State of Tennessee v. Hubert Glenn Sexton, Jr.

02/02/2024

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

August 29, 2023 Session

STATE OF TENNESSEE v. HUBERT GLENN SEXTON, JR.

Appeal from the Criminal Court for Scott County

No. 7685 William B. Acree, Senior Judge

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No. E2022-00884-CCA-R3-CD

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In 2000, the Scott County Grand Jury indicted the Defendant, Hubert Glenn Sexton, Jr.,

for two counts of first degree premeditated murder, and the Defendant was convicted of

both counts and was sentenced to death for each offense. State v. Sexton, 368 S.W.3d

371, 378 (Tenn. 2012). Thereafter, this court granted the Defendant post-conviction

relief from these convictions and remanded his case for a new trial. Sexton v. State, No.

E2018-01864-CCA-R3-PC, 2019 WL 6320518, at *26 (Tenn. Crim. App. Nov. 25,

2019). On retrial, the Defendant was again convicted of two counts of first degree

premeditated murder and was sentenced to consecutive sentences of life without parole.

In this appeal, the Defendant argues the trial court erred (1) by denying his constitutional

right to self-representation under the Sixth Amendment to the United States Constitution

and article I, section 9 of the Tennessee State Constitution, and (2) by allowing several

witnesses to testify about allegations that the Defendant had sexually abused his step-

daughter prior to the killings in this case. After review, we affirm the judgments of the

trial court.

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

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

CURWOOD WITT, JR., and JILL BARTEE AYERS, JJ., joined.

James N. Hargis, Sparta, Tennessee, for the appellant, Hubert Glenn Sexton, Jr.

Jonathan Skrmetti, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney

General; Jared R. Effler, District Attorney General; and Thomas E. Barclay and Apryl

Bradshaw, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

In May 2000, the Scott County Grand Jury indicted the Defendant for two counts

of first degree premeditated murder. At trial, the Defendant was convicted of both

counts, and the jury imposed the death penalty for each of the two murder convictions.

Sexton, 368 S.W.3d at 383-84. After this court affirmed the Defendant’s convictions and

sentences, the Defendant appealed to the Tennessee Supreme Court, which affirmed the

Defendant’s convictions but reversed the death sentences and remanded the case for a

new sentencing hearing. Id. at 431. The Tennessee Supreme Court affirmed the

Defendant’s convictions because the evidence of his guilt was overwhelming but set

aside the death sentences because there was an improper striking of prospective jurors

based solely on their written responses to the jury questionnaire; because the trial court’s

admission of hearsay testimony by Hope Tharp, a child protective services worker, about

the Defendant’s step-daughter’s allegations of sexual abuse by the Defendant was

prejudicial error because Tharp’s testimony was cumulative on the issue of motive;

because the trial court erred when it allowed a police officer to testify that the Defendant

had refused to take a polygraph examination; and because the prosecution made improper

comments during opening and closing arguments. Id. at 400-431. Prior to the

Defendant’s re-sentencing hearing, the State withdrew its intent to seek the death penalty,

and the Defendant received consecutive life sentences. Sexton, 2019 WL 6320518, at *6.

After being resentenced, the Defendant timely filed a petition for post-conviction

relief. Id. After the post-conviction court denied relief, the Defendant appealed to this

court, alleging that the post-conviction court failed to make specific findings of fact

regarding several issues addressed at the post-conviction hearing, that the State

committed a Brady violation, that he was denied his constitutional right to a fair and

impartial jury, that trial counsel was ineffective during the guilt and penalty phases of the

trial, that appellate counsel was ineffective during the direct appeal, that appellate and re-

sentencing counsel were ineffective during the re-sentencing hearing, that the prosecution

committed overreaching and misconduct, that the trial court failed to utilize a method of

properly recording peremptory challenges in the record, and that cumulative effect of

these errors rendered his trial fundamentally unfair. Id. at *11-26. After concluding that

one of the jurors failed to disclose her relevant history of domestic violence, that

Defendant’s trial counsel was ineffective in failing to question a juror about her history of

sexual abuse, and that the jury was exposed to extraneous prejudicial information during

trial, this court reversed the judgment denying post-conviction relief, vacated the

Defendant’s convictions, and remanded the case to the trial court for a new trial. Id. at

*15, 17-18, 20.

Before he was retried, the Defendant filed several pretrial motions. As relevant

here, the Defendant filed a Rule 404(b) motion to exclude “any testimony of the prior

sexual assault allegations, investigation, and charges against [him], including any

testimony by Hope Tharp.” The Defendant also filed a motion to substitute counsel.

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Following the Rule 404(b) hearing, the trial court denied the motion to exclude evidence

regarding the prior sexual abuse allegations against the Defendant. Following a hearing,

the trial court also denied the motion to substitute counsel, and the Defendant

immediately made an oral request for self-representation, which the trial court also

denied.

Trial. We have included a brief summary of the evidence presented at the

Defendant’s January 2022 trial that is relevant to the issues raised on appeal. BG1

testified that in the spring of 2000, she was seven years old and lived in Bradley County,

Tennessee, with her mother and the Defendant, who was BG’s step-father. At the time,

BG also lived with her nine-year-old brother and the Defendant’s daughter, BS. BG said

that her father, Stanley Goodman, lived with his wife, Terri Sue Goodman, in Scott

County, Tennessee.

BG stated that Defendant sexually abused her multiple times and that the last

incident of sexual abuse occurred a few days before Stanley and Terri Sue Goodman

were killed. During this last incident, the Defendant called BG downstairs, where he

“made [her] perform oral sex on him forcefully” and told her that if she revealed his

sexual abuse of her to anyone again, he would kill BG’s father. The next day, BG told

her teacher, Carrie Trew, about the Defendant’s sexual abuse of her the previous night

and about what the Defendant had said about killing her father if she disclosed the abuse.

BG said that she had previously informed her father about the Defendant’s sexual abuse

of her, and her father had made a recording, wherein BG detailed the last few incidents of

the Defendant’s sexual abuse. BG said she had also told her teacher, Carrie Trew,

“multiple times” about the Defendant’s sexual abuse of her.2

1

It is the policy of this court to identify minor victims of sexual abuse by their initials only.

2

At the conclusion of BG’s trial testimony, the trial court provided the following instruction to

the jury:

If you find from the proof that the defendant has committed a crime or crimes other than

that for which he is on trial, 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 provides: the complete story of the crime; that is, such evidence may be

considered by you where the prior crime and the present alleged crime are logically

related or connected, or are part of the same transaction, so that the proof of the other

tends, or is necessary, to prove the one charged, or is necessary to complete an account

thereof; and, 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 offense presently charged.

Such evidence of other crimes, if considered by you for any purpose, must not be

considered for any purpose other than that specifically stated.

-3-

BS, who was the Defendant’s daughter and BG’s step-sister, testified that she was

sitting on the stairs the last time BG was sexually abused by the Defendant, which was

the night before she and BG were taken into foster care. BS said that although she could

not see anything, she overheard the Defendant tell BG that “she needed to open her

mouth and put it in her mouth.” She said BG “started crying” because she did not want

to comply and then “it was quiet” before she heard “something hit, something fall[,] or

something being thrown” and heard the Defendant “yelling at [BG].”

Carrie Trew, BG’s first grade teacher, testified that on May 16, 2000, BG told her

that the Defendant, her step-father, had touched her inappropriately. Trew immediately

reported these allegations to the school and to the law enforcement officer at school.

Thereafter, Trew and the school’s guidance counselor took BG to the restroom, where

they observed bruises on BG’s arm as well as “welts” on the front of her legs, her vaginal

area, and her rear. Trew said that starting in April 2000, BG told her “multiple times”

about the Defendant’s abuse. She said she had personally seen BG’s bruises and did not

understand why BG had not already been removed from the Defendant’s home.

Hope Tharp, a team leader for the Department of Children’s Services (DCS),

testified that her first contact with BG and her mother was on March 28, 2000, based on a

referral from Scott County. During this interview, BG did not disclose any abuse and

simply repeated what another adult had said about BG’s grandmother telling lies about

the Defendant. Tharp said DCS received a second referral on May 16, 2000, and after a

case manager met with BG, Tharp scheduled a meeting with the Defendant and his

family that afternoon, although only BG, BG’s mother, and BG’s brother appeared.

During this meeting, BG and her brother were placed into foster care, and BG informed

Tharp that her mother had told BG to lie about what happened with the Defendant at the

March 28, 2000 interview. Because the Defendant and BS failed to appear at this

meeting, Tharp contacted local law enforcement to assist her in locating them, so BS

could also be placed in foster care.

When Tharp finally interviewed the Defendant, she explained BG’s allegations of

sexual abuse, and the Defendant denied the allegations and suggested that BG’s father,

Stanley Goodman, had “put those ideas” in BG’s head. The Defendant specifically

referenced a phone conversation he had with Stanley Goodman in February 2000,

wherein Goodman played a tape recording of BG detailing the Defendant’s abuse of her.

During the interview with Tharp, the Defendant offered to “sign something saying he did

this” and then go to jail for two or three years, so he, his wife, and his kids could be a

family again. However, Tharp informed the Defendant that if this sexual abuse occurred,

then the children would be placed in foster care and would not return to him or his wife

anytime soon.

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Gary Millsaps, a deputy for the Bradley County Sheriff’s Department, testified

that on May 16, 2000, he went to the Defendant’s apartment in an attempt to locate BS,

who was being placed in foster care. When the Defendant arrived at home, he was upset

about the officers taking his children. While standing a short distance away, Deputy

Millsaps overheard the Defendant tell his wife, “If I go to jail for anything, it’ll be

murder.”

Sharra Crowley testified that she had prepared taxes for the Defendant for several

years. She said that in 2000, the Defendant claimed that his step-daughter, EG, was a

dependent, and when Crowley questioned him about whether EG actually lived with him,

the Defendant said that if Stanley Goodman ever tried to take EG from him, he would

“blow their brains out.” Crowley later warned Terri Sue Goodman, Stanley’s wife, about

what the Defendant had said.

Tony Alvarez, a lieutenant with the Bradley County Sheriff’s Department, testified

that he interviewed BG at her school on May 16, 2000. After speaking with BG, he

interviewed the Defendant at the school the same day. The Defendant claimed that BG’s

allegations were false and that they had been “cooked up by the Goodmans in order to

create problems for him and his wife.” During the May 16, 2000 interview, Lieutenant

Alvarez informed the Defendant that Stanley and Terri Sue Goodman were planning to

come to Bradley County on May 22, 2000, to petition for custody of the children.

Lieutenant Alvarez also interviewed the Defendant the next day, May 17, 2000, and the

Defendant questioned why the Goodmans were doing this to him and suggested that the

Goodmans had encouraged BG to make these allegations against him. During this

second interview, the Defendant announced that “if he was going to jail,” it would not be

“for sexual abuse or molestation” but “for murder.”

On May 20, 2000, Lieutenant Alvarez was notified by law enforcement that

Stanley and Terri Sue Goodman had been fatally shot and that the Defendant was the

primary suspect. Lieutenant Alvarez interviewed the Defendant for the third time on

May 21, 2000, and although the Defendant initially claimed he had never threatened to

kill Stanley Goodman, he eventually admitted to making that threat but claimed he did it

out of anger and did not mean it. Lieutenant Alvarez said that he interviewed the

Defendant’s wife, Sherry Farmer, on May 24, 2000, after Farmer had reached out to him.

