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### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE July 17, 2001 Sess

ion

STATE OF TENNESSEE v. TERRY LEE ROBINSON

Appeal from the Criminal Court for Davidson County No. 98-B-1539 Cheryl A. Blackburn, Judge

No. M2000-00995-CCA-MR3-CD - Filed October 25, 2001

The defendant, Ter

ry Lee Robinson, appeals

from his conviction

by a jury for first degree murder, for which he was sentenced to life imprisonment. He contends that ( 1) the evidence was insufficient

, (2) the trial court erroneously prohibited a defense expert from testify ing as to the victim’s cause of death, (3) the trial court

admitted evidence of thedefendant’s pri or conduct in viola

tion of Tenn. R. Evid. 404(b), ( 4) he was denied a fair trial because the jury was composed of ten women and two
men, and (5) he was denied a fair tr ial because a te

levision movie

about a man fatal

ly poisoning

his wife with cy anide aired during the trial. Although we hold that the trial court erred rega rding the defendant’s expert and

the prior conduct e vidence, we conclu

de the err ors were harmless . Weaffirm the judgment of conviction.

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

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and J OHN E VERETT W ILLI

AMS , J., joined.

Edward J. Gross, Nashville, Tennessee, for the appellant, Terry L ee Robinson.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney Ge

neral; Victor S. Johnson, II

I, District Att

orney Gene

ral; and Roger D. Moore, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Th is case r ela tes to t he D ecem ber 1 997 deat h of Leno ra R obi nso n, t he d efen dan t’s thi rtythree-ye ar-old wife. The victim’ s m other, Charlie York, testified that the victim and defendant married on September 1, 1 989. She said that the couple did not have children together, but the defendant’s young daughter, Brittney , lived with them. She stated that before t he marr iage, the defendant had worked for an exterminating company and some collection ag encies. Mrs. York-2-

testified that in April 1996, the victim and the defe nda nt s tar ted the ir o wn c oll ect ion agen cy. She said that the victim confide

d to her that the co

uple had serious f

inancial problem

s. Mrs. York said that in the months before her daughter’s death, the victim revealed that she and the defendant were heavily in debt and that the defendant wanted to file bankruptcy. She said that while most

of the couple’s credit cards were in the victim’s name, the victim did not want to file bankr

uptcy beca

use it would ruin her credit. Mrs. York testified that in addition to financial prob

lems, the victim and the defendant were

having se

xual probl ems, and the victim w as not happy

in the marriage . Mrs. York stated that the defendant acted distant during the month of December 1997.

Mrs. York

testified that the victim started feeling sick on Friday, December 19, 1997. She said that although the

victim was ill, on Sund

ay, Decem

ber 21, the victim fixed C hristmas dinner at the victim’s home for her father and stepmother. Mrs. York said that later that evening, she called to check on her daughter, but the victim was too weak to talk on the telephone. She stated that the next morning, the victim called M rs. York and told he

r that she had bee

n sick all night.

Mrs. York said she went over to the victim’s house, told the victim that she had to seea doctor, and suggested that they go to the emergency

room. Mrs. York testified that although she agreed to see a doctor, the victim said the defendant wanted her to go to Baptist Centra Care instead of the hospital. Mrs. York said that she and th

e defendant took

the victim to Baptis

t.

Mrs. York t estified tha t a Baptist Centra Care doctor diagnosed the victim with viral syndrome, gave her a Phenergan shot to alleviate nausea, and gave her three prescriptions to fill. She said that the doctor did not refer the victim to a hospital and that she and the defendant took the victim home. She stated that she stayed with her daughter all day , cleaning thebathroom and bed linens from wherethe victim had bee n sick the night be

fore. She said tha

t the victim slept all

day andthat the defendant ran errands and was in and ou t of the h ouse. Mrs. York said that she went homeabout 4:30 p.m., but she forgot her cell phone and returned to the victim’s home to get it. She testified that she also took the defendant’s daughter home with her. Mrs. York stated that when she left, the victim and the defen dant were alone in the house. She said that she called the defendant about 10:00 p.m. to check on the victim.

Mrs. Yor k te sti fie d th at e arl y the next morning, December 23, 1997, the defendant telep honed and to ld her, “Charlie, I think we’ve lost her.” Mrs. York said that she screamed and went over to the defendant ’s house. She stated that the police and an ambulance were there. She said that she went into the victim’s bedroom, where medical technicians were working on the bod y, andsaw that

the victim had a brown substance coming out of her nose that had not been present the night before. She stated that the defendant was present and dressed in his pajamas.

Mrs. York testifie

d that after the v

ictim’s body w

as removed from t

he house, she talk

ed to the defendant about

funeral arrangements. She said that they ag reed that she would contact a funeral director and that she asked the defendant what type of service he wanted. Mrs. York stated that the defendant said that he did not want religion or music at the f un eral and wanted only a graveside service. She stated that alth ough the defend

ant wanted to bury

the victim

the nex t da y, he agreed to wait until December 26 to give the victim’s sister time to travel to Nashville. She said that after the-3-

funeral, the defendant did not seem to want anyone in his house. She stated that if anyone brought food to his house, he told them to take it to her home. She said that if she fixed him a meal, he would either pick it up or meet

her at the front door and

take it. Mrs. York stated that she never saw the defendant grieve. She said that she talked with Detective E. J . Bernard of th e Nashville Metropolitan Police Department and that she knew the police were investigating thevictim’s death. She testified that her husband continued t o have contact with the defendant. She stated that the victim was about five fe

et five inches ta

ll, weighed one h

undred fifty

pounds, smo

ked one to

two packs of cigarettes a day, and occa sionally drank beer.

Ken York, the victim’s stepfather, gave testimony about the victim’s death that was substantially

sim ila r to Cha rli e Yo rk’ s te sti mon y. In addition, he testified that the victim and the defendant had a stormy marriage. He said that the defendant told him

that the victim was d

ifficult to live with and that it was impossible to get along with her. Mr. York stated that the de

fendant did notstay gainfully employ ed and that he and Mrs. York loaned the defendant

and the victim money on several occa

sions. He said

they most recently loaned the defe ndant and the victim money for a
new car. He said the car and most of the credit cards were in the victim’s name. Mr. York stated that in the fall of 1997, the vi

ctim began pres suring the defe ndant toget a job and help her with the bills and that their marriage rapidly deteriorated.

