### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs O ctober 17, 2001 STATE O F TENN ESSEE v. BENJAM IN HERN ANDEZ , III Direct Appeal from the Criminal Court for P utnam County No. 97-0174 Leon C. Burns, Jr., Judge

No. M2000-00225-CCA-R3-CD - F iled November 21, 2001

The defendant

was indicted for premeditated first degr ee murder, convicted of

the lesser-included offense of second degree murder , and sentenced to 25 y ears in the Department of Correction. In thi s appeal, the defe

ndant all eges: ( 1) the evidence w as insuff icient to sustain his conviction; (2) the state failedto provide him with exculpatory evidence ; (3) the state destroy ed evidence, thereby de priving him of due pr ocess; a nd (4) the trial cou rt erron eously failed to grant a continuance or mistrial when a witness became ill and was unavailable to testify . After a thoro ugh review of the record, we af firm the judg ment of the

trial cou rt. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cr

iminal Court Affirm

ed
J OE G. R ILEY , J., delivered the opinion of the court, in which D AVID H. W ELLES and J ERRY L. S MITH , JJ., joined.
Mi chael H. Knowlton (at trial and on appeal) and Joseph F. Edwards (at tria l), Cookeville, Tennessee, for the appellant, Benja min Hernandez, II

I.
Paul G. Summers , Attorne y Gener al and Reporter; Elizabeth T. Rya n, Assistant Attorney Genera l; William Edward Gibson, District Attorney Genera l; and David A. Patterson and Benjamin W. Fann, A ssistant D istrict At torney s Gener

al, for th e appell ee, State

of Tennessee.

OPINION
TRIAL TESTIMONY
Nina Turner testified

she had a good relationship with her fiancee, Danny

Johnson, the victim. On December 31, 1996, she and the vi ctim

went to two friends’ residences. She stated the victim consumed alcohol at both residences. She and the victim began arguing concerning her desire to return h ome, so she

dropped the victim

off at a bar at a pproximate

ly 1 0:40 p.m. She then proceeded home and went to bed. At approximately 1:30 a.m., she rece ived a phone-2-

callfrom the v

ictim req uesting her to pic

k him up at th

e bar. Whe

n she ref used his re quest, he threatened to burn her home.
In response to his threat, Turner left with her mother and children, who also resided there, and went

to the justice center to obtain a warrant. Turner stated she was denied the warrant because shewas not the legal owner of the residenc e, and her mother refused to enter the building beca

use “she didnot have her teeth.” They left the justice center

and drove to a gas station where Turner phoned the victim, who refused to talk with her. T hey drove to he

r sist er's residence, arriving at approximately 2:30 a.m., and spent the night. Turner , her children, and her mother returned to their residence at

approximately 7:00 a.m. and found the side door open. Upon entering, they saw the victim’s body on the floor a nd phoned the police. The autopsy re

vealed the victim suffered multiple gunshot wounds.
Turner fur ther testified the victim was a friend of David L eonard, Robert Leona

rd’s older brother. She stated she was not close to either, “did not care” for Robert, and

had never dated or had a sexual encounter with either.
Robert Leonard testified he wa s acquainted with the defendant and the v ictim. He described the defe ndant as h is friend, but stated the defendant and the victim were not friends. He testified that on December 31, 1996, he, the def endant, an d Patricia Blackman, the defendant’s girlfr

iend, att ended a party until appr

oximately 12:15 a.m. , when the

y w ent to Leonard’s residence. The victim p honed app roximately 15 minutes after their ar rival, and Leonard's girlfriend chastised him for phoning so late because of

a sleepi ng child . The vic tim phoned again within three minutes. The defendant answe red, stating, “[Y]ou disrespected me, [and] I know where

you live, and I 'll go kick y our a--.” The defendant then hung up and stated, “Let's go over

there.”Leon ard testi fied the defenda nt th en dr ove him, his younger brother TimothyLeon ard , Ti mo th y Le onard 's frie nd Eri c Dish man, a nd Blac kman t o Nina Turne r's residence, where the victim was located.
The defendant, followed by Robert and Timothy, walked up the stairsto th e resi dence's side door while Blackman and Dishman remained in the vehicle. The defendant then knocked on the door, and, although the refrige rator was partially