During Farmer’s interview, the Defendant suddenly appeared and demanded to speak

with his wife. Although Lieutenant Alvarez did not allow the Defendant to speak to

Farmer, he became worried about Farmer’s personal safety after she indicated that the

Defendant was involved in killing the Goodmans. Following this interview, Lieutenant

Alvarez placed Farmer in a safe house. He noted that the Defendant was taken into

custody for killing the Goodmans on May 26, 2000. Lieutenant Alvarez said that the

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Defendant always denied being responsible for killing the Goodmans and for the child

abuse but consistently blamed the child abuse allegations on Stanley Goodman.

On cross-examination, Lieutenant Alvarez confirmed that the Defendant was the

Tennessee Bureau of Investigation’s (TBI’s) primary suspect in the Goodmans’ killings.

He said he was aware of no other suspects in the killings.

Sherry Farmer, the Defendant’s ex-wife, testified that prior to being married to the

Defendant, she was married to Stanley Goodman, and she and Goodman had three

children together, EG, BG, and her son. She explained that in May 2000, EG was living

with her father, Stanley Goodman. On May 16, 2000, Farmer went to BG’s school and

learned that BG had alleged that the Defendant sexually abused her. After BG made this

allegation, BG and her brother were taken into foster care. She recalled that when

officers appeared at their apartment on May 16, 2000, looking for BS, the Defendant told

her in the presence of the officers that “before he would be accused of child molestation,

he would be accused of murder first.”

Farmer said that on May 20, 2000, the Defendant dropped her off at work around

7:00 a.m. and picked her up at approximately 3:00 p.m. When the Defendant picked her

up that afternoon, Farmer noticed a shopping bag, containing a black sweat suit, that had

not been in the car that morning. After the Defendant dropped Farmer off at home, he

went to The Muffler Shop. The Defendant returned home about an hour later but left

again in the early evening, telling Farmer only that he “was going to Scott County” to

“take care of stuff[.]” She said the Defendant returned home around 1:00 a.m. At

approximately 3:00 a.m., Danny Mason showed up at their apartment asking to talk to the

Defendant, but she was unable to awaken the Defendant. Late Sunday morning, Farmer

and the Defendant went to eat at Denny’s with Danny Mason and Mason’s girlfriend. At

some point on Sunday, the Defendant confessed to Farmer that he had killed the

Goodmans, explaining that he killed Terri Sue only because “she woke up.” The

Defendant said that after killing the Goodmans, he “burned” the black sweat suit, threw

the gun he used “in the river,” and bought new tires for his car. The Defendant said he

put garbage bags “over his shoes” before shooting the Goodmans. On May 24, 2000,

Farmer called Lieutenant Alvarez and met with him. During this meeting, the Defendant

suddenly appeared and wanted to talk to her. Lieutenant Alvarez later took her to a safe

house.

Because Christy Swallows was deceased at the time of the Defendant’s second

trial, the State presented Swallows’ testimony from an earlier proceeding in lieu of her

testimony at trial. Swallows stated that she first met the Defendant when he asked her to

babysit his children. On the week of May 14, 2000, Swallows said the Defendant told

her that he and his family were moving back from Scott County because of an

-6-

investigation regarding the molestation of the children. When Swallows asked him

questions about this, the Defendant replied that Stanley Goodman had played a tape of

EG and BG to him. She said the Defendant, referring to Stanley Goodman as “that

bastard,” said that “[t]hat bastard in Scott County did this” and that he was going to kill

Goodman “for this.”

Swallows said that approximately a week later, the Defendant banged on her door

and told her that Sherry Farmer had left him and that Farmer was talking to the police.

At the time of this conversation, Swallows knew that Stanley and Terri Sue Goodman

had been killed. When she asked the Defendant if he killed the Goodmans, the

Defendant initially denied being responsible but later admitted that he killed them, stating

that “[t]here was blood everywhere” and that he “blowed them some-of-a-bitches full of

holes.” Swallows said that the Defendant also told her that he purchased the gun he used

in the killings from “Danny.”

On cross-examination, Swallows admitted that she and the Defendant had an affair

and got to be close friends before the Defendant was arrested in this case. She said that

after the Defendant admitted to her that he killed the Goodmans, she contacted law

enforcement.

Because Preston Adams was deceased at the time of the Defendant’s second trial,

the State presented Adams’ testimony from an earlier proceeding in lieu of his testimony

at trial. Adams stated that he got to know the Defendant through work. He said the

Defendant told him that he was going to be charged with child sexual abuse and blamed

Stanley Goodman for initiating the charges. The Defendant then inquired where he could

purchase a .22 or .25 pistol, and when Adams told him he did not know where he could

get one of those guns, the Defendant said that “he was going to take care of the damn

problem” before “it could escalate any further.” The Defendant also told Adams he knew

Stanley Goodman was going to Bradley County in the next few days. Adams claimed

that he did not have a gun to give or loan the Defendant.

Adams said that at work on May 20, 2000, the Defendant told him he “hadn’t had

any sexual contact with the children . . . but he wasn’t going to let them come down there

before he took care of that.” Although Adams tried to talk the Defendant out of taking

care of Stanley Goodman, the Defendant claimed “he had already made up his mind.”

The Defendant dropped Adams off at home at 12:30 p.m. on May 20, 2000, and Adams

said he did not see the Defendant again until 8:00 or 9:00 a.m. the next morning when the

Defendant and his wife came to see him at the Budget Motel where he was staying.

Adams said that when his girlfriend and the Defendant’s wife went outside, the

Defendant admitted to him that he killed the Goodmans. The Defendant told Adams that

he had bought a sweat suit and gloves and that he had removed the “hair follicles off of

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his body.” He also said that after committing the killings, he burned his clothes and

“burnt the stock of the gun and buried the rifle part.” In addition, the Defendant told

Adams that he bought “oversized shoes” to make it look like a bigger man committed the

crimes and that he “changed the tires on his vehicle” to disguise his car. The Defendant

said he shot the Goodmans in their bedroom, even though this information had not been

reported on the news.

EG3 testified that she was the daughter of Stanley Goodman and Sherry Farmer

and that her siblings were BG and her brother and that her step-sister was BS. In May

2000, EG was thirteen years old and was living with Stanley Goodman. She said she

routinely went to the races with her aunt every Saturday night and that her father left the

front door to their house unlocked, which the Defendant knew. EG said that when she

returned to Stanley and Terri Sue Goodman’s home at 11:00 p.m., her dogs and cats were

“acting weird,” the porch light that was normally on was turned off, and she felt like she

was “being watched.” EG said she never saw her father and step-mother before she went

to bed that night and did not discover that they had been killed until the next morning.

Danny Mason testified that he was currently incarcerated for an aggravated

stalking conviction. He stated that he and the Defendant were close friends and that he

had lived with the Defendant for a period of six months. Mason stated that on Saturday,

May 20, 2000, between 5:30 and 6:00 p.m., the Defendant drove to The Muffler Shop

while he was working and asked for the automatic .22 rifle that Mason had sold him and

had been storing for him at Mason’s mother’s home. Mason said the Defendant told him

that he “wanted to relieve some steam” by target practicing with the rifle. The Defendant

drove Mason to his mother’s home, and Mason got the rifle and placed it in the

Defendant’s trunk. The Defendant then dropped Mason off at work and said he was

“going to take care of some business in Scott County[.]” At the time, Mason was aware

that the Goodmans lived in Scott County and that Stanley Goodman had previously

called DCS on the Defendant, which resulted in the Defendant’s children being taken

away from him.

Mason next saw the Defendant at 3:30 a.m. on Sunday morning when Mason went

to the Defendant’s apartment after fighting with his girlfriend and saw that the Defendant

was “passed out on the couch.” Mason said he talked to Sherry Farmer for a few minutes

and then left. Mason next saw the Defendant again at 8:30 a.m. on Sunday, when the

Defendant and Farmer came to take Mason and his girlfriend out to Denny’s. Mason

rode to Denny’s with the Defendant, who told him that he had “shot Stanley” when he

went to Scott County the previous night after obtaining the rifle. When the Defendant

3

At the time of this trial, the witness had married. For the sake of clarity, we will

continue to refer to her as we have prior. We intend no disrespect.

-8-

made this statement, Mason had not heard that Stanley and Terri Sue Goodman had been

killed. When they got to the restaurant, Mason and the Defendant went to the restroom,

and the Defendant repeated that he had shot Stanley Goodman, although he never

mentioned anything about shooting Terri Sue Goodman. After eating at Denny’s, the

Defendant and Mason went to The Muffler Shop to look “at a set of tires that he was

wanting to purchase” from a friend of Mason’s girlfriend. The Defendant ultimately

purchased only two tires because he did not have enough money for all four tires. Mason

claimed that he often rode with the Defendant to Scott County on the back roads and that

because the Defendant drove at a speed of over a hundred miles an hour, the trip only

took them between an hour and fifteen minutes to an hour and thirty minutes, depending

on traffic.

On cross-examination, Mason acknowledged that he had been convicted of four

felonies. He stated that when the Defendant said he was going to take care of some

business in Scott County, he thought “he meant Mr. Goodman” but was not sure.

Hilary West testified that she was a friend of the Defendant in 2000 and that she

had received a few letters from the Defendant while he was facing some legal trouble

involving Stanley and Terri Sue Goodman. West said she received a December 27, 2000

letter from the Defendant, wherein the Defendant told her that he “need[ed] an alibi very

badly” for the time period between 8:00 p.m. and 9:30 p.m. on May 20, 2000, and needed

“a chick to step up and tell them about the back seat we shared.” West said she also

received a March 23, 2001 letter from the Defendant, wherein the Defendant asked her to

provide the following alibi for him:

I called Rick’s and you answered. We talked for a few and I agreed to loan

you some money but you had to meet me in Kingston but I couldn’t be

there till late. I did get to the lake about nine p.m., and I had [Beth] from

hilltop with me. You remember, short blonde hair, a hundred and ten

pounds, five foot three. So we rode over to the liquor store, and I went in

wearing a black pair of jogging pants and a tee shirt. We got back to your

car, and you and I talked for a while. About 10:30 you took off for home

and we said we was headed for Chattanooga. That’s all you know. You

swear you don’t think I was in any rage. I was getting Beth and leaving

Sherry and her family behind. That’s short and sweet and no confusion.

I’ll make it up to you tenfold when I get out of here.

Now, I’ve not given Ron your name yet but I’m going to this week. The

only way you can get in trouble doing this is change your story after you

give it. That is absolutely the only way. I have Ron, I have Jeffers, and

we’ve got me to keep the Scott County detective at bay and off your ass.

-9-

I’ve got everything covered for you, but for sure this is the story I want you

to use. This way there is nothing funny going on.

West said that she never offered to help with the Defendant, although she willingly

wrote letters to him.

Dinnah Angel Moses, a special agent forensic scientist with the TBI, was accepted

as an expert in the field of firearms identification. Agent Moses testified that she

compared the nine .22 caliber shell casings collected from the Goodman’s home and

determined that all nine of these casings were fired from the same firearm.