Mr. York testified that he and Mrs. York were close to the victim and the defendant and that the two couples saw each other several times a week. He said tha t soon aft er the victim’s death, Detective Bernard of the Nashville Metropolitan Police Department told him the police were investigating the victim’s death as a homicide. Mr. York stated that even though he knew the police

were going to arrest the defendant, he remained the defendant’s close fr iend. He s aid that the defendant told him that he had n

ot had sex with the victim since early December and had a gr eat needfor sex . Mr . York said that the defendant told him

that he had sex with o

ther women in November

and December 1997 and that he had sex with

a woman on January 23, 1998, in the marital bed. Mr. York stated that once the defendant learned that he was under investigation, he asked Mr. York to help convince Mrs. York and the victim’s father to agree to a plea barg ain.

Bob Williams, the victim’s father, testified that his new wife w as close to the vic

tim. He said that on Sunday, December 21, 1997, they we nt to the victim’s hou se for Ch ristmas dinner, which the victim cooked but was too sick to eat. He said that he heard of his daughter’s death the morning of December 23 and that

when he went to the house, the defendant was upset. He acknowledged that diabetes ran in hi

s family and

that his daughter

, Theresa, had it

.
Theresa Mettlen, the v ictim’s sister, testified t hat although she

was not close to the

defendant, she stayed a

t his house while he

r family wa

s in Nashville for t

he victim’s funer

al. She did

no t believe that the defenda

nt seemed very

upset. She said that one night after the funeral, while she and her husband were wa

tching televisio

n with the defenda

nt, he told them abou

t his sex life with his secondwife, Brittney’s

mother. Mrs. Mettlen said that she thought this was odd considering that the victim had just passed away. On cross-examination, Mrs. Mettl en admitted that the conversation startedwhen she told the defendant that she had found her husband’s “little black book .” She said-4-

the defendant told

her that the victim had found his little black book, too, and he then continued with the conversation about his ex-wife.

Dr. Bradley Rudge testified that he is a phy sician at Baptist Centra Careand saw the victim

on December 22, 19

97. He said the vic

tim complained of headache, cough, nausea, vomiting, and body aches. Hesaid her lungs were clear and her respiratory rate was normal. He said he diagnosed her with viral syndrome, gave her a Phenerga n shot for nausea, and

prescribed some

medications. Dr. Rudge said that he

refers patients

to specialists if ne

cessary or calls an ambulanceif a patient is acutely ill, but that he did not refer the victim to the emergency room because he did not think that her life was in jeopardy.

Detective E. J. Bernard o f the Nashville Metropolitan Police Department
, Homicide Division
, testified as follows: A patrol officer ca l led him to the defendant’s home on the morning of December

23, 1997. When he ar

rived, medical pe

rsonnel and the vic

ti m’s f amily were

present. Detective Bernard went to the victim’s bedroom and saw her lying in bed. The body ha d no visible signs of injury, but the victim had a brown substance co ming out of her

nose and mouth. Years before, Detective Bernard had seen a similar substance c oming out of the nose and mouth of a cyanide-poisoning v ictim. Family members told Detective Bernard that the victim had been sick withflu-like symptoms the day before and that she had been to Baptist Centra C

are for treatme

nt. The defendant told the detective that he had slept in another bedroom and had checked on his wife during the night; but, whe n he got up that m

orning, she was dead. The defe ndant was dresse

d in pajamas, his hair was mussed, and his face was clean but unshaved. Detective Bernard saw no signs of forced entry

to the house, and he

did not search or s

ecure the premi

ses. He walked through the hometo see if he could find medications or narcotics that could have caused the victim’s death, but he found none. He did, however, find a letter that the defendant had written to the v

ictim sometime before her death. Durin

g the autopsy

, Detective Ber

nard detecte

d a sweet smel l coming from the bod y, and he requested that the doctor test for cyanide. On

January 12, 1998, Dr. Emily Ward, who performed

the autopsy,

told him that the victim’s blood tested positive for cyanide. On January 28, 1998, Detective Bernard

searched the defendant’s home and collecte d more letters and

documents. During a second searc

h of the defenda

nt’s home in

February, Detective

Bernard collected various items andsent them to

the Tenness ee Bureau of Inve stigation (TBI) crime lab for cyanide test ing. During his investigation, Detective Bernard also looked for place s that sell cy anide in middle Tennessee. While he found numer ous places that se

ll cyanide or products that contain cy anide, he determined that most places did not keep records of who bought it.

Detective Bernard re ad into evidence three letters that he collected from the house. In the first, undated letter that the detective collected on the day of the victim’s death, the defendant tol d the victim thathe loved her but also wrote, “[It’s] been my experience when

the sex is gone pre

tty much everything

else is also.” I

n the second, unda

ted letter, the vic

tim said that she would leave the defendant andwrote , “We a re in a terri ble si tuati on.” In the final letter, dated August 3, 1997, the victim told the defendant that they could divorce if the defen dant could f

ind a way to a

fford it because “I WILL NOT BE CHEAP!!!!!!!” On cross-examination, Detective Bernard acknowledged that when he told the defendant that a partial aut ops y would be done, it was possible that the defendant requested a full autop sy and that alt hough the detective obtained two search warrants, the-5-

defendant allowed him

to search his house and car without serving them. He said the defendant was cooperative and came downtown when the detective requested.

Agent Louis Kuykendall, a forensic toxicology expert, testified for the state as follows: He is a special agent with the TBI Crime Labor atory and has had training dealing with cy anide. Cyanide is present everywhere in small amounts, including the body . It can enter the

body by inhalation as

a gas, absorption through the skin, and ingestion. To form cyanide gas, which is very toxic, cyanide powder must be mixed with an a

cid. This acid

is simple to obtain and can come from many sources such as car batt

eries, dr ain cleaner, and jewelry cleaner. I t is easy to make cyanide g as, and a gas mask will protect anyone who comes into contact with it. Although the avera ge person could not obtain cyanide, it was commonly used in the exterminating business, espec i all y i n the 1960's and 1970's. Cyanide will

remain good as long as it is kept in a tightl y sealed co

ntainer. Althoug

h most people cannot smell cyanide, about thirty per cent of the population smells it as bitt er alm onds. In early 1998, Detective Bernard contacted Agent Kuykenda ll and told him about a suspected cyanidepoisoning case. He told thedetective to look in the victim’s home for certain liquids and chemicals that could contain cyanide. Detective Bernard sea rched the defendant’s home andcollected various items, including li

quid from a pickle jar, green liquid from a Gatorade bottle, jewelry cleaner, and pills. All of the items tested negative for cyanide.

Andrew Dykeman

testified as follows: He is a forensic technician at the Davidson County Medical Examiner’s Office and ass ist ed D r. W ard w ith the vic tim ’s a uto psy. Dur ing t he au top sy, he smelled a sweet, a

lmond-cherry

-like odor that he

had never smell

ed before. H e did not smell anything bitter. Samples taken from the victim’s body were sealed in a bag, and a courier took them directly to Aegis Laboratories.

