylor, 661 S.W.2d 695, 698 (Tenn.

Crim. App. 1983) (“It is universally recognized that testimony as to flight, attempted flight

or concealment after the commission of an offense or after one is accused of a crime is

relevant evidence which may be shown as a criminating circumstance . . . .”). The stage of

the proceedings in which the escape attempt occurs is of no consequence; it is admissible

regardless of the time that passed since the defendant’s arrest. Burton, 751 S.W.2d at 450.

The evidence at issue concerned the Defendant’s flight in a prisoner transport van,

his attempted escape in Indiana, homemade shanks found in his cell,22 and his attempted

escape in Tennessee. After reviewing the record, we agree with the Court of Criminal

Appeals that the trial court properly analyzed this evidence under Rule 404(b). We note as

well that the trial court mitigated any potential for unfair prejudice by giving the jury two

limiting instructions. The first:

If from the proof you find that the defendant has committed any

escape or plan or attempt to commit an escape, you also may not consider

any such evidence to prove his disposition to commit such a crime as that on

trial. This evidence may only be considered by you for the limited purpose

of determining whether it tends to prove flight. The fact of flight alone does

not allow you to find that the defendant is guilty of the crimes for which the

defendant is now on trial, but if flight is proven, you may consider the fact

of flight with all of the other evidence when you decide the guilt or innocence

of the defendant. The rules for this consideration are set out in the following

instruction on flight.

Such evidence of other crimes, if considered by you for any purpose,

must not be considered for any purpose other than those specifically stated

in this instruction.

And the second:

The flight of a person accused of a crime is a circumstance which,

when considered with all the facts of the case, may justify an inference of

guilt. Flight is the voluntary withdrawal of oneself for the purpose of evading

arrest or prosecution for the crime charged. Whether the evidence presented

proves beyond a reasonable doubt that a Defendant fled is a question for your

determination.

22

The Defendant also argues the evidence regarding the shanks was admitted in violation of the

Fifth Amendment of the United States Constitution and Tennessee Rules of Evidence 401, 402, and 403.

The Defendant references no caselaw and makes only a skeletal argument. This argument is without merit.

- 31 -

The law makes no precise distinction as to the manner or method of

flight; it may be open, or it may be a hurried or concealed departure, or it

may be a concealment within the jurisdiction. However, it takes both a

leaving the scene of the difficulty and a subsequent hiding out, evasion, or

concealment in the community, or a leaving of the community for parts

unknown, to constitute flight.

If flight is proved, the fact of flight alone does not allow you to find

that a defendant is guilty of the crime alleged. However, since flight by a

Defendant may be caused by a consciousness of guilt, you may consider the

fact of flight, if flight is so proven, together with all of the other evidence

when you decide the guilt or innocence of a defendant. On the other hand,

an entirely innocent person may take flight and such flight may be explained

by proof offered, or by the facts and circumstances of the case.

Whether there was flight by a Defendant, the reasons for it, and the

weight to be given to it, are questions for you to determine.

Again, we presume the jury followed these instructions. McKinney, 74 S.W.3d at 310.

Under all of these circumstances, we conclude the trial court’s decision to admit

evidence of the Defendant’s escape attempts was not an abuse of its discretion.

IV. Mandatory Review of Death Sentence

This Court is statutorily required to review the Defendant’s death sentence. See

Tenn. Code Ann. § 39-13-206(a)(1) (2018). Our review must include whether (1) the death

sentence was imposed in an arbitrary fashion; (2) the evidence supports the jury’s findings

of statutory aggravating circumstances; (3) the evidence supports the jury’s finding that the

aggravating circumstances outweighed any mitigating circumstances; and (4) the capital

sentence is excessive or disproportionate to the penalty imposed in similar cases,

considering both the nature of the crime and the defendant. Id. § 39-13-206(c)(1)(A)–(D).