The autopsy results showed that Stanley and Terry Sue Goodman each suffered

four gunshot wounds to the face, which caused their deaths. With regard to the timing of

the Goodman killings, Agent Charles Scott with the TBI testified that it took two to two

and a half hours to drive from the Defendant’s apartment in Cleveland, Tennessee to the

Goodman’s home in Huntsville, Tennessee. Law enforcement officers found in the

Defendant’s car at his residence a Dollar General Store receipt for a sweatshirt and

sweatpants that were purchased at 2:37 p.m. on May 20, 2000.

Tinnie Crumley’s January 4, 2022 deposition was presented by the State at the

Defendant’s trial in lieu of her testimony. Crumley stated that she worked at Dollar

General Store in 2000 and that the store’s records showed that a sweatshirt and

sweatpants were purchased at that store on May 20, 2000. Crumley recalled a man

purchasing a black sweatshirt and sweatpants on that date, and when she told him that he

was going to “burn up” in those clothes because it was summertime, the man replied that

he was “going camping.” Crumley confirmed that the Dollar General receipt found in the

Defendant’s car showed that the sweatshirt and sweatpants had been purchased from the

store where she worked. She acknowledged that although she was shown a lineup in this

case, she was unable to identify anyone as the man who purchased the sweatshirt and

sweatpants on May 20, 2000.

A. Wayne Carter, an attorney with the public defender’s office who represented

the Defendant in 2002, testified that BG signed an affidavit shortly after the killings,

stating that the sexual abuse allegations BG made against the Defendant were false and

that someone had encouraged her to concoct this story about the Defendant. On cross-

examination, Carter acknowledged that because BG was a child at the time, an adult

would have had to bring her to his office, although he did not recall the identity of this

adult. Carter acknowledged that it was not uncommon for children to recant their

statements and that a recantation did not necessarily mean that the abuse did not occur.

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The Defendant testified on his own behalf at trial. He claimed that when BG’s

sexual abuse allegations were referred to DCS in 2000, he did not blame Stanley and

Terri Sue Goodman but blamed Sherry Farmer’s sister, mother, and father. The

Defendant claimed that his statement to Farmer that he would “much rather go to jail for

a murder charge than . . . child molestation” was not a threat but a recognition of how

child molesters were treated in prison.

The Defendant stated that on May 20, 2000, he had a conversation with Preston

Adams. The Defendant then asked Danny Mason at The Muffler Shop if he still had the

.22 rifle, and Mason agreed to let the Defendant use it. The Defendant said he picked up

Adams around 2:00 p.m. that day, and they stopped at the Dollar General store. Adams

went inside briefly and came out carrying a couple of bags containing dark clothing. The

Defendant and Adams then went to a house where Adams purchased drugs and then the

Defendant dropped off Adams at home. The Defendant said he went back to The Muffler

Shop until Sherry Farmer, his wife, called, and he left to pick up Farmer at work. After

picking her up, the Defendant said he confronted Farmer about a potential affair between

her and Adams, which caused them to argue. The Defendant and Farmer returned home,

and then the Defendant left around 4:00 or 4:30 p.m. and went back to The Muffler Shop

to talk to Mason. The Defendant and Mason drove to Mason’s mother’s home to get the

.22 rifle, and the Defendant told Mason to put the rifle in the trunk of the Defendant’s car.

Once the Defendant returned home, he tried to get Farmer to go with him to Atlanta for

the purpose of locating Molly Wimpey, the woman who was the mother of his children.

The Defendant said he told Farmer he knew about “the plan” and that she was “a freaking

fool.” He also told Farmer that the rifle was in the trunk of his car. The Defendant then

stated that he “didn’t think [Farmer and Adams] would do it,” and he “begged her not to

go.” The Defendant said that Farmer dropped him back to The Muffler Shop around 7:30

or 8:00 p.m. before Farmer took their car to meet Adams.

The Defendant then stated that he took several Xanax and started drinking beer

and smoking marijuana with some of the guys at The Muffler Shop. Because Mason and

his girlfriend had already left, the Defendant did not have a ride, so he walked to the

Hilltop Bar, which was between The Muffler Shop and his home. The Defendant got to

the bar around 10:15 p.m. and took some more Xanax pills. He said he began causing

trouble at the bar, so he was asked to leave. The Defendant said he then walked home,

arriving there around 11:00 or 11:30 p.m. He said that there was no one home and no

cars, including his car, in the driveway when got home, and he “crashed on the couch”

until 11:00 a.m. the next morning when Farmer woke him up. The Defendant said he and

Farmer went over to Mason’s home “trying to find out what he wanted,” and Mason

asked him “what happened,” and the Defendant did not respond because he did not know

what had happened. He noted the dark clothes that Adams had purchased the day before

were no longer in the back seat of his car. While at Mason’s home, they decided to get

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some breakfast at Denny’s. The Defendant said he rode with Mason, and they discussed

Mason’s giving him the .22 rifle. The Defendant told Mason that he did not know the

location of this rifle, that he did not know anything about what happened, and that Mason

“needed to keep his mouth shut” because if “this [went] bad, it could be real bad.” The

Defendant denied telling Mason on the way to Denny’s that he killed anyone and claimed

he said he “didn’t know.” The Defendant also denied telling Mason in the restroom of

Denny’s that he killed someone; instead, he claimed that he and Mason never went to the

restroom together. The Defendant said that after they ate, they went to The Muffler

Shop, and the Defendant talked Mason into selling him two tires for Farmer’s Camaro.

While there, he popped the trunk to his car, realized that the rifle was no longer there, and

put the two tires in the trunk.

The Defendant said he later contacted Detective Wade Chambers at the Scott

County Sheriff’s Office, told him he knew that the Goodmans had been shot and that law

enforcement was looking for him, and then offered his assistance. The Defendant

acknowledged that he provided the .22 rifle to Farmer and Adams so they could kill the

Goodmans and admitted he took Adams “to the dollar store and helped him prepare,

more or less.” The Defendant said that he made several statements that were different

from the testimony he had just given because he was afraid that if he said he put the .22

rifle in the car for Farmer and Adams and helped them, then the Defendant would also

“go to prison.” The Defendant stated that he was “the only one paying for this” but he

was “not the only one responsible” and that he had already served twenty-one and half

years, including thirteen years in isolation. The Defendant claimed that he never went to

Scott County that night, never went inside the Goodmans’ home, and never shot the

Goodmans.

On cross-examination, the Defendant admitted that he had been convicted of two

counts of theft in Scott County and that he had not conducted himself with honesty when

he committed those crimes. The Defendant also acknowledged that he had not been

honest when he committed the one count of forgery and three counts of burglary in

Georgia, of which he was also convicted. The Defendant denied telling Tinnie Crumley

at the Dollar General Store that he was going camping on May 20, 2000, and claimed that

he had never seen Crumley before she was deposed. He acknowledged that he showed

Crumley a photograph of Adams at her deposition with the hope that she would say that

Adams purchased the sweatshirt and sweatpants that day. The Defendant acknowledged

this was the first time he had publicly blamed Preston Adams for killing the Goodmans.

The Defendant denied sexually abusing BG and claimed BG was told to make

these allegations by her grandparents and Stanley Goodman. He also denied telling BG

that he would kill her father if she disclosed the abuse. The Defendant acknowledged

that both BG and BS testified that they heard him say, “Open your mouth and put it in

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your mouth.” However, he claimed that BG and BS conspired against him. The

Defendant also denied telling Christy Swallows that Stanley Goodman had lied about the

allegations that he had sexually abused BG and that the Defendant was going to “kill him

for this.” He also denied telling Christy Swallows that he blew Stanley and Terri Sue

Goodman “full of holes.” The Defendant later acknowledged that he may have made

some threatening statements regarding Stanley Goodman because Goodman had recorded

BG’s statement regarding the sexual abuse.

The Defendant denied that Detective Alvarez told him that Stanley Goodman was

coming on May 22, 2000, to petition for custody of the children. In addition, the

Defendant denied telling Preston Adams, “Stanley Goodman initiated a child sex abuse

charge [against him] and is coming to Cleveland the first of the week, and I’m not going

to let him come before I take care of it.” The Defendant also denied telling Danny Mason

and Sherry Farmer that he was going to Scott County to “take care of stuff” or “take care

of business.”

The Defendant acknowledged that the condition of all nine shell casings recovered

in this case were consistent with them being fired from a semi-automatic weapon, which

was consistent with the rifle Danny Mason said he gave the Defendant. He also admitted

that BG told her teacher, Carrie Trew, that he had been sexually abusing BG on May 16,

2000, and that the Stanley and Terri Sue Goodman were killed only four days later on

May 20, 2000. The Defendant also acknowledged asking Hilary Cooper to be his alibi

and admitted that he lied to her “over and over” so she would help him. He claimed that

someone named “Tina” was going to be his alibi, but his attorneys did not find her until a

year after his first trial, and then Tina passed away.

At the conclusion of the Defendant’s retrial, the jury convicted him as charged of

two counts of first degree premeditated murder, and the Defendant received consecutive

life sentences without parole for each conviction. Thereafter, the Defendant timely filed

a motion for new trial and amended motion, arguing in pertinent part that the trial court

erred in denying his request for self-representation and erred in admitting testimony

regarding the allegations of his sexual abuse of BG. Following the trial court’s denial of

these motions, the Defendant timely filed a notice of appeal.

ANALYSIS

I. Motion to Waive Counsel. The Defendant argues that the trial court erred in

denying his right to self-representation, as guaranteed by the Sixth Amendment to the

United States Constitution and article I, section 9 of the Tennessee Constitution. He

asserts that the trial court erred in denying his motion to waive counsel without a hearing,

in finding that the Defendant was not capable of representing himself without making any

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other findings, and in not inquiring into why the Defendant wanted to represent himself.

The Defendant claims that the court’s finding that he was not capable of representing

himself was “far from a proper justification” to deny his request for self-representation

and maintains that “the procedural history of this case shows that [he] was more than

capable of representing himself in various complicated proceedings.” The Defendant

also contends that because he timely filed his waiver of counsel, asserted his right to self-

representation clearly and unequivocally, and knowingly and intelligently waived his

right to counsel, his case should be remanded for a new trial, where he should be afforded

the opportunity to represent himself. In response, the State asserts that the trial court

properly denied the Defendant’s motion to waive counsel, insisting that the Defendant

never properly invoked his right of self-representation because he failed to make a clear

and unequivocal waiver of the right to counsel. We conclude that the trial court did not

err in denying the Defendant’s motion to waive counsel because the Defendant failed to

clearly and unequivocally assert his right to self-representation and because the record

shows the Defendant did not genuinely want to represent himself and was simply

manipulating the judicial process to obtain a attorney of his choosing or to delay trial.

Initially, we recognize that a criminal defendant has not only the right to be

represented by counsel but also the right to self-representation. U.S. Const. amend. VI;

Tenn. Const. art. I, § 9; see State v. Hester, 324 S.W.3d 1, 30 (Tenn. 2010); Tenn. R.

Crim. P. 44(a) (“Every indigent defendant is entitled to have assigned counsel in all

matters necessary to the defense and at every stage of the proceedings, unless the

defendant waives counsel.”). The right to counsel and the right to self-representation are

alternative rights, with the defendant able to assert one or the other but not both. Lovin v.