Dr. Tim Robert, a forensic toxicology expert, testified for the state as follows: He is the AssistantLaboratory

Director at Aeg

is Analytica

l Laboratori

es, a small, private testing facility that specializes in f oren sic anal ysis . It r ecei ved the vic tim ’s u rin e, b loo d, a nd i nne r eye fluid for routine tests, and on December 24, 1997, sent the fluids to MedTox Laboratories for cyanide test ing. Aegis didnot receive any tissue samples. MedTox reported that the blood specimen contained greater than two micrograms per milliliter of c ya nide. The medical examiner’s office then requested that the blood be retested for cyanide. MedTox did not have asufficient blood s ample for the sec

ond test,

so Aegis sent MedTox another blood tube on January 14, 1998. The second t est reflected one microgram

per milliliter of cyanide. Although the blood samples were drawn from the victim at the

sametime, the differe

nces in the amounts

of cyanide

did not surprise Dr

. Robert because

cyanide is unstable in biological samples and can decompose. In addition, MedTox tested a stained pillowcase, the victim’s gastric contents, and several liquids that had been taken from the residence. All were negativefor cyan

ide. Dr. R obert also reported several chain of custody errors in the sa mples that Aegis sent to MedTox. However, none of the errors af fected the acc

uracy of th

e tests or the resu

lts. On cross-examination, he said that the best way to detect cy anide is to test tissue samples, not blood.

Dr. Harry McCo

y testified a

s a toxicology e

xpert as follows: He is the Laboratory Director for MedTox Laboratories in St. Paul, Minnesota. MedTox receives samples from clients all over the country and tests those samples for drugs an d toxins, in cluding cyanide. On January 5, 1998,-6-

MedTox received sev eral sample s, includi ng a gray-topped blood tube, from Aegis and tested them for cyanide. The blood contained greater than two microg rams per milliliter of cyanide. On January 15, 1998, MedTox rece

ived a second, la

vender-topped b

lood tube from Aeg

is. A second test showed t hat the blood contained one microgram per milliliter of cyanide. Cy anide was not present in an y other samples. When MedTox does not know a specimen’s collection date, the employee entering that information into the computer enters an arbitrary

date. Although c

yanide is ve

ry unstable

in blood and tissues, the victim’s whole blood hadbeen preserved in sodium fluoride. Therefore, her blood was the most imp

ortant specimen,

and testing her t

issues may no

t have been helpf

ul.

John Gerber is an Ass

ociate Medi cal Examiner for Davidson County, and the court found him to be an expert

in forensic patho

logy for th

e state. He said th

at cyanide is normally

present in the body and that

the nonlethal cyanide level in smokers is higher than in nonsmokers. He said that cyanide is lethal at one to fifteen micrograms per milli liter. Dr. Gerber stated that Dr. Ward concluded

that the victim died of cyanide poisoning, and he agreed with her conclusion. He said that Dr. Ward also diagnosed the victim with v iral pneumonia but

that he disagre

ed with the diagn

osis. He stated that while the victim could have been injected with cyanide, no injection marks were found

on the victim’s body. He also testified that finding cyanide in the blood, but not the gastric c

ontents,

was notcontradictory because inhaled cy anide would be present in the blood but not the stomach. He said that while the right side of the victim’s he arthad abnormally high amounts of fatty tissue andher lungs were

heavier than nor

mal, these did

not cause her death. However, he stated that the victim’s glucose level a

t the time of death was very high and that she could have bee n suffering from diabetes. Dr. Gerber stated that tissue samples were not tested

but that it is better to test liquids than tissues.

Dr. Charle s Harlan is a specialist in anatomic, clinical, and forensic pathology. The court found him to be an expert in forensic pathology for the defense. He st ated that the victim was

s uff ering from viral sy

ndrome. He also st

ated that the victi

m had mild to moderat e fatty degeneration of the liver consistent with a number of entities and syndromes. Dr. Harlan testified that although the victim’s blood tested positive for cyanide, there was no evidence of an injection site and no cyanide in the gastric contents to indicate ingestion. He said that if the victim had inhaled cyanide, th

ere would have been hemorrhaging in the lungs. Dr. H arlan said t hat the vic tim’s high glucose level indicated

that she was a dia

betic suffering

from a viral illne

ss. He stated that this viral illness and fat in the live

r and heart showe

d that she died of Re

ye’s Sy ndrome. He testified that pictures of the victim’s lung and liver tissues confirm that she died of Reye’s Syndrome. H e stated that the positive test re

sult for cya

nide in the blood wa

s a lab error, i .e., either the sample was contaminated at

the time it was drawn or

the laboratory

improperly

tested it. In hi

s written report, Dr. Harlan stated that Reye’s Syndrome pr oduces increas ed blood ammonia and that the victim’s blood was not tested for ammonia. The report also stat ed tha t it was probable that the cyanide reported from the blood sample was really ammonia. On cross-examination, Dr. Harlan testified that Reye’sSyndrome is not usually fatal in adults, and of the forty autopsies he has d

one on people with Reye’s Syndrome, only

five to eight were over the age of thirty.

Dr

. Bruce Levy testified as follows: He is the Chief Me dical Examiner fo r Metr o Nashville/Davidson County and the Chief Medical Examiner for the State of Tennessee. The court-7-

found him to

be an expert in ana

tomic, clinical,

and forensic pathology for the state. He reviewe d the autopsy report with Dr. Ward and Dr. Gerber but did not see the vict im’s body. He disagreed withDr. Harlan that thevictim died of Rey e’s Syndrome

, an unusual condit

ion. Reye’s

Syndrome begins with a viral syndrome and often the victim has ingested aspirin. Although this victim ha d viral syndrome, sh

e did not ingest as

pirin. Usually

, victims of Rey

e’s Syndrome

have fatty replacement

of the liver, the liver is enlarged and yellow, and the l evel of ammonia in the body increases. Theautopsy report said that the victim’s liver was normal size and red-brown in color. Her liver cells did not look anything like those of a person suffering from Reye’s Syndrome,

and her body was not tested for

ammonia. Rey

e’s Syndrome

also results in

fat deposits in the kidneys and heart, swelling of the brain, and low blood sugar.

The victim had no fa

t deposits in her kid

neys. Although she had fat deposits in the right side of her heart, they were notthe small bubbles of fat you would expect to see in a person suffering from Reye’s Syndrome. She had no brain swelling, and her glucose level was high. Dr. Levy was not awar e of any instances of contamination at the medical examiner’s office, and that office does not st

ore cyanid

e. He ruledout ingestion and injection of cyanide because cyanide was not in the victim’s gastric contents and ther e was no injection site. Inhaling cyanide gas causes

very rapid death. Therefore, with no forms of cyanide found a round the bod y, the victim did not commit suicide. Howev er , Dr. Levy pointed out that photographs of the victim’s lungs showed evidence that she had inhaled a toxic substance. Heconcluded that the victim had a fatal level of cyanide in her body and that cyanide caused her death, a homicide . On cross

examination, Dr. Levy acknowledge d that he had never autopsied a body with Rey e’s Syndrome and that a microscopic exa

mination of the vict

im’s liver showed m

ild to moderate fa

t d eposits w ere present. He also said that the dark substance aroun

d the victim’s mouth

was negative for cyanide.