barricading the

door, the victim opened it sligh tly, hol ding a k nife, and sa id, “It's you, punk.” The victim then moved the refrigerator to the side, opened the door, and the defendant fired thr ee or four shot s. The tri o then fle d to the vehic le, an d the d efenda nt argu ed wit h Black man, s tati ng h e t hought she and Dishman were engaged in sexual activity, and he “would shoot [Dishman] and he didn' t care b ecause

he'd ju st shot a man.”
Robert Leonard further

testified the d efendan t refused to drive them home, instead taking t hem to his reside

nce. The re, the d efenda nt consume d more al cohol and argue d with Blackman, who ran outside of the residence and yelled

that the defendant had just committed a murder. The defendant followed her outside and hit her. When the defendant returned, he hidthe gun

in the air condition

ing ven t; howeve r, he lat er in stru cted Dish

man to re move it-3-

since Dishman's han ds were of the size that could reach inside the duct work. Robert recognized

the pistol as the one his father kept in the arm of the r ecliner at the Leona rd residence.
Robert Leonard further

stated that on a later date the defendant g otin an argument and bragged that he was “not worried about killing someone else; [because] he killed somebody.” Furthermor e, Robert testified the defendant confessed to Robert' s father that he killed the victim.
TBI For ensic Age nt Don Carmon testified he conducted ballistics testing on bullet fragm ents and car

tridge casing s recove

red fro m the sce

ne. Carmo n testi fied t he cart ridge casin gs wer e consisten t with the bullet fragments. On cross-examination, Carmon stated a latent fingerprint analy sis was not requested on the casi ngs, an d such an examinatio n would ordinarily be done

prior to his ballistics testing. TimothyLeonard testified he wa s 15 years old at the time of the victim's death, and he and Eric Dish

man were at the L eonard r esidenc e on Dec ember 31 , 1996. At a pproximate

ly 1:00 a. m., Rob ert L

eonard, Blackma

n, and the defenda nt enter ed the re sidence . The vic tim called, and the defendant talked with him. Timothy testified t he defe

ndant sai d the vict

im “disrespected” him, and the defendant told the victim, “I 'll kill you, or I 'll whip you.” TimothyLeonard

further stated the

defenda nt then dr ove him, D ishman, Rob ert, and Blackmanto the re si den ce wher e the vic tim was loc ated. He and Rober

t exited the

vehicle and followed the defendant to the side door of t he residence, while Dishman and Blackman remained in the veh

icle. The victim and the defendant briefly exchanged words, and the defendant firedfive or six shots. They then procee ded to the defendant's residence , and, while drivi ng, the defendant pointed the weapon at Dishman acc using him of “doing something ” wit h Blackmanwhile the defendant was out of the car. Timothy further cor roborated Robert’s testimon y concer

ning the defenda nt's pla cement o f the wea

pon in the a

ir conditi oning du ct. Timothyadditionally stated the defe ndant threatened to kill him if he informed any one of the murder. Eric Dishman testified he was 14 years old at the time of the shooting. He stated the defendant was angry

when t a lking on the phone at the Leona rd residence; they

drove to the victim’s residence; he heard gunshots; the defendant threa tened to kill him if he told anyone he shot the victim; and the defend ant thre atened t o kill him if h

e was “me ssing wit

h [his] girlfriend.” Bryc e Dallas te stified the defendant thre atened h imon January 10, 1997, stati ng “he'd already killed once recently

and that it wouldn't bother him to kill again.”-4-

Michael Grego

ry , an inmat

e in the Put

nam County

Jail, testified he met the defendant in jail in January

1997. He f

urther te stified th

e defendant stated he shot th e victim because

the victim “disrespected” him.
The defense offered

the testimony

of Karen Dubree, Sharon Norton, Reba Sande rs, and the defendant.
KarenDubree testified she and her boy fr i end had a New Year’s Eve pa rty and wer

e drinking with the vi ctim. Nina T urner a ccomp anied the vi ctim but wa s not drink ing. Dubree stated Tu rner wa s angry

withthe victim

because “she didn ’t want to

be with him [and] [s]he had other plans that did not include him.” Dubree further testified Turner r equeste d to leave the victim at her resid

ence, a nd when sh

e refus ed, Turner said s he would s hoot the vi ctim if she had a gun. Dubree describe d the victim and Turner’s relationship as “love/hate,” and the victim “tormented her.”
Sharon Norton te stified th at while a t Dubree ’s New Y ear’s E ve party , Turner