State, 286 S.W.3d 275, 284 (Tenn. 2009). The right of self-representation exists

“‘despite the fact that its exercise will almost surely result in detriment to both the

defendant and the administration of justice.’” State v. McMiller, No. E2015-01597-

CCA-R3-CD, 2016 WL 3947878, at *3 (Tenn. Crim. App. July 18, 2016) (quoting State

v. Fritz, 585 P.2d 173, 177 (Wash. Ct. App. 1978)).

The issue of whether a defendant has exercised his right of self-representation and

has simultaneously waived his right to counsel is a mixed question of law and fact that

this court reviews de novo, accompanied by a presumption that the trial court’s factual

findings are correct. Hester, 324 S.W.3d at 29-30. “An error in denying the exercise of

the right to self-representation is a structural constitutional error not amenable to

harmless error review and requires automatic reversal when it occurs.” Id. at 30 (citing

State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008)).

In order to exercise the right of self-representation, a defendant must waive his

right to counsel, and this waiver may occur at any stage of the proceedings. Id.

However, “[c]ourts should indulge every presumption against waiver of the right to

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counsel.” Lovin, 286 S.W.3d at 287 n.15 (citing Brewer v. Williams, 430 U.S. 387, 404

(1977); State v. Worrell, 660 S.E.2d 183, 185 (N.C. Ct. App. 2008); Williams v. State,

252 S.W.3d 353, 356 (Tex. Crim. App. 2008); State v. Vermillion, 51 P.3d 188, 192-93

(Wash. Ct. App. 2002)). Courts have typically “assigned a constitutional primacy to the

right to counsel over the right of self-representation.” Hester, 324 S.W.3d at 30. “‘[I]t is

clear that it is representation by counsel that is the standard, not the exception.’” Id.

(quoting Martinez v. Court of Appeal of Cal., 528 U.S. 152, 161 (2000)).

In order to exercise the right of self-representation, “(1) a defendant must make the

request in a timely manner; (2) the assertion of the right of self-representation must be

clear and unequivocal; and (3) the assertion of the right of self-representation must reflect

a knowing and intelligent waiver of the right to counsel.” Id. at 30-31 (citing State v.

McCary, 119 S.W.3d 226, 256 (Tenn. Crim. App. 2003); State v. Herrod, 754 S.W.2d

627, 629-30 (Tenn. Crim. App. 1988); United States v. Bush, 404 F.3d 263, 271 (4th Cir.

2005); United States v. Mackovich, 209 F.3d 1227, 1236 (10th Cir. 2000); W. Mark

Ward, Tennessee Criminal Trial Practice §8:4, at 220 (2009)). “Before accepting a

waiver of counsel,” the trial court must “advise the accused in open court of the right to

the aid of counsel at every stage of the proceedings” and must “determine whether there

has been a competent and intelligent waiver of such right by inquiring into the

background, experience, and conduct of the accused, and other appropriate matters.”

Tenn. R. Crim. P. 44(b)(1)(A), (B) (emphasis added). The defendant’s waiver of the

right to counsel must be in writing and must be included in the record. Tenn. R. Crim. P.

44(b)(2), (b)(3).

However, “[t]he right of self-representation is not absolute.” Hester, 324 S.W.3d

at 31 (citing Indiana v. Edwards, 554 U.S. 164, 171 (2008)). Even if a defendant’s

invocation of the right of self-representation meets the aforementioned requirements, “the

effectiveness of the defendant’s invocation and waiver is not a foregone conclusion.” Id.

Notably, there is no right of self-representation when a defendant “seeks to abuse the

dignity of the courtroom or to engage in serious obstructionist misconduct.” Id. (citing

Edwards, 554 U.S. at 171). In other words, defendants are not allowed to use the right of

self-representation “‘as a tactic for delay, for disruption, for distortion of the system, or

for manipulation of the trial process.’” Id. (quoting United States v. Mosley, 607 F.3d

555, 558 (8th Cir. 2010)). “A court may deny a manipulative request for self-

representation, distinguishing between a genuine desire to invoke a right of self-

representation and a manipulative effort to frustrate the judicial process.” Id. at 33

(citations omitted).

“[T]he competence that is required of a defendant seeking to waive his right to

counsel is the competence to waive the right, not the competence to represent himself.”

Godinez v. Moran, 509 U.S. 389, 399 (1993) (footnote omitted). “[A] criminal

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defendant’s ability to represent himself [or herself] has no bearing upon his [or her]

competence to choose self-representation.” Id. at 400 (footnote omitted). Hester

explained:

A trial court may properly conclude that a defendant is likely to be

incompetent and ineffective as an advocate in his or her own defense and

that the defendant lacks important knowledge about substantive and

procedural law; however, these conclusions, without more, do not render

the defendant incompetent or unable to waive the right to counsel.

324 S.W.3d at 32. This is because “[d]eficiencies in legal skills and legal knowledge do

not deprive a person of his or her right to self-representation.” Id.

In State v. Hester, the trial court declined to allow Hester to represent himself. Id.

at 28-29. On appeal, the Tennessee Supreme Court held that while the trial court’s

concerns about Hester’s lack of knowledge of the law and lack of competence as a

communicator and advocate did not support the denial of the defendant’s request to

represent himself, the trial court’s finding that Hester was attempting to manipulate the

judicial system did provide adequate support for the trial court’s denial of the request for

self-representation. Id. at 33. After detailing the trial court’s ruling concerning this

denial, the Tennessee Supreme Court held that it understood this ruling as reflecting its

findings that Hester “was trying to manipulate the process to obtain a new lawyer or to

have [his former lead attorney] reappointed as lead counsel” and that Hester “did not

have a genuine desire or intent to represent himself at trial.” Id.

In this case, at the pretrial hearing on the motion to substitute counsel, the

Defendant stated, “Your Honor, I filed a motion to substitute counsel, and I wanted to

make it clear that I’m not asking to go pro se.” The Defendant added that “[a]t this stage

in the proceedings,” he needed “experienced trial counsel.” He claimed that current trial

counsel had erroneously informed him that his attorneys at his first trial failed to impeach

Preston Adams with Adams’ numerous convictions. The State countered that at the time

of the Defendant’s first trial, Adams did not have any convictions that would have been

admissible for the purposes of impeachment, although Adams received “some

convictions later on.” The Defendant said he had trusted trial counsel’s claim that there

was impeachment evidence available against Adams, even though he never asked to see

the convictions. The Defendant said he later testified under oath that he had seen Adams’

convictions, and when the State argued that there was no available impeachment

evidence against Adams, the Defendant said it made him “look like a liar” and “upset”

him.

- 16 -

The Defendant also claimed that current trial counsel was unable to explain why

Adams’ rent receipts were important. He claimed that Adams had “built his statement

that [the Defendant] confessed to him at a location that [Adams] didn’t even live in until

a month after [the Defendant] was incarcerated.” The Defendant asserted that even

though current trial counsel knew that the new investigator would not know anything

about Adams’ rent receipts because they were found by the old investigator, trial counsel

asked the new investigator about the rent receipts anyway. The Defendant argued that

current trial counsel could have called the lady who gave Adams’ rent receipts to the old

investigator, but counsel refused to do so. The Defendant asserted that he did not trust

current trial counsel and did not have “any confidence in his work.”

The Defendant additionally argued that current trial counsel and the State were

bound by the Tennessee Supreme Court’s prior ruling on the Rule 404(b) issue regarding

allegations that he sexually abused BG. The Defendant claimed that current trial counsel

should have filed a Rule 12 motion to strike this evidence on retrial, and then should have

appealed the trial court’s denial of this motion, because the Tennessee Supreme Court

had already held that regardless of the veracity of BG’s allegations that the Defendant

sexually abused her, this evidence was “overly prejudicial.” The Defendant maintained

that current trial counsel did not have “enough experience to handle a case like this” and

that even though trial counsel could have called witnesses to counter the evidence that the

sexual abuse occurred, he failed to do so. When the trial court noted that the Defendant

was free to call these witnesses at his new trial, the Defendant replied, “Absolutely.” The

Defendant then asserted, “But that’s after the child rape is already in, and that’s what

we’re trying to prevent. We’re trying to prevent the prejudice that got this case remanded

the first time.” The Defendant then said he did not “feel comfortable with [current trial

counsel] as [his] lead attorney in this case.”

The State asserted that it believed current trial counsel had properly handled the

Rule 404(b) issue by having a Rule 404(b) hearing prior to the new trial. The State also

argued that although the Defendant claimed the Tennessee Supreme Court held that the

“child sex abuse [wa]s overly prejudicial,” that court actually held that “the hearsay

testimony of Hope Tharp was overly prejudicial” but that admission of this evidence

“wasn’t grounds for overturning the case.” Consequently, the State argued that there was

“no precedent that had to be upheld on remand.” The State then added:

What the State brought before the Court, and what [Defendant’s current trial

counsel] appropriately responded to and defended against, was the testimony

of the actual children, which is not the same as hearsay testimony through

Hope Tharp [that was presented at the Defendant’s first trial]. It’s not an

issue that had been previously . . . determined by Justice Wade [in the

Tennessee Supreme Court opinion], and we do believe that it was dealt with

- 17 -

in an appropriate manner and that [Defendant’s trial counsel] did not

demonstrate any lack of appropriate assistance of counsel.

The Defendant countered that he pursued a “shotgun” strategy of the Rule 404(b)

issue on appeal and that “Justice Wade ruled on each individual issue that [he] brought.”

He said that in the end, the ruling that got his sentences reversed and his case remanded

was that the evidence of the sexual abuse of BG was “overly prejudicial.” He noted that

Justice Wade ruled that “there was all kinds of other evidence to show motive and that

the details of this child rape stuff was absolutely cumulative.” Defendant’s trial counsel

stated that because the Defendant had testified that trial counsel “lied to him” and that he

did not trust him, it had put him “in a predicament ethically to continue [his]

representation[.]” However, trial counsel said that he was “not asking to be removed”

and that he would do whatever the court asked [him] to do.

The trial court noted, “[I]f counsel were allowed to withdraw every time that his

client said he was being dishonest or lying to him, I think it would be very difficult to

obtain appointed counsel in a lot of cases.” The court also remarked that it was

“significant the number of appointed counsel that [the Defendant] had in the past[,]”

which was highlighted in the State’s response to the Defendant’s motion and was based

on the record in this case. The Defendant replied that the State’s response was “talking

about [his] numerous previous lawyers and the fact that [he] just kept getting morons

[appointed to him] before [his] post-conviction.” The Defendant claimed that even

though his previous attorneys were telling him that his issues were not winnable, he “was

able to win several constitutional violations.” When the trial court asked if current trial

counsel was the Defendant’s “latest moron,” the Defendant said, “No, I am not. That’s

not what I’m saying at all.” The Defendant added:

I know I’ve [gone] through a bunch of attorneys. I’m not denying that. But

I have ultimately gotten relief. Every time this case has left Scott County

and I’ve got[ten] to the appellate court, I’ve had lawyers [who] were

capable of getting me relief. I know a good lawyer. I know someone

[who] can cross-examine witnesses. I can watch them in the courtroom a

couple of times. I know if they’re going to be effective or not. I mean, you

do too. . . . And a hundred and eighty-five students graduate law school:

Somebody’s number one; somebody’s number three hundred and eighty-

five, you know. I don’t want the three hundred and eighty-fifth guy. Just

because he’s qualified and he’s got papers saying he’s an attorney doesn’t

make him an experienced trial attorney.