Dr. Timothy Mere

dith is the Director

of the Center for Clinical Toxicology and is a professor of medicine and pathology at Vanderbilt University. He is a medical doctor andthe trial court found him to be an expert in clinical toxicology for the defense. He stated that when the v ictim went to Baptist Centra Care, her blood pressure was elevated and she was under respirato

ry distress.

He said that most of the right ventricle wall of her heart had been replaced by fatty tissue. He also stated that her lungs were congested and that her stomach co n tained a dark bro

wn liquid. Dr. Mere

dith testified that the Aegis L aboratory report said that th

e victim’s b lood had been collected on December

22, 1997, the day

before she died

. He said that the report showed

that cyanide was present in the blood in a concentration greater than two micrograms per milliliter. Dr. Meredith testified that although the Aegis repor

t said that col orimetric and photometric techniques were used to test the victim’s blood, MedTox, not Aegis, tested the blood and used more sophisticated techniques. He said that MedTox should have retested the blood for cyanide from the same gray-topped tube but that MedTox ran out of that blood sam ple and had to req

uest another tube

of blood for the re

te st. Dr

. Meredith also noted that Aegis had never logged in the second tube, meaning that there was no way to tell the source of the second tube. He said that base d on these and othe

r discrepancie

s, he could notsay that the victim’s blood contained toxic levels of cyanide. He stated that if a person inhaled cyanide, then

cyanide would be found in the blood, lungs, upper respiratory tract, and possibly the gastric contents and liver. On cross-examination, Dr. Meredith stated that the wrong date on the blood tubes could be a typographical error. He also a cknowledged that cyanide can be fatal at

one microgram

per milliliter, but he said that many people have survived with concentrations of cyanide in their blood greater than the cyanide concentra tion in the victim’s blood.-8-

Kirk Myers testified as an exper t in b usiness evaluation as follows: He is a CPA and performs b usiness appraisals. He analyzed the victim’s and defendant’s business, Southern Debt Management

. The victim and defendant started their business in April 1996. The victim was responsible

for bookkeeping, collecting accounts, and computer data entry. The defendant did not know how to use a comput er and was resp onsible for acquiring new business. In 1996, Southern Debt Management made a

fourte en-thousand-dollar profit, and in 1997, it made a twenty-twothousand-dollar

profit. The victim w

as vital to the busine

ss, and it closed because of her death. Althou gh the defendant could have hired someone to help him, this would have taken all of the business’ profit, and the de fendant chose to

close the business. Mr. Myers found no receipts for any type of insur

ance paym

ents.

The defendant testified that he and the victim started dating in 1987 and marri ed in September

1989. He said that he worked as a salesperson at Tennessee Valley Exterminating from A pril 19 87 to October 1987 but did not handle c

hemicals. The de

fendant said that

Brittney c

ame to live with them in 1989 and that the victim considered Brittney to be her daughter. He said that he and the victim had f

inancial problem

s but that he was never without a job for more than a week. He said he and the victim borrowed money from the Yorks for the down pay ment on a new car. He said they tried to repay the Yorks by sending them a check

for half of th

e down payment, but the Yorks tore up the check. The defendant sa id that he and the vi

ctim were close t

o the Yorks and that the two couples did many activities together. He stated that in April 1996, he and the victim started working together in their small collection agency. He testified that the victim handled calls, entered information into the computer, generated letters, and managed all money that came in. He said that he did not know how to operate a computer. The defendant stated that when his mother was diagnosed with br

ain cancer in

March 1997, he started ignoring the business. He said this led to a downslide in the business and to arguing between him and the victim. H

e said that he and t

he victim wrote letters to each other

after arguments to express themselves. The defendant said that in 1997, he and the victim ag

reed to paint and c

arpet parts of th

e house as their Christmas p

resentsto each ot her. He stated that despite this agreement, he bought the victim several gifts that Mrs. Yor k wrapped for him.

The defendant testified

that the victim

cooked dinner on Sunday, December 21, 1997, for her dadandstepmother, but she was too sick to eat.

He said that when t

he victim came to be

d that night, she told him that she felt sick on her stomach. He said that around 2:00 and 2:30 a.m., she got sick in bed. He stated

that he got her some Coke to drink, but she could not keep it down. He said that about 3:00 a.m., he went to Walgreens and bought her some lemon-lime Gatorade. The defendant said that the next morning, the victim told him that she needed to see a doctor. He said that he asked her if she wanted to g

o to Baptist

Centra Care or the emergency room and that she said she did not want to go to the hospital. The defendant said that he called Mrs. York a nd told her that he was taking the victim to Baptist Centra Care and asked Mrs. York if she wanted to go with them. He stated that Mrs. York came over to the house, they took the victim to Baptist, the victim saw the doctor, and they

got home around noon. The defendant said that he left to run erran

ds while Mrs. York stayed with t

he victim. He said

that he got home a

bout 4:30 p.m. and fo

und the victim

asleep in bed. He said that he noticed she had labored breathing, whi ch concerned

him. He said that he-9-

askedMrs. York about the victim’s breathin

g and that she told

him it was a normal reaction

to the Phenergan

shot. The defendant testified that Mrs. Yor k le ft around 6:00 p.m. and offered to take Brittney with her. He said he never left the house after that. He stated that at 7:00 p.m., he ordered

a pizza, ate, and fell asleep on the couch. He said that Mrs.York called about 10:00 p.m. and that he checked on the victim for her. The defendant said that the victim was asleep and that she still had labored breathing. He said that he then went to sleep on Brittney ’s bed.

The defendant testified

that he slept all n ight and tha t when he wok e up the nex t morning, he checked on the victim. He said that her labored breathing had stopped and he thought she was breathing normally. He

said that he tried t

o wake her and discovered that she was dead. He said that he called 9-1-1 and

trie d to giv e his wife cardiopulmonary resuscitation (CPR). He stated that he blew into her mouth a couple of times and held her nose, but he got no response. The

defendant said that he called Mrs. York. He stated that after medicalpersonnel examine d his wife, they

told him tha t sh e had been dead for som e ti me. The defe nda nt s aid tha t he ask ed fo r a fu ll a uto psy.
The defendant testified that he and the victim had discussed funeral arrangements and that they agreed to have only

a graveside service. He said he refused to bury her on Christmas day. The defendant said that he and his

wife did not have any

life or health

insurance and th

at the funeral bi

ll had not been paid. He said that after her death, he could not sleep in their bed, so he sold it.