A. Arbitrariness in Imposition of Death Penalty

In his supplemental brief to this Court, the Defendant does not seek modification of

his sentence. Rather, he asks the Court to vacate his convictions and order another new

trial. In his supplemental brief, the Defendant also raises, for the first time, a general

arbitrariness challenge to his death sentence, presumably because this Court ordered the

parties to brief the issue for oral argument. Regardless of the Defendant’s failure to raise

this issue before now, we are statutorily required to consider whether his death sentence

- 32 -

was imposed in an arbitrary manner. Id. § 39-13-206(c)(1)(A).

After considering the arguments made by the Defendant and analyzing all pertinent

law, we conclude the jury in this case did not render an arbitrary verdict of death. Our

review reveals that the trial court conducted both the guilt and penalty phases of trial in

accordance with the applicable statutes and procedural rules. The evidence was more than

sufficient to support the guilty verdict. The jury sentenced the Defendant to death after it

found beyond a reasonable doubt one aggravating circumstance―one or more convictions

for a felony with statutory elements involving violence to a person―and also found beyond

a reasonable doubt that this aggravating circumstance outweighed any mitigating

circumstances. The State presented certified copies of four judgments of conviction for

prior violent felonies committed by the Defendant, and the Defendant waived his right to

present mitigating evidence. The imposition of the death penalty was not arbitrary.23

B. Aggravating Circumstance

Before imposing the death penalty or life imprisonment, juries must unanimously

find the existence of at least one aggravating circumstance beyond a reasonable doubt. See

Tenn. Code Ann. § 39-13-204(i) (2018 & Supp. 2020).

In this case, the jury found beyond a reasonable doubt one aggravating

circumstance: “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.” Id. § 39-13-204(i)(2). In this context, “violence” is defined as “physical force

unlawfully exercised so as to injure, damage, or abuse.” State v. Jones, 568 S.W.3d 101,

139 (Tenn. 2019) (quoting State v. Fitz, 19 S.W.3d 213, 217 (Tenn. 2000)). If the elements

of the felonies on which the State relies in support of aggravated circumstance (i)(2) can

23

The Defendant claims his death sentence was arbitrary because the decision to seek the death

penalty is left to the whim of a prosecutor and is often a product of outside pressures, like the media. Both

the United States Supreme Court and this Court have concluded that the discretion afforded to prosecutors

in deciding whether to seek the death penalty does not render the penalty arbitrary or capricious. Gregg v.

Georgia, 428 U.S. 153, 199 (1976); State v. Brimmer, 876 S.W.2d 75, 86 (Tenn. 1994). The Defendant

further contends it was arbitrary because the guilty verdict in this case was based on circumstantial

evidence. This argument is counter to well-established Tennessee precedent. “[T]he cases have long

recognized that the necessary elements of first-degree murder may be shown by circumstantial evidence.”

State v. Brown, 836 S.W.2d 530, 541 (Tenn. 1992). Finally, the Defendant asserts the death penalty should

not be an option in a trial with errors. We have held repeatedly that defendants, even in capital cases, are

not entitled to a perfect trial. See, e.g., State v. Hutchison, 482 S.W.3d 893, 921 (Tenn. 2016) (“[T]he

Constitution entitles a criminal defendant to a fair trial, not a perfect one.” (alteration in original) (quoting

Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986))); State v. Hawkins, 519 S.W.3d 1, 38 (Tenn. 2017)

(affirming a death sentence despite harmless error in admitting the defendant’s statement); State v. Willis,

496 S.W.3d 653, 730 (Tenn. 2016) (affirming a death sentence despite harmless error in double-counting a

single felony-murder aggravating circumstance). We respectfully reject these arguments.

- 33 -

be satisfied without proof of violence, then the trial court must examine the facts underlying

the convictions before it allows the State to present evidence of use of violence. State v.

Sims, 45 S.W.3d 1, 12 (Tenn. 2001).