The Defendant asserted that the State had “no direct evidence” against him and

that he needed an attorney who knew when witnesses were lying. He said that at the

- 18 -

recent Rule 404(b) hearing, BG and BS contradicted their previous statements and “their

stories were so similar” that they had to have been a result of “collusion[,]” but current

trial counsel never pointed this out. The Defendant said he needed “a trial attorney that . .

. as soon as one of these witnesses tell[s] a lie they can be right on top of it” and that was

“not the case with the cross-examinations [he had] seen with [current trial counsel].”

The trial court recalled that when it was first designated to hear this case it had

been very difficult to find an attorney to represent the Defendant because he had been

previously represented by so many of the district’s defense attorneys. The court noted

that Defendant’s current trial counsel, who was a criminal defense attorney from Sparta,

Tennessee, a couple hour’s drive from the courthouse, was ultimately appointed to

represent the Defendant, and that Defendant was now asking to substitute another

attorney for trial counsel. The court also recognized that the Defendant had just told the

court that he did “not want to proceed pro se” and instead wanted “experienced trial

counsel.” The court remarked that the Defendant had come into court two weeks prior

and informed the court that he could “make a bond of two hundred thousand dollars or

so” and that if the Defendant was “capable of making a bond like that,” he might “want to

consider hiring an attorney to represent” him, but that if the Defendant hired counsel, he

needed to be ready to go to trial in January. The trial court also recognized that the

Defendant’s issues with current trial counsel arose after he lost the motions concerning

the admission of Preston Adams’ testimony from the Defendant’s first trial and the Rule

404(b) evidence. The court held that the Defendant was “not entitled to relitigate those

motions[,]” which it felt had been decided correctly and which the Defendant was free to

raise on direct appeal if he wished.

Citing State v. Carruthers, 35 S.W.3d 516, 546 (Tenn. 2000), the trial court

asserted that the Defendant did not have the right to appointed counsel of his choosing.

The court also found that the complaints the Defendant had with current trial counsel

were very similar to the complaints he had made regarding his other eleven attorneys,

most of whom he had filed a complaint against with the Board of Professional

Responsibility and/or had argued that they had provided him with ineffective assistance

of counsel. The trial court asserted that if the Defendant continued to make attacks upon

current trial counsel he might “forfeit [his] right to be represented by an attorney in this

case.” The court then made the following findings about the Defendant:

You stated earlier that you wanted an attorney to represent you, and you

should have an attorney representing you. You’re uneducated in the law

and you have no ability . . . to represent yourself . . . . But you need to keep

in mind that if you continue—that your conduct in the future could result in

a waiver or forfeiture of your right to counsel.

- 19 -

The court then referenced the holding in Carruthers that “a finding of forfeiture is

appropriate only where a defendant egregiously manipulates the constitutional right to

counsel so as to delay, disrupt, or prevent the orderly administration of justice” and that

“[w]here the record demonstrates such egregious manipulation[,] a finding of forfeiture

should be made and such a finding will be sustained, even if the defendant is charged

with a capital offense.” Id. at 550. The court then warned the Defendant that he could

forfeit his right to counsel if he engaged in conduct that appeared to be “an effort to

manipulate or delay the trial of the case or to disrupt it.”

Thereafter, the trial court denied the motion to substitute counsel, stating that

current trial counsel was a “highly competent attorney who ha[d] zealously represented

[the Defendant].” It noted that the Defendant’s motion was related to “two or three

motions upon which [trial counsel] did not prevail” and that the court was satisfied that

its rulings on those motions were correct. The trial court also said, “I’ve seen nothing

whatsoever about [trial counsel]’s performance as a lawyer which would make him

ineffective in his representation of you[.]”

When the court asked the State to prepare an order denying the Defendant motion

to substitute counsel, the following exchange occurred:

The Defendant: Your Honor, I have a subsequent motion I’d like to file

with the [c]ourt right now, if you don’t mind.

The Court: I do mind. You’re represented [by counsel]—

The Defendant: It’s actually a waiver of counsel, Your Honor.

The Court: I’m not going to accept it, [Defendant]. You’re not

capable of representing yourself. You told me earlier

at the outset you did not want to proceed pro se. You

said you wanted experienced trial counsel, which I

think you have. I’m not going to accept your waiver.

You may file it and put that in the record.

If the State would please when preparing the order . . .

also prepare one rejecting his waiver [of counsel].

At the motion for new trial hearing, the trial court concluded that although the

pretrial motions “did not turn out the way the [D]efendant wanted,” Defendant’s trial

counsel “was competent” and had provided “effective assistance of counsel.” The court

- 20 -

also noted the Defendant’s extensive “history of attacking his appointed defense

counsel,” stating:

Of the eleven previous attorneys . . . who have been appointed to represent

the [D]efendant in various stages of this case, [the Defendant] has accused

seven of them of rendering ineffective assistance and [has] filed B[oard of

Professional Responsibility] complaints against at least two. The

[D]efendant has the right to appointed counsel but not the right to choose

counsel. The [D]efendant is not entitled to a meaningful relationship with

his defense attorney. The [c]ourt found those facts existed then. They exist

today.

The trial court then considered the Defendant’s claim that it was error for the court

to deny the Defendant’s pretrial motion for self-representation:

The [c]ourt found the [D]efendant is not competent to represent himself in a

case in which he is charged with two counts of first degree murder where

the State is seeking a sentence of life without the possibility of parole.

Secondly, [trial counsel] is competent and has provided the effective

assistance of counsel.

[Defendant], in short, the [c]ourt found at that time and finds today that you

are not competent to represent yourself in a case of this nature involving

two homicides. You have no legal training other than what you may have

picked up on your own, and you’ve shown no reason to allow you to

represent yourself. I think we discussed the possibility of elbow counsel. I

also think you eventually decided you wanted [trial counsel] to represent

you. But be that as it may, the [c]ourt found you were not competent to

represent yourself in a case of this nature.

Here, the Defendant argues that the trial court never determined whether he was

making a manipulative effort to frustrate the judicial process or was making a genuine

desire to invoke his right of self-representation because the trial court immediately denied

the Defendant’s waiver of counsel as it was being filed with the clerk in open court. He

adds that although he timely filed this waiver, asserted his right to self-representation

clearly and unequivocally, and knowingly and intelligently waived his right to counsel,

the trial court (1) never conducted an inquiry into the genuine nature of his request, (2)

never made a proper finding as to why it was denying the Defendant’s request, and (3)

failed to conduct a review of the requirements of the motion. Instead, he claims the trial

court “forced [him] to be represented by counsel that he believed lied to him.” The

Defendant asserts that unlike the record in Hester, which showed manipulative and

- 21 -

retaliatory tactics by the accused, there is no such record in his case. Consequently, the

Defendant argues that his case should be remanded for a new trial, thereby affording him

the proper opportunity of self-representation as guaranteed by the United States

Constitution and the Tennessee Constitution.

Before determining this issue, we must first consider the Defendant’s November 7,

2023 pro se motion to supplement the appellate record with his motion to waive counsel

as well as the State’s December 8, 2023 motion to strike the Defendant’s motion to

supplement the record. At the time the Defendant filed this motion to supplement, the

Defendant was, and continues to be, represented by counsel. It is well established that

this court may not consider any pro se filing by a defendant while the defendant is

represented by counsel. State v. Smith, 492 S.W.3d 224, 242 (Tenn. 2016) (“[A]

defendant may not proceed pro se while simultaneously represented by counsel.”); State

v. Muse, 637 S.W.2d 468, 470 (Tenn. Crim. App. 1982) (stating that a defendant may not

file pro se motions while represented by counsel). On January 4, 2024, the Defendant

changed his tactic and filed, with the assistance of his counsel, a motion to correct or

supplement the record with the motion to waive counsel. We conclude that there is

absolutely no need to supplement the record in order to determine whether the trial court

erred in denying the Defendant’s right to self-representation. Tennessee Rule of Criminal

Procedure 44 makes it clear that a written waiver of the right to counsel is only required

when a trial court permits the defendant to proceed pro se. See Tenn. R. Crim. P.

44(b)(2), (b)(3). Therefore, “[t]here is no requirement that the request for permission to

waive the right to counsel and proceed pro se be in writing.” State v. Alderson, No.

M2015-01395-CCA-R3-CD, 2016 WL 5543266, at *8 (Tenn. Crim. App. Sept. 29, 2016)

(citing State v. Hessmer, No. M2012-01079-CCA-R9-CD, 2013 WL 1249022, at *2

(Tenn. Crim. App. Mar. 28, 2013) (rejecting the State’s claim that failure to include a

written waiver of the right to counsel waived the claim to self-representation and

reversing the trial court’s denial of the motion to proceed pro se)). In this case, the

Defendant first filed a motion to substitute counsel, which the trial court denied. The

Defendant then requested that he be allowed to assert his right of self-representation,

which the trial court also denied. Because the Defendant “was not required to introduce a

written waiver of the right to counsel when the trial court . . . determined that he would

not be permitted to waive the right to counsel,” we do not find the absence of a written

waiver in the record “to be dispositive[,]” and accordingly deny the motion to supplement

the record. See id.

Initially, we conclude that the Defendant’s request for self-representation was not

clear and unequivocal, as is required. The Defendant spent the majority of the hearing on

his motion to substitute counsel arguing that he needed an experienced trial attorney to

represent him in this case. He specifically asserted that he was “not asking to go pro se”

but instead wanted “substitute counsel.” In discussing some of his issues with trial

- 22 -

counsel, the Defendant said that he needed to have an attorney who, “as soon as one of

these witnesses tell[s] a lie, they can be right on top of it,” and he claimed this was “just

not the case with the cross-examinations that [he had] seen with [current trial counsel].”

With the exception of the very end of the motion hearing, the Defendant consistently

stated that he did not want to proceed pro se because he understood that he needed an

attorney to represent him and that he merely wanted “experienced trial counsel” to assist

him in this difficult case. It was only after the trial court denied his motion to substitute

counsel that the Defendant made his “last-minute” motion to waive counsel so he could

assert his right of self-representation. The trial court, in denying this waiver motion,

referenced the Defendant’s earlier statements that he needed an attorney to represent him

in his complex case. Thereafter, the Defendant never informed the trial court that he was

no longer concerned about proceeding pro se in this case and that he no longer felt he

needed the assistance of an experienced lawyer at trial. While this court acknowledges

that a defendant may make a motion to proceed pro se after a motion to substitute counsel

is denied, we agree with the State that the Defendant’s one-sentence request to proceed

pro se, without more, is not enough to unequivocally distance himself from his comments

earlier in the hearing. Accordingly, we can easily conclude that the Defendant request for

self-representation was not clear and unequivocal.