The defendant testified that Detective Bernard accused him of having an af fair and k i lling his wife. He said that he told Mr. York that he had slept with another woman in October or November

1997 and that he had sex with another woman on January 23, 1998. He sai d that the November

1997 incident occurred in his car and the January 1998 incident

took place on the couch in his living room.He denied that he or the victim wanted to declare bankruptcy, and he denied that he ever told

Mr. York that he wanted to plea bargain. He sa

id that his wife mea

nt what she said in the “I will not be cheap” letter that she wrote to him on August 3, 1997. He stated that he did not have cyanide in the house and that he did not kill his wife.

I. SUFFICIENCY OF THE EVIDENCE

The defe ndan t contends that the evidence is insuf

ficient to support h

is conviction for f

irst degree murder. He argues that his business, Southern Debt Management, depended on the victim for its survival, that he

and the victim

had no health or life insurance, and, thus, that he had no motive to kill his wife. In addition, he contends that she had been sick for several days befor e her death, that there were no injection sites on the victim’s body, that no cyanide was found in any specimens Detective Bernard took from the house, and that his experts disputed the state’s proof that the victim died fromcyanide poisoning. The state argues that the evidenc e was sufficient to support the conviction.

Our standard of review when the defe ndant questions the sufficiency of the evidence on appeal is “whether, af

ter viewing the

evidence in the li

ght most favo rable to the prosecution, any rational trier of fact co

uld have found the

essential elemen

ts of the crime bey

ond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 9 9 S. Ct. 27 81, 2789 (1 979). We do not reweigh-10-

the evidence but pre

sume that the jury

has resolved all c

onflicts in the test

imony and dra

wn all reasonable

inferences from the evidence i n favor of the state. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). Qu estions about witness credibility were resolved by the jury. See State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997).

Circumstantial evidence alone may be sufficient to support a conviction. Statev. Richmond
, 7 S.W.3d 90, 91 (Tenn. C

rim. App. 1999); Statev. Buttrey , 756 S.W.2d 718, 721 (Tenn. Crim. App. 1988).

The law is firmly established in this State that to warrant a criminal

conviction upon circumstantial evidence alone, the evidence must be notonly consist

ent with the guilt of the accused but it must also be inconsis te ntwith his innocence and must exclude every other reasonable

theory or hypothesis except that of guilt, and it must establish such a certainty of guilt of the accused as to convince the mind beyond a

reasonable doubt that he is the one who committed the crime.

Pruitt v. State , 3 Tenn. Crim. App. 256, 267, 460 S.W.2d 385, 390 (1970). While following these guidelines,

we must note that the jury decides the weight to be given to circumstantialevidence and that the “‘inferences to be

drawn from such evidence, and the extent to which the circumstances are consistent with guilt and inconsistent

with innocence, are questions primarily for the jury.’” Marable

v. State , 203 Tenn. 440, 452, 3 13 S.W.2d 451, 457 (1 958) (quot ing 2 Wharton’s Criminal Evidence 1611).

The first degree murder charged in this case is the premeditated and intentional ki lling of another. Tenn. Co

de Ann. § 39-13-20

2(a)(1). Preme

ditation is defined

as:

an act done after the ex ercise of reflection a

nd judgment. “Premeditation” means that the intent to kill must have been formed prior to the act itself. It is not necessary thatthe purpose to kill preexist in the mind of the accused for any definite period of time. The mental state

of the accused at the time the accused allegedly de cided to kill must be carefully considered in order to determine whether the accused was sufficiently free fr om excitement and passion as to be capable of premeditation.

Tenn. Code Ann. § 39-13-202(d). The element of premeditation is a question for the jury and may be established by proof of the circumstances surrounding the killing. Bland , 958 S.W.2d at 660. Our supreme court has delineated the following factors that demonstrate the existence of premeditation: the use of a deadly

weapon upon an un

armed victim, the p

articular crue

lty of the killing, declarations by the defendant

of an intent to kill, evidence of procurement of a weapon, preparations before the killing for concealment of the crime, and calmness immediately after the killing. Id.-11-

Viewed in the light most

favorable to the state, the evidence reveals that the defendant used cy anide to pois on and kill the victim. The victim and defendant were having serious financial problemsand were at odds over whether to declare bankruptcy. In addition, the victim had indicated to the defendant that she was contemplating divorce and that she would not be cheap. The victim hadbeen sick

with flu-like symptoms for several days prior to her death. When she saw a medical doctor, he concluded that she had a viral sy ndrome and that her life was not in danger. However, less than twenty

-four hours late

r, the thirty

-three-y ear-old victim

was dead. Two se

parate blood test

s revealed that lethal levels of cyanide were present in the victim’s blood, and the doct or who performed

the autopsy ruled

that cyanide poisoning caused her death. No injection sites were f ound

on the victim’s body, and cyanide was not found in her stomach. The fact that cyanide was present in t he blood, but not the stomach, indicated that the victim inhaled cyanide. Because death by inhaling cyanide occurs quickly , and no cyanide was found around the victim, she could not have committed suicide. Thus, someone administered the cyanide gas to the victim. With the defendant being alone with the victim from 6:00 p.m. on December 22, 1997, until 6:30 a.m. December 23, 1997, he had sufficien

t time to pois on his wife. In addition, he had worked for an exterminating company where chemica

ls th at con tain cyanide were readily accessible. Although no direct evidence that the defendant killed his wife existed, the jury could have found b

eyond a re

asonable doubt that the defendant intentionally, and with premeditation, used cya nide to poison her. We conclude that the evidence is sufficient to support the defendant’s conviction for first degree murder.

II. RESTRICTION OF EXPERT TESTIMONY

The defendant contends that the trial court committed plain error by limiting Dr. Meredith’s testimony. Specifically, he contends that the court should have allowed Dr. Meredith to testify as to the victim’s cause of death. In addition, he argues that the defense was restricted from asking Dr. Meredith about wha t areas of inquiry he would suggest to a pathologist to deter mine the cause of death and that Dr. Mere

dith was not allo

wed to te stify about proper laboratory proc edures in the collection and determination of the presence of cyanide. The state argues that the court proper ly limited Dr. Meredith’s testimony and that any error in the limitation was har mless.