“told [her] about how [the victim and she] had been fighting, and . . . if her father would have let her have a gun that he owned, she would have shot [the victim].” Norton further stated Turne r wanted to leave the victim at the party and go to Robert Leona

rd’s house.
Reba Sanders, Turner’s cousin, was her neighbor in 1996. She testified Turner told her at some time p

rior to the

homic ide that t

he victim, while drunk, knocked down her door, choked her and caused a bruised e ye and red marks on her throat.
The defendant testified he went to Robert L eon ard’ s house on New Year’s Eve, and Robert told hi m ab out his sexual relationship with Turner. Robert further told him Turner disliked the victim . After t heir discussi on, the de

fendant and Rober

t left the residence in search of Turner and beer. While driving, they saw Turner’s car at a ga s station, stopped, and Robert talked with her.
Su bs eq ue nt ly, the defendant and Robert picked up Blackman and

eventually wound up at Robert’s residence. The defenda nt testified the victim phoned the residence. Robert then gavethe phone

to the def endant, t elling h imto “[t]ry and calm [the victim] down.” Alth ough their conversation began in a friend ly ma nner, th e victim st

ated, “I know he’ s sleepin g with her” and began cursing the defendant, so the defendant gave the phone to Robert. Robert and the victim argued and “cuss[ed]” at eachother, and Robert stated, “[T]hat mother- f----r hung up on me.” Robert the n called the victim, they a rgued, and “there was more cussing.” According to the defendant, Robert then hung up the phone, stating, “ I’ll show h im. I’l l fix him.”
The defendant testified Robert then got his father’s gun, removed the bullets, replaced the bullets, and requested the defe ndant to ta ke him to the

victim’s h ouse. The

defenda nt, Blackman, Dishman, Robert, andTimothy then went to the residenc e. Upon arr ival, Robe

rt,-5-

Ti mo th y, and the defendant exited the vehicle; Robert knocked on the door; and Rober t informedthe victim

they “nee d[ed] to talk.” The defendant stated he then looked toward the vehicle and thought he saw Blackman and Dishma n engaging in sexual activity . As he holleredat her, he heard

gunshots; then he, Timothy, and Rober t got back in the vehicle. The defendant testified Robert shot the victim.
The defendant conceded they returned to his residenc e where he helped hide the weapon, and he had

to get “rough” with Blackman when she went outside screaming about the shoot ing. The defendant conceded he took the g un to I ndianapo lis “to get rid of [it],” but denied that he told fellow inmate Gregory he shot the victim.
Based on this evidence, the jury convicted the defendant of second degree murder.

I. SUFFICIENCY OF THE EVIDENCE
The defendant contends the evide nce was insuffic ient to suppo rt his conv ictio n. We disagree.
A. Standard of Review
When an accused

challenges the sufficiency of the evidence, this court must review the record to determine if the evidence adduced during the trial was suf

ficient “to support the findi ngs by the trier of f

act of guilt bey ond a reasonable doubt.” Tenn. R. App. P. 13( e). This ruleis applicable to findings of guilt predicated upon direct evidence, circumstantial evidence or a combination of di rect and circumstantial evidence. State v. Brewer , 932 S.W.2d 1,18 (Tenn. Crim. App.1996). In determining the sufficiency

of the evidence, this court does not reweigh or reevaluate the evidence. Stat e v. Ca bbage , 571 S.W.2d 832, 835 (Tenn.1978). To the contrary , this court is required to a ffor d the state the strongest legitimate view of the evidence contained in the record as well as all reasona ble and legitimate inferences which may be drawn from the evidence. Statev. Tuttle , 914 S.W.2d 926, 932 (Tenn. Crim. App.1995).
The trier of

fact, no t t his court , resolves questions concerning the credibility of the witnesse s, the weight and value to be given the evidence as we ll as all factual issues raised by the evidence. Id. In State v. Grace , the TennesseeSupreme Court stated, “[a] guilty verdict by th e j ur y, approve d by

the trial judge, accre dits the te stimony of the wit

nesses f or the Sta te and resolves all confl icts in f avor of the theory

of the State.” 493 S.W.2d 474, 476 (Tenn. 1973). B. Analysis
Robert and Timothy L

eonard both testified they witne ssed th e defendant shoot the victim. Eric Dishman testifiedthe defe ndant thr eatene d to kill him

if he told anyone he

shot-6-

the victim. Bryce

Dallas testified the defendant threatened him, stating he had r ecently killed and would kill again. Furthermore, Michael Gre gory testified the defendant confessed to the shoot ing. Although the defendant denied shooting the victim, it is well within the province of the ju ry t o dete rmine witness credibility. State v. Oody , 823 S.W.2d 5 54, 558 (T enn. Crim. App. 1991). Viewing the evidence in a light most favor able to the state, the evidence was more than sufficient to support the conviction.