Here, to support its contention that the Defendant was previously convicted of one

or more felonies whose statutory elements involved the use of violence, the State relied on

the Defendant’s convictions of assault with intent to commit robbery with a deadly weapon

(case number 85-00448); aggravated assault (case number 85-00449); aggravated assault

(case number 89-02737); and rape (case number 89-02738). Aggravated assault can be

proven without evidence of violence. See id. at 10–11 (noting the trial court properly found

that aggravated assault “does not necessarily involve the use of violence to another person”

in that the offense “may be committed by intentionally or knowingly causing the victim to

reasonably fear imminent bodily injury by use or display of a deadly weapon” (footnote

omitted)). The trial court below was already familiar with the facts underlying the

Defendant’s 1989 aggravated assault conviction from reviewing the lengthy pretrial

testimony related to it. It also reviewed the indictment for the Defendant’s 1985 conviction

for aggravated assault, which stated the Defendant “[d]id unlawfully, knowingly, willfully

cause, or attempt to cause serious bodily injury.” Based on this, the trial court held the

underlying facts involved the use of violence. Only then did the trial court allow the State

to present evidence of the aggravated assault conviction to the jury.

During the guilt phase of the trial, the State submitted evidence of the Defendant’s

1989 aggravated assault and rape convictions, including certified copies of those

judgments. In the penalty phase of the trial, the State entered into evidence certified copies

of judgments reflecting the Defendant’s 1985 guilty pleas to assault with intent to commit

robbery with a deadly weapon and aggravated assault. The State argued all four

convictions should be considered in support of the aggravating circumstance. The jury

unanimously agreed.

The Defendant does not challenge the underlying felony convictions presented by

the State, nor does he dispute that they involve an element of violence.

The record in this case shows the trial court followed the proper procedures in

admitting the evidence relating to the Defendant’s violent felony convictions. The record

contains certified judgments for all four convictions. We hold that the evidence fully

supports the jury’s finding that the State proved aggravating circumstance (i)(2) beyond a

reasonable doubt.

C. Aggravating Circumstances Outweigh Mitigating Circumstances

Tennessee law also requires us to assess whether “[t]he evidence supports the jury’s

- 34 -

finding that the aggravating . . . circumstances outweigh any mitigating circumstances.”

Tenn. Code Ann. § 39-13-206(c)(1)(C). The Defendant waived his right to present

mitigating evidence during the penalty phase of the trial, and the trial court found his waiver

was knowing and voluntary. Despite the waiver, the trial court instructed the jury that it

could consider any mitigating evidence presented during the course of trial. After

considering all of the evidence, in returning a verdict of death, the jury found beyond a

reasonable doubt that the aggravating circumstance outweighed any mitigating

circumstances.

From our review, the record contains little if any mitigating evidence to weigh

against the aggravating circumstance. We hold that the evidence fully supports the jury’s

finding that the aggravating circumstance in this case outweighed any mitigating

circumstances.

D. Proportionality Review

Finally, Tennessee law requires the Court to determine whether the sentence of

death in this case is excessive or disproportionate to the penalty imposed in similar cases.

Id. § 39-13-206(c)(1)(D). In doing so, we consider whether the death sentence in this case

is aberrant, arbitrary, or capricious in that it is “disproportionate to the punishment imposed

on others convicted of the same crime.” State v. Bland, 958 S.W.2d 651, 662 (Tenn. 1997)

(quoting Pulley v. Harris, 465 U.S. 37, 43 (1984)).

To perform this review, we employ a precedent-seeking method of comparative

proportionality review, in which we compare this case with other cases involving similar

crimes and similar defendants. The pool of cases to be compared consists of “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,” without regard to the sentence that

was imposed. State v. Rice, 184 S.W.3d 646, 679 (Tenn. 2006) (citing State v. Godsey, 60

S.W.3d 759, 783 (Tenn. 2001); Bland, 958 S.W.2d at 666).

The death sentence for the Defendant must be deemed disproportionate if this case

is “plainly lacking in circumstances consistent with those in cases where the death penalty

has been imposed.” Bland, 958 S.W.2d at 668. Thus, in our proportionality review, we

examine “the facts and circumstances of the crime, the characteristics of the defendant, and

the aggravating and mitigating circumstances involved.” State v. Stevens, 78 S.W.3d 817,

842 (Tenn. 2002). Specifically, we 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

- 35 -

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.

State v. Reid, 164 S.W.3d 286, 316 (Tenn. 2005) (citing Bland, 958 S.W.2d at 667). We

also consider several factors about the Defendant, including his (1) record of prior criminal

activity; (2) age, race, and gender; (3) mental, emotional, and physical conditions; (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. Id. at 316–17.