Moreover, the record clearly shows that the Defendant made his request for self-

representation, not because he had a genuine desire to represent himself, but because he

wanted to obtain an attorney of his choosing or delay trial. During the Defendant’s

motion to substitute counsel, the trial court observed that the Defendant was on his

twelfth attorney and that the Defendant had made similar complaints about his previous

attorneys. The court then warned the Defendant about engaging in conduct that appears

to be “an effort to manipulate or delay the trial of the case or to disrupt it[.]” While the

trial court did not explicitly find that the Defendant was manipulating the judicial process

by filing his motion to substitute counsel, the court warned him about this type of

conduct.

After the trial court denied the Defendant’s motion to substitute, the Defendant

immediately made his last-minute motion to waive counsel. We conclude that the timing

of this waiver motion, the trial court’s concerns about the Defendant’s abusing the

judicial process, and the Defendant’s repeated claims throughout the motion hearing that

he needed counsel but wanted a different attorney to represent him indicates that the

Defendant did not have a genuine desire to assert his right to self-representation and was

simply using the motion to waive counsel in an attempt to obtain an attorney of his

choosing or to delay his trial.

We acknowledge that defendants “are free to seek to invoke a right of self-

representation as an alternative should their request for the appointment of a different

- 23 -

attorney be denied.” Hester, 324 S.W.3d at 33. However, in this case, the record shows

that the Defendant was simply manipulating the judicial process in order to have an

attorney of his choosing. Cf. Carruthers, 35 S.W.3d at 546 (noting that the right to

counsel “does not include the right to appointment of counsel of choice, or to special

rapport, confidence, or even a meaningful relationship with appointed counsel”).

“Disingenuous invocations of the right of self-representation that are designed to

manipulate the judicial process constitute an improper tactic by a defendant and are not

entitled to succeed.” Hester, 324 S.W.3d at 33 (citing United States v. Welty, 674 F.2d

185, 187 (3d Cir. 1982)). We also recognize that “[a] court may deny a manipulative

request for self-representation, distinguishing between a genuine desire to invoke a right

of self-representation and a manipulative effort to frustrate the judicial process.” Id.

(citing United States v. Bush, 404 F.3d 263, 271 (4th Cir. 2005); United States v. Frazier-

El, 204 F.3d 553, 560 (4th Cir. 2000); Edwards v. Commonwealth, 644 S.E.2d 396, 400

(Va. Ct. App. 2007); People v. Marshall, 931 P.2d 262, 272 (Cal. 1997)). The record in

this case clearly shows that the Defendant did not genuinely wish to represent himself

and was only making this request to have an attorney of his choosing or to delay his trial,

which is reflected in the trial court’s findings. See id. at 34. We, like the Hester court,

“are wary of creating incentives for defendants to use a request for self-representation as

a subterfuge when they lack a genuine desire or intent to represent themselves.” Id.

Accordingly, we conclude that the Defendant is not entitled to relief on this issue.

II. Admission of Prior Bad Act Evidence. The Defendant also argues that the

trial court abused its discretion in allowing the State to introduce evidence through

several witnesses that the Defendant sexually abused BG, the daughter of victim Stanley

Goodman, thereby providing a motive for the Defendant to kill the Goodmans. Although

the Defendant concedes that the trial court substantially complied with the procedures

required under Rule 404(b), he argues that the court “disregarded” the Tennessee

Supreme Court’s opinion from his first appeal and claims that just as in his first trial, the

details of his “alleged sexual abuse” of BG should have been excluded under Rule 403

because “unfair prejudice substantially outweighed any probative effect.” See Sexton,

368 S.W.3d at 400-09. The Defendant asserts that on retrial, despite the defense’s

objection, “the State presented testimony at trial through multiple witnesses that went

into great detail of the sexual misconduct of the [D]efendant” and that “[j]ust as in [his]

original trial . . . , the recitation of the specific details of the alleged sexual abuse should

have been excluded under Rule 403[,] as the amount of unfair prejudice substantially

outweighed any probative effect.”

In response, the State asserts that the evidence at issue established that the

Defendant told BG he would kill her father if she revealed the sexual abuse, that BG later

revealed the sexual abuse to her father, that the Defendant discovered BG’s revelation,

and that less than one week later, BG’s father and step-mother were murdered. The State

- 24 -

pursued a theory at trial that the Defendant killed BG’s father and step-mother in

retaliation after BG told her father that the Defendant sexually abused her. Consequently,

the State argues that the evidence of sexual abuse “was highly probative of motive and

carried little danger of unfair prejudice.” The State also asserts that although establishing

the Defendant’s motive to commit the killings was not required, it was important

evidence because there was little physical or direct evidence presented at trial. The State

also contends that while it “had compelling evidence from multiple witnesses” that the

Defendant had confessed to these crimes, “the jury might have been skeptical” of this

evidence “if there was no explanation as to why [the] Defendant might have killed

Stanley and Terri Sue Goodman.” Although this is an extremely close issue, we conclude

that the trial court did not abuse its discretion in admitting evidence that the Defendant

sexually abused BG and then told BG that he would kill her father if she revealed this

abuse. Nevertheless, even if the trial court erred in admitting this evidence in the

Defendant’s retrial, we can easily conclude that this error was harmless in light of the

overwhelming evidence of the Defendant’s guilt presented at trial, particularly the proof

showing that the Defendant confessed to four different individuals that he had killed the

Goodmans.

Evidence is considered relevant if 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. Evidence which is

not determined to be relevant is inadmissible. Tenn. R. Evid. 402. In addition,

“[a]lthough relevant, evidence may be excluded if its probative value is substantially

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

jury, or by considerations of undue delay, waste of time, or needless presentation of

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

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

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

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

on whether evidence is relevant and whether relevant evidence is sufficiently probative to

be admissible is reviewed by the appellate court for an abuse of discretion. State v.

Brown, 373 S.W.3d 565, 573 (Tenn. Crim. App. 2011) (citing State v. Forbes, 918

S.W.2d 431, 449 (Tenn. Crim. App. 1995)).

Rule 404(b) prohibits admission of evidence of a defendant’s character offered for

the purpose of proving that he or she acted in conformity with that character except when

it may be relevant to the defendant’s motive, intent, guilty knowledge, identity of the

defendant, absence of mistake or accident, a common scheme or plan, completion of the

story, opportunity, and preparation. See Tenn. R. Evid. 404(b); State v. Berry, 141

S.W.3d 549, 582 (Tenn. 2004). Evidence of other crimes, wrongs, or bad acts may be

admissible for these purposes if the following conditions are met:

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(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).

“In Tennessee, the admissibility of other-acts evidence will be decided either on a

Rule 401/403 analysis, or a Rule 404(b) analysis, depending on whether the evidence

reflects upon the character of the accused.” State v. James, 81 S.W.3d 751, 759 (Tenn.

2002). While the balancing test for Rule 403 favors admission because evidence is

excluded only when the probative value is substantially outweighed by the danger of

unfair prejudice, “Rule 404(b) constitutes a more restrictive admissions test, excluding

evidence more frequently than the test in Rule 403.” Id. at 758 n.6.

This court reviews a trial court’s admission of evidence governed by Rule 404(b)

for an abuse of discretion so long as the trial court substantially complies with the above

requirements; otherwise, this court’s review is de novo. State v. DuBose, 953 S.W.2d

649, 652 (Tenn. 1997). A trial court abuses its discretion “‘when it causes an injustice to

the party challenging the decision by (1) applying an incorrect legal standard, (2)

reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly

erroneous assessment of the evidence.’” State v. McCaleb, 582 S.W.3d 179, 186 (Tenn.

2019) (quoting Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)).

In McCaleb, the Tennessee Supreme Court discussed the likelihood that a court’s

decision will be reversed on appeal under an abuse of discretion standard of review:

The abuse of discretion standard of review envisions a less rigorous review

of the lower court’s decision and a decreased likelihood that the decision

will be reversed on appeal. It reflects an awareness that the decision being

reviewed involved a choice among several acceptable alternatives. Thus, it

does not permit reviewing courts to second-guess the [trial court] . . . or to

substitute their discretion for the [trial] court’s. The abuse of discretion

- 26 -

standard of review does not, however, immunize a lower court’s decision

from any meaningful appellate scrutiny.

Id. (emphasis added) (quoting Lee Med., Inc., 312 S.W.3d at 524); see White v.

Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999) (noting that because

“discretionary decisions involve a choice among acceptable alternatives, reviewing courts

will not second-guess a trial court’s exercise of its discretion simply because the trial

court chose an alternative that the appellate courts would not have chosen”). “[I]f the

reviewing court determines that ‘reasonable minds can disagree with the propriety of the

decision,’ the decision should be affirmed.” McCaleb, 582 S.W.3d at 186 (quoting State

v. Harbison, 539 S.W.3d 149, 159 (Tenn. 2018)). The McCaleb court then reiterated

that:

[t]o avoid result-oriented decisions or seemingly irreconcilable precedents,

reviewing courts should review a [trial] court’s discretionary decision to

determine (1) whether the factual basis for the decision is properly

supported by evidence in the record, (2) whether the [trial] court properly

identified and applied the most appropriate legal principles applicable to the

decision, and (3) whether the [trial] court’s decision was within the range of

acceptable alternative dispositions.

Id. (quoting Lee Med., Inc., 312 S.W.3d at 524).

Prior to trial, the defense filed a motion to exclude testimony of prior sexual

assault allegations, investigation, and charges against the Defendant, including any

testimony by Hope Tharp. In its response to this motion, the State argued that the

Tennessee Supreme Court’s opinion from the Defendant’s first trial on this issue held that

“[t]he sexual abuse was never ruled inadmissible, only the details as relayed by Ms.

Tharp and only due to them being cumulative as to motive in light of the admission of

other statements during the investigations and regarding the use of sexual abuse as a

motive.” The State also asked that the defense’s motion be denied and that a proper Rule

404(b) hearing be held to determine the admissibility of the specific testimony at issue.

Later, the defense filed a motion to exclude statements by the Defendant, and the State

filed a response, asserting that the Tennessee Supreme Court’s opinion from the

Defendant’s first trial on this issue held that only the hearsay testimony of Ms. Tharp was

inadmissible and only in so far as it was cumulative to the Defendant’s own statements to

Tharp as well as the testimony offered by other witnesses regarding the Defendant’s

motive to kill the Goodmans.

At the pre-trial Rule 404(b) hearing, Carrie Trew testified that she was BG’s first

grade teacher in Bradley County. As a teacher, Trew became concerned because BG was

- 27 -

“very withdrawn” and was a “very, very shy” student who rarely talked to anyone. Trew

said that in the spring of 2000 she began worrying about BG after observing several

bruises on BG’s arms. Trew said that BG eventually made some allegations against the

Defendant, which led to DCS coming to the school to investigate .

Hope Tharp, a team leader for DCS, testified that she first received a referral about

the Defendant sexually abusing BG in March 2000 from Scott Count. Tharp said this

referral was still open on May 16, 2000, when DCS received a second referral from a

school in Bradley County about the Defendant’s sexually abusing BG on the night of

May 15, 2000. When investigating this second referral, Tharp formally interviewed BG,

who provided “[e]xtremely specific” details of the Defendant’s sexual abuse of her. She

noted that although BG, BG’s mother, and BG’s brother appeared as requested at the

DCS office, the Defendant and the Defendant’s daughter, BS, did not appear at that time.