I n a pretrial hearing, Dr. Meredith testified that he had several medical deg rees fro m Cambridge University i

n the United King

dom. His curriculum vi tae reflects that he practiced general medicine and surgery

beginning in

1975 and tha t he ult ima tel y focu sed upo n cl ini cal tox ico logy. He served as a clinical toxico

logy consu

ltant to the World He

alth Organization. At

the time of his tes tim ony, Dr. Meredith was the director of the Center for C linica l Toxicology at Vanderbilt University

Medical Center an d was a professor of medicine and pathology at Vanderbilt Medical School. He said that he se es patients o

n a daily ba sis that are suffering from the toxic effects of chemicals. When asked if he has ever determined a patient’s cause of death, he said that about thir

ty times a year, colleagues give him a set of facts and, based on those facts, he gives them advice as to

a patient’s cause of death. Dr. Meredith testified t hat based on the victim’s medical records from Baptist Centra Care, the au topsy report, and the reports from Aegis and MedTox laboratories, he could not say that the victim died from cyanide po isoni ng. When asked if he had determined the victim’s cause of death,

he said that he had

not. Based upon D

r. Meredit

h’s qualifications and pro pos ed t est imo ny, t he t ria l co urt rul ed t hat he w as an exp ert in c lin ica l to xic olo gy.-12-

At trial, Dr. Meredith testified that he could not agree that the victim died of cyanide poisonin g. Defense counsel then asked him if he had determined the victim’s cause of death. The state objected, and

the trial court refused to allow Dr. Meredith to answer the question. The court remindedthe defense that Dr. Meredith could testify about the victim’s cause of death only if the de fen se qualified him as an expert in forensic pathology. The defense stated that it would not do that.

The defendan t conte nds that Dr. Meredith should have been allowed to testify about the victim’s cause of death. He asserts that Dr. Meredith is a wor ld-renowned toxic ologist, a prolif

ic author, and the head of

the Center for Clinical Toxicology at Vanderbilt Medical Center. He argues that Dr. Meredith

was qualified

to give an opinion on cause of death. The state argues that the trial court properly

limited his testimony

and any er

ror was harmless

.
Init ial ly, we note that the defendant’s brief do es n ot explain why the limitation of Dr. Meredith’s testimony was plain error. In our review of the record, we find nothing to indicate that the restriction of his testimony requires plain error analysis. See Tenn. R. Crim. P. 52(b ); State v. Adkisson , 899 S.W.2d 626, 636-42 (Tenn. Crim. App. 1994).

The admissibility

of expert testimony

is a matter within

the trial court’s

discretion and wil

l notbe reversed on appeal absent an abuse of discretion. Statev. Tizard , 897 S.W.2d 732, 748 (Tenn. Crim. App. 1994). Rule 702 , Tenn. R. Evid., states, “If scientific, technical, or other specialized knowledge will substantially assist the trier of fact to understand the evidence or

to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opin ion or otherwise. ” Rule 703, Tenn. R. Evid., states, “Th

e court shall disallow testimony in th

e form of an opinio

n or inference i

f the underlying

facts or data indicate lack of trustworthiness.” Determinations con cern ing t he ad mis sib ili ty of exp ert tes tim ony, including the basis of the expert

opinion, are within

the discretion of the trial court. State v. Ballard , 855 S.W.2d 557, 562 (Tenn. 1993); see also State v. Hall , 958 S.W.2d 679, 689 (Tenn. 1997). However, the jury determines the weight and c redibility of t he ex pert ’s t est imo ny. State v. Anderson , 880 S.W.2d 720, 732 (Tenn. Crim. App. 1994).

We are perplexed by the

trial court’s det

ermination that Dr

. Meredith was not

qualified to give an opinion rega rding cause of death. In addition to showing that he is a specialist in clinical tox ico logy, the record reflects that Dr. Meredith is licensed to practice medicine in Tennessee, has

over twenty-five years of expe rience, and sees patients on a daily basis. He testified that he routinely assists his colleagues with determining causes of death. He holds the position of Professor of Medicine and Pa

thology at V

anderbilt Univer

sity Medical School. An expert does not ha ve to be a forensic pathologist in order to give an opinion asto cause of death. See State v. Duncan , 698 S.W.2d 63, 68-69 (Tenn. 1985) (holding that a general surgeon is qualified to give his opinion about the victim’s cause of death but not regarding how the crime occur

red); State v. Bragan , 920 S.W.2d 227, 245 (Tenn. Cr

im. App. 1995) (concluding that the Hamilton County medical examiner, who hadno specialized tra

ining or educat

ion in forensic pa

thology, wa

s qualified to giv

e a cause of dea

th opinion); Owens v. State , 202 Tenn. 679, 308 S.W.2d 423, 424 (1957) (holding that an embalmer withtwenty years of experience could testify as to cause of death); Franklin v. State

, 180 Tenn. 41,-13-

171 S.W.2d 281 (1943) (determining that an undertaker was qualified to testify that knife wounds caused the victim’s death). In this res pec t, we have found no Tennessee case that bars a licensed medical doctor from giving an opinion regarding cause of death. We conclude that Dr. Meredith was qualifiedto testify as to the victim’s cause of death. However, we do not believe that the trial court’s restriction constitutes reversible error.

During the pretrial hearing, the defendant asked Dr. Meredith if h e had det ermined the victim’s cause of death, and Dr. Meredith replied that he had not. At trial, the defendant again asked him if he had a conclusion as to the victim’s cause of death. Once the trial court granted the state’s objection and refused to a llow Dr. Meredith

to answer the que

stion, the defenda

nt was obligated

to make an offer of proof

given the circumstances of the case. Rule 103(a)(2), Tenn. R. Evid., provides that in order to reverse a trial court’s ruling to exclude e vidence, a substa

ntial right of a p

arty must be affected and, if not apparent from the context, “the substanc e of the evi dence and the spe cific evidentiary

basis supporting admission” must be made in an offer of proof. We see nothing in the record to indicate that Dr. Mere dith acqui red new information between the time of the pretrial hearing and his taking the stand at trial. We a

lso note that the record reflects that he did not sit in the courtroom and

listen to other witnesses testify before giving his testimony. Given Dr. Meredith’s pretrial testimony that he had not determined a c

ause of death

and the defendant’s failure to make

an offer of proof as to whether Dr. Meredith had subsequently f ormed an opinion, we will not sp eculate about whether Dr. Meredith had formed an opinion as to the victim’s cause of death. Moreover, we note that Dr. Meredith was allowed to give his opinion that cyanide p oisoning was notthe cause of dea

th. Therefore,

the record fail

s to show that the defendant was prejudiced by the trial court ’s ruling.

We also believe that

the defendant did not take steps that were available to him to counteract the trial court’s error. A party “who failed to take whateve r action was r easonably

available to prevent or nullify the

harmful effec

t of an error” is

not entitled to reli

ef. T.R.A.P. 36(a

). In this respect, the record reflects that the trial court gave the defendant the opportunity to try to qualify the witness as a pathologist, but the defendant chose not to take it. Because the defendant took no action to prevent the harm

ful effect, if a

ny, of the tr

ial court’s erro

r, he is not entitled

to relief on this issue.