Here, the evidence indicates that the means of death was a violent and bloody attack

involving blunt or sharp force. The manner of death could not be confirmed because

authorities were never able to locate the victim’s body.

As to the motivation for the killing, the evidence shows that the Defendant and the

victim had a tumultuous off-and-on romantic relationship that included the Defendant’s

assault and rape of the victim and his 1989 guilty plea to the same. The evidence shows

that, while he was incarcerated for these offenses, the Defendant repeatedly blamed the

victim for his incarceration, expressed anger toward her, and told fellow inmates he

planned to kill the victim upon his release.

The evidence indicates the place of death was the victim’s place of employment.

The Defendant went there the night of February 7, 1997 while the victim worked the

overnight shift as a motel night clerk in a high crime area to support her family. The motel

lobby office where the victim worked was secure; the door remained locked at night and

the victim interacted with customers through a clear shield with a drawer. Despite the

Defendant’s past brutalization of the victim, she maintained a relationship with him. The

Defendant took advantage of the victim’s trust; when the Defendant came to the motel with

at least one other male, the victim let them in. The evidence indicated the victim was killed

in a bloody, violent encounter there at the motel, and her body was placed in the maroon

Honda.

At the time of her death, the victim was forty-five years old. As to the victim’s

physical condition and psychological condition, the evidence indicated she was leading a

productive life with a happy marriage and a close relationship with her mother and her

teenage daughter. The victim was also close to her son, who depended on the victim for

support and care regarding conditions arising out of severe burns he had sustained as a

child. At the time of her death, the victim babysat her son’s daughter, the victim’s

granddaughter, multiple times a week.

- 36 -

The evidence of the Defendant’s conversations with Mr. Lescure and Mr. Conaley

indicates the murder was premeditated. When the Defendant spoke to them about his anger

at the victim and his intent to kill her once he got out of prison, the subject matter of the

conversation caused him to foam at the mouth and sweat as he spoke. Approximately a

year later, the Defendant followed through on his threat.

The record does not contain any evidence of provocation or justification for the

murder.

The evidence shows that the effect of the victim’s murder on the non-decedent

victims—her family—was profound. Her husband, mother, daughter, and son all enjoyed

a close and loving relationship with the victim, and they were greatly affected by her

absence from their lives. During the penalty phase of the trial, the victim’s mother testified

that the fact that the victim’s body was never found made closure for the family all the

more difficult. The family was forced to have a memorial service for the victim without a

body. The victim’s mother testified about the mental and emotional effect of not knowing

exactly how her daughter died and whether she was in pain or fear at the time of her death.

We next consider several factors about the Defendant. A white male who was thirty-

one years old at the time of the offenses, the Defendant had a significant record of violent

crime, including assault with the intent to commit robbery with a deadly weapon, rape, and

two counts of aggravated assault. As to the Defendant’s mental, emotional, and physical

conditions, the evidence shows he had an emotional and physical reaction when he talked

about his anger at the victim and his intent to kill her. Although there was proof at trial

that potentially two other males accompanied the Defendant to the Memphis Inn the night

the victim disappeared, the testimony of the Defendant’s fellow inmates about the

Defendant’s descriptions of the murder indicates that he played an active role in killing the

victim. This is consistent with the proof about the Defendant’s past relationship with the

victim, the proof of his motive, the evidence of premeditation, and his decision to leave

immediately afterward on a cross-country trip, driving a vehicle stained with the victim’s

blood.

The evidence shows the Defendant did not cooperate with authorities. After the

murder, the victim’s body was never located. The Defendant’s conversations with other

inmates indicated he disposed of the body, but instead of directing authorities to the body, the

Defendant marveled that they had never found it. Moreover, after the murder, the Defendant

attempted to escape from custody on three occasions. His plan to escape custody in Indiana,

as described to a fellow inmate, included “grabbing a guard,” and homemade shanks were later

found in his cell. After he stole a prisoner transport van in Ohio, the Defendant put public

lives in danger by engaging in an extended high-speed chase. All told, the evidence indicates

the Defendant has no remorse and no potential for rehabilitation.