Tharp stated that she later interviewed the Defendant, who denied the sexual abuse

allegations and claimed they were invented by BG’s father, Stanley Goodman, or BG’s

older sister. The Defendant asserted he had received a phone call from Stanley Goodman

in February 2000, wherein Goodman claimed to have a tape of BG describing how the

Defendant had sexually abused her, and the Defendant believed that this was why he was

being interviewed by DCS. She noted that as a result of her investigation, the three

children in the Defendant’s home were placed in foster care. Tharp said that after

interviewing the Defendant, she made the Defendant an appointment to talk to Detective

Alvarez on May 22, 2000. At that point, the State interjected that the indictment in this

case charged the Defendant with murdering Stanley Goodman and his wife, Terri Sue, on

May 20, 2000. Tharp confirmed that the Defendant never appeared for his interview with

Detective Alvarez on May 22, 2000. In response to questioning from the trial court,

Tharp said that with the March 2000 referral, BG did not provide a statement that

anything happened to her, but with the May 2000 referral, BG described what the

Defendant did to her, which resulted in all the children in the Defendant’s home being

placed in foster care.

BG, who was twenty-eight years old as of the time of this Rule 404(b) hearing,

testified that the Defendant was married to her mother, Sherry Farmer, from 1997 to

approximately 2001. In 2000, when BG was seven years old, she lived with the

Defendant, her mother, her older sister, her older brother, and her step-sister, BS. BG

described several instances of physical and sexual abuse by the Defendant that occurred

“countless times” on a “weekly” basis. She eventually told her father about the

Defendant’s abuse of her in the spring of 2000, and her father made a tape of her

detailing the Defendant’s abuse.

- 28 -

BG also testified about a specific instance, relevant to this appeal, when she was

headed downstairs to get a hairbrush and was passed by her step-sister, BS, who was

crying. BG said the Defendant told her to come downstairs, which made her “nervous”

because she “knew what was going to happen” because it “had happened countless

times.” When BG got downstairs, the Defendant was angry about BG’s telling her

teacher about several instances of the Defendant’s sexual abuse. BG said she sat on the

couch next to the Defendant, and then the Defendant made her “lean over forcefully and

perform oral sex on him.” BG said that although she tried to resist and was crying, the

Defendant made her do it until the Defendant ejaculated into her mouth. Afterward, the

Defendant shoved her down and told BG, “Don’t tell again or else I’m going to kill your

dad.” BG recalled going back upstairs crying and then lying down with BS. BG said she

and BS each knew the Defendant was sexually abusing the other. The next morning, BG

told her teacher, Ms. Trew, what had happened and how the Defendant had threatened to

kill her father. BG said that she never saw her father again because the Defendant

“murdered [her] dad.” She also asserted that she had never recanted her statement that

the Defendant sexually abused her. BG acknowledged telling Detective Alvarez during

an interview on May 18, 2000, that the Defendant said he would kill her father if she

revealed that the Defendant was sexually abusing her. She also said that during her July

17, 2000 interview with the Child Advocacy Center, she told the interviewer Lee Jackson

that the Defendant told her that if she told her father about the sexual abuse, “he would

kill him.” BG also told Jackson during a September 2000 interview that the Defendant

told her that she would never see her father again if she told about the sexual abuse

because the Defendant would kill him.

BS, the then twenty-nine-year-old step-sister of BG, testified about several

instances of physical and sexual abuse by her biological father, the Defendant, when she

was a young child, including an incident when the Defendant touched her vagina and

forced her to give him oral sex and two incidents when the Defendant penetrated her

vagina with his penis. Of particular relevance to this appeal, BS also testified about the

last time the Defendant abused her, when the Defendant called her downstairs, penetrated

her vagina with his penis, forced BS to give him oral sex until he ejaculated into her

mouth and then threatened to kill her if she told anyone. After this incident, BS, who was

crying, went upstairs and passed BG, who was going downstairs. When BG went

downstairs, BS stayed on the stairs and listened to what was happening below. Although

she could not see the Defendant and BG, she heard the Defendant tell BG to “put it in her

mouth.” When BG said, “No,” BS heard the Defendant slap BG, which caused BG to

cry, and then she heard the Defendant threaten her. BS said that BG was crying when she

went back upstairs. BS also testified about overhearing an argument between the

Defendant and Sherry Farmer, wherein the Defendant admitted he molested his kids, and

Farmer immediately denied it.

- 29 -

At the conclusion of this hearing, the trial court found that the allegations of the

Defendant’s ongoing sexual abuse of BG, which would constitute the crime of rape of a

child, a Class A felony, were relevant to issue of motive, stating:

The [c]ourt concurs in the contention that motive is an issue and that this

testimony is relevant to the issue of motive. The evidence explains why the

[D]efendant would commit these murders. In short, if [Stanley Goodman]

were to testify as [the Defendant] allegedly believed he might, [the

Defendant] would be in prison for a great part of his life. The evidence also

explains why [the Defendant] allegedly told [Preston] Adams that he shot

the victim to dispose of incriminating evidence. The evidence of the

motive also refutes the alibi defense raised by the [D]efendant. The

evidence also explains the circumstantial evidence offered by the State.

After summarizing the testimony provided by Carrie Trew, Hope Tharp, BG, and

BS, the court found that the evidence of the Defendant’s sexual abuse of BG, including

the offense of rape of a child, was established by clear and convincing evidence. Lastly,

in weighing the probative value of this evidence against the danger of unfair prejudice,

the court recognized that because the case involved little direct evidence, motive would

be “a crucial issue in the case.” Accordingly, the trial court held that the evidence of the

Defendant’s sexual abuse of BG was “necessary to establish motive” to commit the

murders in this case and that “the danger of unfair prejudice d[id] not outweigh the

probative value of the evidence.”

In response to the Defendant’s argument that this evidence was inadmissible under

Rule 403, the trial court found that for the reasons it had previously given that “the

probative value [wa]s not substantially outweighed by the danger of unfair prejudice.”

Ultimately, the trial court granted the State’s motion and denied the Defendant’s motion,

concluding “in short” that “the allegations of sexual misconduct on the part of the

[D]efendant as it relates to [BG] will be admissible at trial.” The trial court then entered

an order stating that a material issue existed other than conduct conforming with a

character trait; the evidence of the Defendant’s commission of rape of a child against BG

was clear and convincing; and the probative value of the evidence of BG’s sexual abuse

outweighed the danger of unfair prejudice. The trial court also held that the testimony of

BS was limited to that portion that corroborated the sexual abuse of BG by the Defendant

and that the Defendant’s statements made in connection with the investigation of sexual

abuse against BG were admissible.

At the motion for new trial hearing, the trial court considered the Defendant’s

claim that it erred in allowing substantive evidence of the Defendant’s alleged sexual

- 30 -

abuse of BG to be presented to the jury through the testimony of multiple witness.

Specifically, the court held:

[T]estimony that the [D]efendant sexually penetrated then-seven-year-old

[BG] constitutes the offense of rape of a child. The [D]efendant would be

in prison for a great part of his life if convicted [of the rape of a child

offense]. Stanley Goodman, one of the homicide victims, was the father of

[BG]. Stanley Goodman may have testified regarding the [Defendant’s]

sexual abuse [of BG]. His testimony could have assisted in the prosecution

of the [D]efendant. The impending investigation and potential subsequent

prosecution may be considered as a motive for murder. Motive is a crucial

issue in the case. There’s little direct evidence, so the danger of unfair

prejudice is outweighed by the probative value. Evidence of the

[D]efendant’s motive refutes the alibi defense and bolsters the

circumstantial evidence presented by the State.

After reiterating that it made the required findings under Rule 404(b), the trial

court ultimately denied relief on this claim, holding that based upon the evidence

presented at the January 2022 trial, the “[aforementioned] reasons still exist and are a

proper basis for allowing this testimony of the prior conduct of [the Defendant] for the

purpose of establishing motive in killing Mr. and Mrs. Goodman.”

Despite the Defendant’s claims about the applicability of Rule 403, we conclude

that the trial court correctly applied Rule 404(b) to determine the admissibility of the

Defendant’s “other acts” evidence because this evidence “reflects upon the character of

the accused.” James, 81 S.W.3d at 759. We also note the record shows, and the

Defendant concedes, that the trial court substantially complied with the requirements of

Rule 404(b) before admitting evidence regarding the allegations that the Defendant had

sexually abused BG. Consequently, we review the court’s ruling under the abuse of

discretion standard.

Based on his appellate brief, the Defendant’s main challenge seems to be the trial

court’s weighing of probative value against the unfair prejudice. Therefore, we must

consider whether the trial court properly admitted proof of the sexual abuse allegations

under the balancing test of Rule 404(b)(3). Id.

The State’s theory at trial was that the Defendant killed BG’s father and step-

mother on May 20, 2000, in retaliation for BG’s revealing that the Defendant sexually

abused her on May 15, 2000. Accordingly, evidence of the May 15 incident of sexual

abuse was essential in establishing the Defendant’s motive to commit the killings of BG’s

- 31 -

father and step-mother and in establishing the Defendant’s identity as the perpetrator in

this case.

First, the Defendant asserts that just as in his first trial, the motive for the murders

was adequately established through testimony of several witnesses that the Defendant

was under investigation for sexual abusing his children. He argues that because he was

willing to stipulate that he was being investigated for sexually abusing his children, the

testimony from several witnesses about the details of the alleged sexual abuse was

“cumulative at best” and served the purpose of “plac[ing] before the jury the criminal

propensity of the Defendant.”

With regard to this point, we note that “it is well settled that the prosecution is free

to reject the offer of a defendant to stipulate certain facts.” Id. at 761 (citing State v.

Smith, 644 S.W.2d 700, 701 (Tenn. Crim. App. 1982) (concluding that “the State should

not be forced into a stipulation, designed to keep relevant but damaging evidence from

coming before the jury, when the evidence is not unfairly prejudicial”); State v. Griffis,

964 S.W.2d 577, 595 (Tenn. Crim. App. 1997) (reiterating that “[a] stipulation requires

the acquiescence of all parties to the litigation”)). However, it is also clear that “an

accused cannot marshal the evidence of the State by simply offering to stipulate to a fact

for the purpose of barring the State from introducing admissible, demonstrative evidence

the accused does not want the jury to see.” Griffis, 964 S.W.2d at 595. Consequently, an

offer to stipulate evidence “does not render that evidence irrelevant under Rule

404(b)(2).” James, 81 S.W.3d at 761. Here, we conclude that the State was not required

to accept the Defendant’s stipulation that he was being investigated for sexual abusing his

children. We also conclude that the State’s evidence, which consisted of direct testimony

from BG (and corroborating direct testimony from BS) that the Defendant sexually

abused BG on May 15, 2000, and that the Defendant threatened to kill her father if she

revealed this abuse just five days before her father and step-mother were killed, provided

particularly strong evidence of the Defendant’s motive and his identity as the perpetrator

of the killings. See id.

Second, the Defendant argues that on retrial, the trial court “disregarded” the

Tennessee Supreme Court opinion from his direct appeal of his original trial, allowing the

State to present proof from multiple witnesses who provided great detail regarding the

Defendant’s sexual abuse of BG. Referencing the State’s argument that the direct

testimony on retrial from BG and BS regarding the May 15, 2000 incident of sexual

abuse was distinguishable from the hearsay testimony offered by Hope Tharp in his first

trial, the Defendant argues that “substantive evidence of the alleged prior sexual

misconduct was presented to the jury in complete disregard of the previous ruling of our

Supreme Court.” See Sexton, 368 S.W.3d at 400-09.