II. EXCULPATORY EVIDENCE
The defendant contends thestate failed to provide him with a security video obtained from a local motel which may

have contained

conversations of the victim on the phone shortly before he was killed. The state contendsthe issue

is waived

because the defe ndant fa iled to timely file a motion for new tria l.
A. Motion for New Trial
A mo tion for new trial “shall be made . . . within thirty days of the da

te the or der o f sentence is en te re d. ” T en n. R. Cr im . P . 3 3( b) . T hi s p ro vi si on is ma nd at or y, and the time for filing may

not be extended. See Tenn. R. Crim. P. 45( b); see also State v. Ma

rtin , 940 S.W.2d 567, 569 (Ten

n. 1997); State v. Dodson , 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989). The thirty (30) day provis ion is jurisdictional, and an untimely motion is a nullity

. Dodson , 780 S.W.2d at 780. It deprives the appellant of the opportunity to arg

ue on appeal any issues that should have been raised in the motion for new trial. Martin , 940 S.W.2d at 569. Furthermore, the untimely filing of

a motion for new trial does not to ll the time f or filing a notice of appea l; thus, an untimely motion for new trial will also result in an untimely notice of appea l. See Statev. Davis , 748 S.W.2d 206, 207 (Tenn. Crim. App. 1987). Unlike the untimely filing of the no ti ce of

ap pe al , t hi s c ou rt do es no t h av e t he au th or it y t o waive the untimely filing of a motion for new trial. See Tenn. R. App. P. 4(a); State v. Givhan , 616 S.W.2d 612, 613 (Tenn. Crim. App. 1980). However, this court, in its discretion, may take notice of plain error

which affec ts a substantial right of the defendant where it may be necessary

to do substantial justice. Tenn. R. Cr

im. P. 52(b) ; State v. Johnson , 980 S.W.2d 414, 418 (Tenn. Crim. App. 1998). B. Analysis
The judgment was entered October 29, 1998, and the motion for new trial was not filed until December 16 , 1998, clearly be yond the 30-day

requirement. The issue is waived. Furthermore, we are unable to find plain error under Tenn. R. Crim. P. 52(b). During a jury-out conf

erence, t he Ass istant District Attorney Gene ral stated the tape was viewed b y la

w enfor cement, and they de termined it contained nothing pertinent to the case. The offi cers ha

d returned th e tape t o the motel, and the Assistant District Attorney Genera l stated th e tapes w ere “pr

obably in [the motel’s] possession.” There is no indication-7-

a request was made or subpoena issued by the defendant for the

tape. Similarly, at the motion for new trial, there was no indication that the defendant requested or subpoenaed the tape from the motel. Nor is there any indication the defendant sought testimony at that hearing

from the officer who viewed the tape. Obviously , the tape is not in the record for our review. We ar e unable to specul ate as to the c ontents of the tape . Certain

ly, there is no showing of plain error. See Statev. Smith , 24 S.W.3d 274, 282 (Tenn. 2000) (requir ing that the rec ord clea

rly establish what occurred in thetrial court, and a breach of a clea r and unequivocal rule of law in order to establish plain error). This issue is without merit.