- 37 -

Based on our thorough review of the record and Supreme Court Rule 12 reports,24

we conclude that the death sentence imposed in this case is neither excessive nor

disproportionate to the penalty imposed in similar cases. We previously affirmed the death

sentence rendered following the Defendant’s first trial and second sentencing hearing,

citing a string of decisions upholding the death penalty where the defendant’s violent

felony history is the sole aggravating circumstance. Rimmer, 250 S.W.3d at 36 (citing

State v. Copeland, 226 S.W.3d 287, 306–07 (Tenn. 2007); State v. Cole, 155 S.W.3d 885,

907–09 (Tenn. 2005); State v. Dellinger, 79 S.W.3d 458, 475–77 (Tenn.

2002); McKinney, 74 S.W.3d at 314; State v. Chalmers, 28 S.W.3d 913, 920 (Tenn.

2000); State v. Keough,25 18 S.W.3d 175, 184 (Tenn. 2000)).

There are other cases in which this Court has affirmed the death sentence based on

the sole aggravating circumstance of the defendant’s violent felony history. See, e.g., State

v. Thomas, 158 S.W.3d 361, 382 (Tenn. 2005); State v. Smith, 993 S.W.2d 6, 21 (Tenn.

1999); State v. Adkins, 725 S.W.2d 660, 662 (Tenn. 1987).

In this Court’s review of Mr. Rimmer’s first capital conviction, we also cited prior

cases in which the jury imposed the death penalty after a conviction for the murder of a

current or estranged significant other. Rimmer, 250 S.W.3d at 36 (citing State v.

Stephenson, 195 S.W.3d 574, 596 (Tenn. 2006), abrogated on other grounds by Watkins,

362 S.W.3d 530; State v. Ivy, 188 S.W.3d 132, 157 (Tenn. 2006); State v. Faulkner, 154

S.W.3d 48, 63 (Tenn. 2005); Stevens, 78 S.W.3d at 822–23; State v. Suttles, 30 S.W.3d

252, 255 (Tenn. 2000); State v. Hall, 8 S.W.3d 593, 595–96 (Tenn. 1999); State v.

Porterfield, 746 S.W.2d 441, 443–44 (Tenn. 1988)).

There are additional cases in which this Court has affirmed the death penalty for

murder involving estranged lovers and other domestic disputes. See, e.g., State v. Clayton,

535 S.W.3d 829, 836–37 (Tenn. 2017) (defendant lethally shot his girlfriend and her

parents); Smith, 868 S.W.2d at 583 (defendant murdered his estranged wife and her two

sons from a prior marriage); State v. Johnson, 743 S.W.2d 154, 155–56 (Tenn. 1987)

(defendant suffocated his wife with a plastic bag); State v. Cooper, 718 S.W.2d 256, 256

(Tenn. 1986) (defendant shot his estranged wife four times at her place of employment).

This Court has also affirmed the death penalty in cases where the circumstances of

the murder involved severe beating. See, e.g., State v. Nichols, 877 S.W.2d 722, 725 (Tenn.

1994) (victim, discovered in a pool of blood, died two days after the defendant repeatedly

24

Tennessee Supreme Court Rule 12 requires trial courts to file extensive reports in all cases in

which the defendant is convicted of first degree murder. These reports include data about the crime, the

defendant, and the punishment imposed. See Tenn. Sup. Ct. R. 12(1) & app.

25

Keough involved a defendant who murdered his estranged ex-wife.

- 38 -

hit her in the head with a piece of lumber while he raped her); State v. Barber, 753 S.W.2d

659, 660 (Tenn. 1988) (defendant murdered the victim by beating her multiple times in the

head during a burglary); State v. McNish, 727 S.W.2d 490, 491 (Tenn. 1987) (victim died

after being severely beaten with a vase).