The defendant also contends that the court improperly restricted Dr. Meredith from testifying about suggestions he would give to a pathologist r

egarding the

cause of death. Given our view of Dr. Meredith ’s exp er tis e, w e bel iev e th e tr ial cou rt a gain erre d by r est ric tin g his tes tim ony. However, the defendant did not make an offer of proof as to Dr . M eredith’s testimony, and we cannot speculate as to hi

s proposed testimon

y or its purpose. Again, the d efendant has f

ailed t o demonstrate how he was harmed by the trial court’s restriction.

Finally, the defendant argues that the trial cour

t did not allow Dr. Me

redith to testify about proper laboratory procedures in the collection and determination of the pres en ce of cyanide. The defendant’s brief fails to cite to anything

in the record to su

pport his contention, and we find nothing in the record to support his argument. Dr. Meredith testified about what happens to cy

anide in the blood after blood is drawn and stored, where inhaled cyanide would be

found in the body, and why the second test for

cyanide should have come from the same blood tube. He also testified as to the-14-

various discrepancies in the Aegis and MedTox laboratory worksheets and the f act that the dates on the blood tubes indicat

ed that the victi

m’s blood was drawn prior to her death. The state did not object to this testimony and nothing in the record indicates tha t the court limited Dr. Meredith’s testimony in th

is area. We see no

improper limitation

to testimony a

bout laboratory

procedures.

III. RULE 404(b)

The defendant contends that the trialcourt erred by allowing Ken York to testify about two sexual encounters the defendant had outside the marriage. He states that each incident involved a different woman, the first occu rring fi fty-two days before the vic tim’s death, and the second occurring thirty days after he r death. H e argues that w ith two different

women involved, Rul

e 404(b), Tenn. R. Evid., prohibited admission of the testimony because there was no showing of a plan, scheme, or motive. He also argues that the

court should have

excluded the evide

nce because its probative value was outweighed by unfair prejudice. T he state argues th at the evidence was admissible and that any error by the c ourt was harmless.

Rule 404(b), Tenn. R.

Evid, prohibits the introd uction of evidenc

e of other crime

s or acts, except when the evidenc

e of other acts is

relevant to a litig

ated is su e, such as identity, intent, or motive, and its probative value i s not outweighed b

y the dang

er of unfair pre

judice. The rule

states:

Evidence of other

crimes, wrongs, or acts is not admissible to prove the character of a person

in order to

show action in conf

ormity with the character tra

it. It ma y, however, be adm issible for other p

urposes. The conditions which must be satisfied before allowi ng such evidenc e
are:
(1) The court upon request must hold a hear ing outside the jury's presence;

(2) The court mu st de termine that a material issue exists other

than conduct conforming with a character trait and must upon request state on t he reco rd the

m ateria l issue, the ruling, and the reasons for admitting the evidence; and

(3) The court must exclu de the evidence

if it s probative value is outweighed by the danger of unfa

ir prejudice.

The Advisory

Commission Comment to the rulenotes that under th

is procedure, the

trial court must further find that the evidence of the other act is "clear and con vin cin g" as requ ire d by State v. Parton

, 694 S.W.2d 299, 303 (Tenn. 1985). When a trial court substantially complies with the procedural requirements

of the rule, its determination will not be overturned absent an abuse of discretion. State v. Dubose , 953 S.W.2d 649, 652 (Tenn. 1997).-15- A. Defendant’s

Sexual Conduct Bef

ore Victim’s Dea

th

In a jury-out he a

ring, Mr. York testified that the defendant said he had extramarital sex before the victim’s death. The defenda nt argued that the evidence was irrelevant and that its probative value was outweighed

by the dang

er of unfair pre

judice. The state

argued that the e vidence was relevant to intent. The trial court ruled that the conduct w

as relevant to

the relationship of the parties and admissible. We agree with the trial court.

We conclude that the evidence of defendant's extramarital sexual conduct before the victim’s death was relevant to the r elationship of the parties and probative of motive. In its case-in-chief, the state introduced

several witnesse

s who testified abo

ut the Robinso

ns’ deteriorating marriage. Mrs. York testified tha

t her daughter

was unh appy, that the victim and defendant had serious personal and financial pr

oblems, and that th

ey were a t o dds abo ut w het her t o de cla re ba nkr upt cy. Mr. York testifiedthat the victim and defendant had a stormy marr

iage and that the

defendant told him that it was impossible

to get along with t

he victim. Mr. York

also stated that the

defendant told him that he had a great need for sex but that he and the victim had not had sex since early December. Furthermore, Detective Bernard read letters into evidence that revealed that the victim

and defendant hadno sexual relat ionship and that the victim was considering divorce. The purpose of such

ev iden ce was to establish that the defendant had a motive for killing the victim. Mr. York’s testimonyabout the defendant’s extramarital, sexualconduct before the victim’s death is relevant to the couple’s rel

ationship and, h ence, infers motive. In addition, the evidence was clear and convincing that the defend ant commi tted the prior bad acts. We conclude that the evidence’s probative value was not outw eighed by danger of unfa

ir preju dice and tha t Mr. York’s testimony about the defendant's extramarital conduct before the victim’s death was admissible.

B. Defendant’ s Sexual Conduct Afte r Victim’s Death

In the jury-ou

t hearing, Mr. Y

ork also testified that the

defendant told

him that he had sexual intercourse

with a woman in the marital bed, one month after the victim’s death. The defendant argued that the evidence was irrelevant

and that its probative value was outweighed by the danger of unfair pr ejudice. The state argued that the evidence was admissible to show the defendant’s intent. Although the tri al court ruled that Mr. York’s testimony was admissible, the court did not specifically

state on the record

what issue the testimony addressed. We note, however, that the court gavea limiting instruction that prohibited the jury from considering the testimony for anything other than motive, intent, or completion of the story. Before the jury , when the prosecution a sked Mr

. York where the defendant’s sexual encounter on January

23, 19 98, to ok pla ce, Mr . York repli ed, “It occurred in their house in her bed.”