III. DESTRUCTION OF EVIDENCE
The defendant alleges the state’s ballistics testing of the bulle t casing s, subseque

nt to his request for

fing er pr in t a na lys is , c on st it ut ed il le ga l d es tr uc ti on of ev id en ce . S pe ci fi ca ll y, he contends his due process rights were violated because the ba llistic s testing destroye d the ability to conduct any fur

ther fingerprint analy sis. The state again argue s the issue is waived for failure to file a t

imely motion for

new tria l. Howeve

r, this issu e is not waive d becau se if it were sustained, it would

result in dismissal of the case. See State v. Electroplating, Inc

. , 990 S.W.2d 211, 220 (Tenn. Crim. App. 1998) (noting Tenn. R. App. P. 3(e) w aiver do es not app ly when the issue , if merit

orious, w ould result in dismissa l o f the prosecution). We, therefore, address the issue on its merits.
A. Ferguson Requirements
The state has a duty

to prese rve all e vidence subject to

discovery a

nd inspection under Tenn. R. Crim. P. 16. State v . Fergu son , 2 S.W.3d. 91 2, 917 (Te nn. 1999) . Once it i s determinedthe state failed in its dut y to preserve evidence, we must consider the f ollowing factors to determine the consequences of the brea ch: “(1) [t]he degree of negligenc e involved; (2) [t]he significance of the destroye d evidence, considered in light of the probative value and reliabil ity of secondary

or substitute evidence that remains available; and (3) [t]he sufficiency of the other evidenc e used at

trial tosupport the conviction.” Id. The prima ry objectiv e is to protect the defendant’s right to a “f undamentally fair

trial.” Id

. B. Failure to Preserve Bullet Casings
We must initially

determine whether the state, in fact, failed to preserve the evidence. Alth ough it may

be the sta

te’s han dling of

the casi n gs made

it impossible for a subsequent fingerprint

analysis, the rec ord does not necessarily establish this. A chronological examination of the record before us is appropriate.
Defendan t filed a mo tion on Aug ust 12, 199 7, reque sting the state to pe

rform a fingerprint

analy sis on the bullet cas ings. Al though th e mo tion was apparently heard on February 26, 1998, n o such tra

nscript isin the record. On March 6, 1998, the trial court-8-

e nteredan order referring to the February

26 th hearing and ordered the state to “pro vide th e defendant’s experts copies of all fingerprints taken from the crime scene. . . for independent analysis.” On May 14, 1998, def endant filed a motion requesting state pay ment of expert fees for “Gary W. Jones, an e

xpert in fin gerpr

int analy sis.” No o

rder re lating to this requ est is in the record.
On May 22, 1998, defe

ndant filed a motion to suppress and/ or dismis s alleging the District Attorney’s off

ice failed to advise the officer to request a finger print analysis, and the “evidencewas destroye d.” The motion refers to an atta ched cr ime labor atory ballistic s report ; howeve r, that report is silent as to whether fingerprint analy sis would still be possible. No order regarding

this motion appears in the record.
Just prior to th

e begin ning of t he jury trial on Se

pte mber1, 1998, defense counsel brought the motion to the attention of the trial court, stating it had not been heard. Upon being questioned by the trial court a s to whethe r h e had any indication the casings would have detecta ble fingerprints, defense counsel said the state’ s ballistics expert should be ab le to testify “whethe

r or not there wo uld still be any proof

that there was any

thing on there.” The state argue d a fing erprint a

naly sis would

not be exculpatory

even if defendant’s prints were not present and someone else’s were. Thereafter, du ring his trial testimony, the ballistics expert testified a fing erpr int analy si s was not requested. When defense counsel asked if a fingerprint analy sis could be performed after the ballistics testimony, the expert stated,

You would

have to ask the latent examiner. I’m not sure if it would be viable to do so or n ot. I w ould im ag in e t he y w ould have to take elimination prints from me and some others.
Neither defense counsel nor the state asked any furthe

r questions, and the witness was excused. No further testimony wa s introduced relating to the viability of securing a finge rprint an aly sis.
Based upon the record before us, we ar e unable to conclude evidence has bee n destroyed, and are

unable to

necessa rily conclude it was impo ssib le to obta in a fingerprint analy sis. Although this may be the c ase, defendant has not cited us to any portion of the record which clearly e stablishes this impossibility. See Tenn. Cri m. App. R. 1 0(b); State v. Schaller , 975 S.W.2d 313, 318 (Tenn. Cr im. App. 1997) (noting failure to make appropriate references to the record ordinarily

waives the issue).
Neverth eless, we note th

e state d id not rais e this poin

t a t t rial or on this a ppea l. We elect to address the issue on its merits.-9-