Combining these two circumstances, as in the instant case, at least three death

penalty cases have involved the brutal beating of a significant other. See, e.g., Faulkner,

154 S.W.3d at 62–63 (defendant killed his wife by hitting her in the head and face with a

skillet and a metal horseshoe; the sole aggravating circumstance was subsection (i)(2));

Hall, 8 S.W.3d at 597 (victim, the estranged ex-wife of the defendant, sustained at least

eighty-three separate wounds, including several blows to head, before she drowned in a

pool); Porterfield, 746 S.W.2d at 444–45 (defendant, hired by the victim’s wife to murder

her husband, killed him by beating him in the head with a tire iron twenty-one times).

No two cases are identical, and we need not find an identical comparative case. Ivy,

188 S.W.3d at 158. We need only analyze similar first degree murder cases in which the

State sought the death penalty, there was a capital sentencing hearing, and the sentencing

jury decided whether the sentence should be life imprisonment, life imprisonment without

the possibility of parole, or death, “regardless of the sentence actually imposed,” to

determine whether the punishment here is disproportionate to the punishment of others

convicted of the same crime. Godsey, 60 S.W.3d at 783; Bland, 958 S.W.2d at 662. It is

not.

Based on our review of the record in this case and our review of other cases in which

the death penalty was sought, we hold that the sentence of death imposed in this case is not

disproportionate to the penalty imposed for similar crimes under similar circumstances.

The Defendant is not entitled to relief on this basis.

CONCLUSION

For the reasons set forth above, we hold: (1) in light of sequential jury instructions

given in the first trial, double jeopardy principles did not bar retrial on the felony murder

count; (2) alleged prosecutorial misconduct in the first trial did not trigger double jeopardy

protections; (3) the State did not have a duty to preserve the maroon Honda, so the trial

court did not err in denying the Defendant’s motion to suppress DNA evidence from the

vehicle; (4) under Tennessee Rule of Evidence 404(b), the trial court did not err in

admitting evidence of the Defendant’s prior convictions for rape and aggravated assault

and his subsequent sentence, including the statements made to Mr. Conaley and Mr.

Lescure; (5) the trial court did not err under Rule 404(b) in admitting evidence of the

Defendant’s escape attempts, including the corroborating evidence of homemade shanks

found in his cell; (6) imposition of the death penalty is neither arbitrary nor

- 39 -

disproportionate given the circumstances of the crime; (7) the evidence supports the jury’s

finding that the State proved beyond a reasonable doubt aggravating circumstance (i)(2)

under Tennessee Code Annotated section 39-13-204; (8) the evidence supports the jury’s

finding beyond a reasonable doubt that the aggravating circumstance outweighed any

mitigating circumstances; and (9) the sentence of death is neither excessive nor

disproportionate to the penalty imposed in similar cases. We agree with the conclusions

of the Court of Criminal Appeals as to the remaining issues and have included the relevant

portions of its opinion in the attached appendix. We affirm the convictions and the

sentence.

The sentence of death shall be carried out as provided on the 10th day of May, 2022,

unless otherwise ordered by this Court or other proper authority. It appearing that the

Defendant, Michael Rimmer, is indigent, the costs of this appeal are taxed to the State of

Tennessee.

____________________________

HOLLY KIRBY, JUSTICE

- 40 -

APPENDIX

(EXCERPTS FROM THE DECISION OF THE COURT OF

CRIMINAL APPEALS)

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

___________________________________

No. W2017-00504-CCA-R3-DD

___________________________________

[Introduction omitted]

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, Senior Counsel; Rachel M. Stephens and Pamela S.

Anderson, District Attorneys General Pro Tem, for the appellee, State of Tennessee.

OPINION

PROCEDURAL BACKGROUND

[Omitted]

ANALYSIS

- 41 -

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.

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

- 42 -

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 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.

- 43 -

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 . . . .

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

- 44 -

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

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

- 45 -

[Omitted]

III. Motion to Suppress DNA Evidence

[Omitted]

A. Collateral Estoppel

[Omitted]

B. Due Process Violation

[Omitted]

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 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

- 46 -

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

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

- 47 -

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.

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

- 48 -

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.

V. Evidence of Prior Assault on Victim and Escape Attempts

[Omitted]

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

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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

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.

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“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 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.

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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

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

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“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.

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.

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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.

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

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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 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

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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 c

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