While we agree with the trial court that evidence that the defendant had a sexual encounter in the marital bed after the victim’s death may be relevant to infer the defendant’s motive, we conclude that the probative value of the location of the encounter was outweighed by the danger of unfair prejudice. The general rule excluding evidence of other bad acts exists because such evidence

can have a signific

ant impact on the ju

ry and cau

se the jury t

o convict the defendant because the-16-

defendant is a bad person. See State v. Rickman , 876 S.W.2d 824, 828 (Tenn. 1994). Our supreme court has stated that unfair prejudice i s “‘ [a]n undue tendency to suggest decision on an improper basis, com mon ly, t hou gh no t ne cess ari ly, an emotional one.’” Statev. Banks , 564 S.W.2d 947, 951 (Tenn. 1978) (quoting Fed. R. Evid. 403, Advisory Committee Note). In the pre sent case, the fact that the defendant

had sex with another

woman, one month af

ter his wife’s de

ath, may be s

lightly probative to infer the defendant’s motive. However, we believe that allowing the witness to testify that the act occurred in the victim’s bed risks stirring emotions that could cause

the jury to decide the case on an improper basis. Furthermore, the state did not need this evidence b ecause 1 ) Mrs. York testified that the defendant and victim had personal and financial problems and were at odds

over whether to declare bankruptcy; 2) Mr. York testified that in the fall of 1 997 the victim’s and defendant’s marriage rap

idly deteriorated; 3) Mr. York testified that the defendant had a great need forsex and that the defendant had engaged in extramarital, sexual conduct prior to the victim’s death; and 4) Detective Bernard read into evidence letters in which the victim threatened to divorce the defendant and warned him that he would pay for it. All of that e

vidence was ampl

e to infer that t he defendant had a motive to kill the victim and evidence of the post-death sexual conduct was

cumu lative

. We believe that an y probative

value of the mari

tal bed incident wa

s slight in comparison to the danger of unfair prejudice. We conclude tha t the trial court should not have admitted the evidence.

Although t h e trial cour t should n ot have all owed eviden ce about the defendant h aving a sexual encounter in the maritalbed after the victim’s death, we believe that the defendant has failed to show prejudice. Pursuant to Rule 36(b) T.R.A.P., a reversal for trial error may not occur “unless, considering the whole record, error involving a substantial right more probably than not

affected the judgment or would result in prejudice to the judicial process.” I n this respect, we note that Mr. York mentioned the incident once, testifying “it occurred in their house in her bed.” The state made no other mention of the incid

ent, in closing argument

or otherwise. The defendant testified about it but deniedthat anythin

g occurred in t

he bedroom. The jury wasalready aware of the defendant’s other extramarital encounter. Also, after Mr. York’s testimony, the trial court instructed the jury tha t it could consider evidence of the defendant’s sexual conduct before

and after the vic

tim’s death only for proof of motive, completion of the story, intent, or knowledge. Although we see no ne ed for the evidence to complete the relevant story of the case, the remaining limitations in the instruction were prope r. Given these circumstances and the strength of the state’s circumstantial case, we cannot conclude that evidence of a sexual encounter in the marital bed after the victim died more probably than not affected the verdict.

In sum, we conclude that the trial court did not abuse its discretion when it admitted evidence that the defendant had an extram arital encoun ter before the victim’s death. Upon review of the admissibility

of the evidence concerning the defendant’s sexual encounter after the victim’s death,

we conclude that the

probative value o

f the evidence w

as outweighed b

y the dang

er of unfair prejudice and that the trial court should not have admitted that evidence. Nonetheless, such error was harmless.-17- IV. JURY COMPOSI

TION

The defendant argues that he was denied the right to be tried by a fair and impartial jury of his peers because the

gender ratio o

f this jury, te

n women to two men, w

as disproportiona

te to the actual gender ratio of the venue of the offense. However, the defendant’s brief makes no argument andfails to cite to any authority to support hi s c laim. In additi on, the brief make

s no reference

to the record and the defendant did not provide this court with a transcript of the jury sel

ection process. It is the duty of the appellant to prepare a record that convey s a fair, accurate, and

complete account of what transpired in the trial court with respec t to the issues that f

orm the basis of the

appeal. Tenn. R. App. P. 24(b); Statev. Miller , 737 S.W.2d 556, 558 (Tenn. Crim. App. 1 987); State v. Rhoden
, 739 S.W.2d 6 (Tenn. Crim. App. 1987). Generally, this court is precluded from addressing an issue

on appeal when the record fails to include relevant documents. See Te nn. R. App . P. 24; State v. Bennett
, 798 S.W.2d 783 (Tenn. Crim. App. 1990). By failing to include the transcript of the jury selection process in the record, the defendant has waived this issue.

V. OUTSIDE INFLUENCE ON JURY

The defendant contends that he w as den ied a fair trial because a movie about a man who murdered his wife with cyanide aired on a local television station during the trial. How ever, once again, the defendant’s brief fails to make an argument, cite to any authority, or make any

reference to the record. Ne

vertheless, we f

ind that there is no

merit to this claim.

The morning after the movie aired, the judge questioned the jur ors as to whe ther they had seen the movie the previous night, and the following exchange occurred:

The Court [to

the jury]: Good morning. The jury is now present in the courtroom. We are about ready to begin the proof

and we will be finishing this case today, but before we get started, I

need to inquire about something.

As you recall

, when we did

voir dire and all theway through this process,

I’ve been advising you not to form an opinion as to the verdict and not let anything interfere with your decision-making process, other than what you hear in the courtroom.

Now it ha s come t o my attention that there was a made for television movie on last night

. Did anybody watch a moving star ring John Ritter last nigh

t?

Juror Ms. Hunter: I started watching it and I turned it off.

The Court: Ok, that is, Ms. Hunter , you s tarted watching. Did you complete the movie?-18- Juror Ms. Hunter: No , I did not.

The Court: Okay,

all right. Whatever you watched, Ms. Hunter, can you set that aside and not allow that to have any effect on y our opinion in this case?

Juror Ms. Hunter: Ye

s, ma’am.

The Cou rt: Ok, all right, and I take it from every body else l ookin g confused that you prob

ably watched the ball

game or something like that. No one else w

atched that movie ? All right.

Again, my same admo

nit ions to you. You mus t decide this

case strictly on w hat you hear from he [sic] w itnesses in this courtroom

and nothing else. Can everybody promise me that you will do that?

All right, now Mr.

Gross, are y

ou ready wi

th your next wit

ness?

The trial court properly questioned the jurors about the movie as soon as the issue was raised at trial. Although o

ne juror said

she watched part of the movie, the trial court asked her

if she could putaside what she saw and not let it have any effect on her opinion in the case. The juror said that she could. There is no indica tion that any

other juror had se

en the movie, and th

e trial cour t instructedthe jurors about their obligations. Ordinarily, we presume t hat jurors follow such instructions. State v. Alvarado , 961 S.W.2d 136 (Tenn. Crim. App. 1996). We find no evidence that the jury was tainted by extraneous, prejudicial information, and we conclude that there is nomerit to this issue.

Based upon the forego

ing and the rec

ord as a whole, we affirm the judgment of conviction.

___________________________________ JOSEPH M. TIPTON, JUDGE