- 32 -

In Sexton, the Tennessee Supreme Court granted the Defendant’s appeal after the

Court of Criminal Appeals affirmed the judgments from his first trial. Id. at 378. As one

of the issues raised, the Tennessee Supreme Court considered the Defendant’s claim that

the trial court failed to comply with Rule 404(b) regarding whether to allow Hope Tharp

to testify concerning the details of BG’s allegations that the Defendant sexually abused

her. Id. at 400. The court recognized that the trial court had not substantially complied

with Rule 404(b), and therefore the trial court’s ruling was not entitled to deference

because it failed to receive the proposed testimony from Tharp at the hearing and failed

to state on the record whether the prior act was proven by clear and convincing evidence.

Id. at 404. The court, recognizing that BG did not testify at the Rule 404(b) hearing, held

that “[b]ecause of the inherent unreliability of Ms. Tharp’s hearsay recollections of

B.G.’s allegations, the proof does not meet the clear and convincing standard and, as a

result, should have been excluded under Rule 404(b).” Id. at 405. After noting the

extremely inflammatory nature of sex-related bad acts involving child victims, the court

held that the unfair prejudicial effect of the alleged sex abuse outweighed the probative

value of this evidence as to motive:

Because the statements of the Defendant to Ms. Tharp, and the testimony of

Officer Millsaps, Detective Alvarez, Adams, Mason, and Ms. Swallows

during the course of the trial—as outlined in the factual summary—

established the Defendant’s motive to kill, the hearsay testimony offered by

Ms. Tharp, while compelling in its detail, was cumulative on the issue of

motive. For that reason, the probative value of Ms. Tharp’s hearsay

testimony as to the Defendant’s guilt of the murders of the Goodmans was

not essential to the State’s case. Thus, contrary to the requirements for

admission under Rule 404(b), the unfair prejudicial effect of the alleged sex

abuse outweighed the probative value as to motive.

Id. at 406-07. The court’s only reference to Rule 403 was in addressing the Defendant’s

claim that Tharp’s hearsay testimony regarding the sexual abuse allegations made by BG

violated his right of confrontation. With regard to this specific issue, the Tennessee

Supreme Court held:

In summary, because the motive for the [murders of Stanley and Terri Sue

Goodman were] clearly established through other of the State’s witnesses,

the probative value of B.G.’s allegations, as related by Ms. Tharp, insofar

as it established motive, was cumulative. In consequence, the

inflammatory nature of the allegations of sexual misconduct was such that

Ms. Tharp’s recitation of their details should have also been excluded under

a Rule 403 analysis.

- 33 -

Id. at 409.

We agree with the State that the Rule 404(b) evidence was presented very

differently at the Defendant’s second trial. Initially, we note that on retrial the trial court

substantially complied with the Rule 404(b) requirements, which means that we must

review the trial court’s ruling for an abuse of discretion, rather than the de novo review

used in the Defendant’s first appeal. On retrial, the prior bad act evidence, both at the

Rule 404(b) hearing and at trial, consisted of the direct testimony of BG and BS, rather

than just the hearsay testimony of DCS employee Hope Tharp. In addition, on retrial,

BG’s testimony about the Defendant’s May 15, 2000 sexual abuse of her was then

corroborated by BS’s testimony as well as Tharp’s and Trew’s testimony. Consequently,

the proof of the prior bad act on retrial was established by clear and convincing evidence,

as supported by the detailed findings of the trial court. By presenting the direct testimony

of BG (and BS) as to the specific incident of sexual abuse, as opposed to just hearsay

testimony from Tharp, the State presented substantially more credible and more probative

evidence on the issue of the Defendant’s motive to kill BG’s father and step-mother.

Finally, because the allegations of sexual abuse had significantly greater probative value

on retrial, the probative value of this evidence was not outweighed by the danger of

unfair prejudice. See State v. Moss, 13 S.W.3d 374, 382-84 (Tenn. 1999) (concluding

that the trial court did not abuse its discretion in admitting prior bad act evidence showing

the defendant’s motive and intent to shoot his wife in order to collect insurance proceeds

and to regain access to his minor daughter where the trial court substantially complied

with the requirements of Rule 404(b), the defendant’s minor daughter testified at the Rule

404(b) hearing and trial about incidents of inappropriate sexual conduct by the defendant,

the daughter’s testimony was corroborated by the defendant’s journal, and the trial court

provided a limiting instruction at the time this evidence was presented and in its general

charge).

We agree with the State that evidence regarding the Defendant’s motive for

committing the killings in this case was particularly significant, especially given that

there was no physical evidence connecting the Defendant to the offenses. While the State

presented testimony from several witnesses to whom the Defendant had confessed to

these crimes, we agree that the jury might have been suspicious of such testimony if the

State had not provided a reasonable explanation for why the Defendant killed the victims

in this case. The evidence of the Defendant’s sexual abuse of BG and his threat to kill

her father just five days prior to the killings established with particularity not only the

Defendant’s motive to commit the killings but also the Defendant’s identity as the

perpetrator. Accordingly, it had extremely high probative value.

We also conclude that this evidence, under the particular circumstances here, had a

relatively low danger of unfair prejudice. While proof regarding sexual abuse of child

- 34 -

victims is always inflammatory to some degree, the trial court took several steps at trial to

lessen the inflammatory effect of this evidence. In particular, the trial court only allowed

BG to testify to the one incident of sexual abuse by the Defendant that occurred on May

15, 2000, rather than the Defendant’s repeated sexual abuse of her. In addition, the trial

court limited BS’s testimony to what she observed about the Defendant’s sexual abuse of

BG on May 15, 2000, even though BS could have testified that the Defendant had been

continually sexually abusing BS and BG over a lengthy period of time. Lastly, the trial

court specifically instructed the jury that while it could not consider the evidence of

sexual abuse to prove the Defendant’s “disposition to commit such as crime as that on

trial,” it could consider this evidence “if it tend[ed] to show a motive of the [D]efendant

for the commission of the offense[s] presently charged.” The trial court also repeated this

instruction to the jury during its jury charge. An appellate court must presume that the

jury followed the instructions given by the trial court. Berry, 141 S.W.3d at 584 (citing

State v. Gilliland, 22 S.W.3d 266, 273 (Tenn. 2000)). Given all these factors, we agree

with the State that “[o]n balance, the probative value of the evidence outweighed its

danger of unfair prejudice, or, at the very least, reasonable minds could disagree on the

issue, meaning that the trial court acted within its discretion.”

Here, the trial court determined, after complying with the Rule 404(b)

requirements, that the evidence of the Defendant’s sexual abuse of BG on May 15, 2000,

as well as his threat that he would kill her father if she revealed this sexual abuse was

admissible to prove the Defendant’s motive to kill the Goodmans, that this evidence was

established by clear and convincing evidence, and that the probative value of this

evidence was not outweighed by the danger of unfair prejudice. While the trial court’s

ruling on this issue is not the only ruling that we would have considered within the

bounds of its sound discretion, we conclude that the trial court’s ruling was a reasonable

choice among several acceptable alternatives. See McCaleb, 582 S.W.3d at 186. Here,

the trial court properly identified and applied the most appropriate legal standard to this

issue, reached a logical and reasonable decision, and based its decision on a correct

assessment of the evidence. Id. (citing Lee Med., Inc., 312 S.W.3d at 524). For all these

reasons, we conclude that the trial court’s decision to admit this Rule 404(b) evidence

was within the limits of the trial court’s sound discretion. See id. at 198.

Lastly, we note that even if the trial court erred in admitting this Rule 404(b)

evidence, this error was harmless. A violation of an evidentiary rule, such as Rule

404(b), does not require reversal if the error “‘was more probably than not harmless.’”

State v. Martin, 964 S.W.2d 564, 568 (Tenn. 1998) (quoting United States v. Barrett, 703

F.2d 1076, 1081-82 (9th Cir. 1983)). “Harmless error analysis applies to virtually all

evidentiary errors other than judicial bias and denial of counsel.” James, 81 S.W.3d at

763 (citing Wilson v. State, 724 S.W.2d 766, 769 (Tenn. Crim. App. 1986)). Moreover, a

judgment of conviction “shall not be set aside unless, considering the whole record, error

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involving a substantial right more probably than not affected the judgment or would

result in prejudice to the judicial process.” Tenn. R. App. P. 36(b). Therefore, when

considering the effect of such an error on the trial, this court “will evaluate that error in

light of all of the other proof introduced at trial.” James, 81 S.W.3d at 763 (citing

Gilliland, 22 S.W.3d at 274).

We note that four individuals—Sherry Farmer, Christy Swallows, Preston Adams,

and Danny Mason—all testified that the Defendant confessed to them that he had killed

the Goodmans. Farmer and Adams also said the Defendant admitted that he had worn a

sweat suit to the Goodmans’ home, which he burned, and that he had disposed of the rifle

he used in the killings. Farmer confirmed that when the Defendant picked up her from

work on May 20, 2000, she noticed a bag containing a black sweat suit inside the car that

had not been there that morning. A receipt from Dollar General for the purchase of a

sweatshirt and sweatpants on May 20, 2000, was later found in the Defendant’s car.

Lieutenant Alvarez testified that the Defendant told him that BG’s allegations of sexual

abuse were “cooked up by the Goodmans.” When Lieutenant Alvarez informed the

Defendant that the Goodmans were coming to Bradley County on May 22, 2000, to

petition for custody of the children, he heard the Defendant announce that “if he was

going to jail,” it would not be “for sexual abuse or molestation” but “for murder.”

Deputy Millsaps also overheard the Defendant tell his wife, “If I go to jail for anything,

it’ll be for murder.” Danny Mason testified that the Defendant, the day before the

murders, obtained a firearm of the same caliber used to kill the Goodmans. EG testified

that the Defendant knew that she went to the races with her aunt every Saturday night,

including May 20, 2000, and that Stanley Goodman always left the front door to the

house unlocked for her.

In light of the overwhelming evidence of the Defendant’s guilt, we conclude that

the admission of BG’s sexual abuse allegations, even if error, did not “more probably

than not affected the judgment” or “result in prejudice to the judicial process.” Tenn. R.

App. P. 36(b); see State v. Clark, 452 S.W.3d 268, 288 (Tenn. 2014). We can

comfortably conclude that even if admission of this Rule 404(b) evidence was error, it

constituted harmless error in light of the other evidence of the Defendant’s guilt

presented at trial. Accordingly, we affirm the trial court’s judgments in this case.

CONCLUSION

We hold that the trial court did not commit constitutional error in denying the

Defendant’s request for self-representation. In addition, we hold that the trial court did

not abuse its discretion in admitting the Rule 404(b) evidence and that even if the trial

court erred in admitting this evidence, this error was harmless in light of the

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overwhelming evidence of the Defendant’s guilt. Therefore, the judgments in this case

are affirmed.

__________________________________________

CAMILLE R. MCMULLEN, PRESIDING JUDGE

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