C. Ana lysis of Ferguson Factors
We first add

ress the degre e of negli gence i nvolved. See Ferguson , 2 S.W.3d at 917. The defenda

nt specif ically requested the fingerprint analy sis by motion filed in August 1997. It appears the District Attorney ’s office was negligent in not adequately communicating to the officer to request the analy sis; however, there is no evidence of bad faith. In fact, unsucce ssful effortswere ma

de at the crime sc ene to se cure fi ngerp rints in the

kit chen. We c onclude the state was guilty

of simple neglig ence, a s opposed to gross negligence

. See id . at 918 (finding simple as opposed to gross negligence ). Next, we ap pl y Ferguson factor two, req uiring a determin ation of th e degree of significance

of the destroye d evidence. See id . at 917. The d

efenda nt contends the spe

nt shell casin gs might have Robert Leona rd’s fingerprints on them, which would be cons istent with defenda nt’s t estimony. Even if the def endant is correct in his assumption, the presence of Robert Leonard’ s finge rprints on the bulle t casing s would not

be deter minative. It is undisputed the wea pon bel ong ed t o Leo nar d’s fat her , wi th who m R obe rt r esi ded . It was the state’s theory that the

defendant got the pistol from the recliner at the L eonard residence. The state did not end

eavor to prove the defendant loaded the pistol. There was a lso testimony that Leonard’s father allowed family members and guests to use his weapons. The prese nce of Robert Leonard’s fing erprints would be probative as to the person wh o at some time loaded the pistol, but not necessarily probative a s to the person who shot the victim. I n s hort, the presence of L

eonard’s prints on the casings would not exonerate the defe ndant.
Fi na ll y, we ap pl y Ferguson factor three, requiring a de termination of the sufficiency of the remaining evidence. See id . The evi dence o f the def endant’ s guilt wa s indeed stron g. Robert an d T im ot hy L eo nard tes tified the y w itnessed

the defe ndant shoot the victim; Eric Dishman testifie d he hea

rd the sho ts, and the

defenda nt threa tened to kill him if he told anyone he shot the vi ctim; Bryc e Dallas testified the defendant threatened him on January 10, 1997, stating he had recently

killed someone and would do it again; and inmate Michael Greg ory testifie d the def

endant c onfesse d to the sho oting. T his facto r does not favor di smissal.
We conclude

there wa s no showin g of fundamenta l unfairn ess, and d ismissa l of th e case wa s not warr

anted. T his issue iswithout me

rit.

IV. CONTINUANCE / MISTRIAL
The def endant c ontends th

e tria l court erroneously f

ailed to grant a continuance or declare a mistrial when a witness became ill, hospitalized, and unavailable to testify.
Alice Pearl Goolsby, Nina Turner’s mother and a subpoenaed defense witness, b ecame ill in court

during t he state’s case-in-chief. She was then taken to the hospital a nd was unavaila ble to testify for the re

mainder of the proceeding s. The defendant argued her-10-

testimonywould have shown inconsistencies in Tur ne r’s testimony reg arding Turner’s relation ship with th e victim. The defendant also argued Goolsby’s testimony would show Turner had a motive to kill the victim, or have him killed, because she di d no t have a good relation ship with the victim. The trial court concluded the testimony was not material to the case. First, we note this issue is waived because the defendant fa iled to file a timely motion for new trial. See Tenn. R. App. P. 4(a); Givhan , 616 S.W.2d at 61 3. Howev er, we c hoose to review this issue to determine i f plain e rror ha s affec ted a subs tantial r ight of t he defe ndant. Tenn. R. Cr

im. P. 52(b) ; Johnson , 980 S.W.2d at 418.
The granting or denial of a continuanc e is a matter left to the discr etion of the t rial judge, whose decision will not be distur bed absent a

clear s howing o f grossabuse of this discretion to the prejudice of the defendant. State v. Hurley , 876 S.W.2d 57, 65 (Tenn. 1993). Likewise, a reviewing court will not overturn a denial of a mistrial absent

an abu se of discretion. State v. Brown , 53 S.W.3d 264, 284 (Tenn. Crim. App. 2000).
We find no abuse of discretion here and no plain error . Other witnesses testified about Turner’s “love/hate” relationship with the victim. We have further reviewedGoolsby’s pretrial statemen

t upo n which defendant relies and find nothing signif icant that would have affected the outcome of the trial. This issue lacks merit.

CONCLUSION
Based o n the for

egoing , we aff

irm the jud

gment of the trial court.

___________________________________ JOE G. RILEY, JUDGE