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

Briefs A ugust 15, 2001
STATE OF TENNESSEE v. KENNETH PAUL DYKAS
Appeal from the Circuit Court for Rutherford County No. F-44931A J. Steve Daniel, Judge

No. M2000-01665-CCA-R3-CD - F iled March 5, 2002

After a lengt hy t rial, a Rutherf

ord County

jury found the

defenda nt, Kenneth Paul Dyka s, guilty of first-degree

murder, especially

aggravated robbe

ry, and conspira

cy to commit

especially a

ggravated
ro bb er y. Following a separate penalty trial on the first-degree murder c onviction, t he same jury sentenced the defe ndant to lif

e with out the po ssibility

of parol e, and the

trial cou rt subseq uently sentenced the defendant

as a Range I

offender to eleven y

ears on the conspiracy

conviction and as
a violent of

fender to 24 years on t

he especially

aggr avated r obbery convicti on. The tr

ial-courtimposed sentences were ordered to run concurrently

with one a

nother bu t consecutively

to the fir stdegree murder sente nce. I

n this appe al, the de

fendant complain s that the e

vidence is insuffi cient, that numerous errors in the jury selection process taint his convictions, that DNA test results were improper ly admitted, that the state suppressed exculpatory evidence about its jailhouse informant who testi fied at trial , and t hat co nsecu tive s enten cing w a s not justified. After a comprehensive review of the record, the

briefs o f the par

ties, and the applicable law, we affirm the judgment of the trial cou rt. Tenn. R. App.P. 3; Judg ment of t he Circui t Court is

Affirme d.

J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which D AVID H. W ELLES and J OE G. R ILEY , JJ., joined.

L. Gilbert Anglin and David Brag g, Murfreesboro, Tennessee , for the appellant, Kenneth Paul Dy kas.

Paul G. Summers , Attorne y General and Repor

ter; Jennif

er Smith, A ssistant A

ttorney Genera l; Wi lliam C. W hitesell, Jr., District Attorney Genera l; Thomas F. Jackson, Jr., Assistant District Attorney General; and J. Paul Newman, Assistant District Attorney General, for the

appelle e, State of Tennessee.-2- OPINION

Between 5:00 p.m. and 5:30 p.m. on February 20, 1998, Donald Roscoe Greenwood
was bludgeoned to death with a claw hammer in Room 178 at the Jackson Motel in Murfreesboro, Tennessee. Mr. Greenwood, who was 69 y ears old and suff

ered fr om Pa rkinson’s Disease, had moved a short time before to Murfreesboro an d rented a room at the motel to be closer to the Veterans’ hospital where he was being treated.

From the vantage point most favorable to the state, the evidenc e at trial demonstrated that the defendant and his girlfriend, Debor ah Reese, had taken up residence in Room 184 at the
samemotel a month earlier. Their financial situation was bleak. She wasworking at a Hardee’s restaurant across the street from the motel, and for about a y ear, the defendant had not held a steady job. The Jackson Motel manager testified at trial tha t the coup le was be

hind in the

ir rent pa yme nts at the time of the victim’s death.

The defendant and Reese befriended the victim the same day

that the victim

settled into the motel room. On February 19 , the follo wing day , t he victim w ent to the motel off

ice to submit a list of things that needed to be fixed or cleaned in his room. The defendant offered to the motel manage

r to help clean Mr. Greenwood’s room. The motel manag er, Nancy Robinson, testified
a t trial tha

t she also r

ecalle d the def

endant te lling he r that he and Rees e would “ look afte r the old man” and take some of the burden off of her. Ms. Robinson became suspicious of the couple as soon as they made fr iends with

the victim

. As the day prog

ressed, the defendant

ingratiated himself further with the victim by volunteering to drive h

imto Wal-Mart the next day. The victim accep ted the of fer. As p art of the

ir investigation, Murfreesboro Police Department officer s were able to construct a time line tracking the activities of the defendant, Reese, and the victim on February

20, the day of the mur

der. Based on receipts and numerous interviews with local merchants, the officers determined that the victim purchased

household-type items totaling $161.47 at Wal-Mart at approximately 12:30 p.m. At 1:50 p.m. the victim and a woman, who was later identified as Reese from a photo spread, purc hased beer, liquor, cigarettes, and deli food at a local ma rket/pa ckage store. Th

e victim pa

id for the items in cash.

The next time tha t the coup le and the victim were spotted together was af ter 2:00 p.m. when Eddie Tennyson, the motel maintena nce supe rvisor, w ent to the

victim’s a

partmen t to retrieve
a cordless drill that had been borrowed earlier that day . Tennyson testified that the de fendant was putting up a c abinet for the victim and that Reese and the victim also were pre sent. Around 4:00 p.m., Val erie Moore placed a call to the victim’s apar tment. Ms. Moore, who was a friend of th e victim, testified that

a man answered and

handed the telephone to the victim. The victim explained to her th at the person who answered the phone was he lping him with things in the apartment that needed to be done.-3- The last outsi de co ntact wit h the vict im was at a

pproximate

ly 5 :00 p.m. when his former wife, Shirley

Barrett, called. Ms. Bar

rett test ified tha t she and t he victim t

alked fo r rough ly ten minutes, and during the conversation Ms. Barre tt heard male and female voices in the backgr ound. Ms. Barrett stated that the victim told her that “Debbie and Ken,” who lived i n apartme nt 184, we

re hanging up shelves fo

r him that h

e had pur chased a t Wal-Mar

t.
Al ice Lovvorn was working the 3:00 p.m. to 11 p.m. shift at the Jackson Motel on February 20. At approximately 9:00 p.m. she saw Reese pee

ping thr ough the venetia n blinds into the victim’s room. According to Lovvor n, the defendant then walked up, bang ed on t he victim’s door, and tri ed to open it. When he was unsuccessful, the defendant walke d to the office, and Lovvorn handed h imthe keys to the victim’s apar tment. Lovvorn

testified that she saw Reese and the defendant go inside the apartment, afte r which Lov vorn hear d a scream. Lovvorn c alled the poli ce, and she to ld th e coup le to c ome ou t of th e room and no t to t ouch a nything.

Officers withthe Murf

reesbor o Police D epartme

nt responded to the

call, and ag ents withthe Tennessee Bureau of I nvestigation were summoned to p rocess t he crime scene. Crime
scene photographs and

a videotape were introduced at trial. Signific ant amounts of blood and blood spatter were discovered throughoutthe room, including on the bathroom sink, the top of the microwave, the front of the refrigerator , and on the ceiling directly above the victim’s body. A claw hammer with a large amount of blood staining was found under neath a table in t

he ro om. The victim’s body was on the floor ne xt to the bed.

Detective Joel Davis was one of the Murfre esboro po lice off

icers who respond

ed to the homicide

call. He was directed to interview the defendant and Ree se because evidently they
were the last pe ople who h ad been with the vi ctim. Det

ective D avis conducted the interview in the couple’s room. Detective Davis testified that he became concerned by

their “lackadaisical” attitude. The couple was unable to provide genera l information about when and where they

had be en th at da y. The defendant inqu ired at one point w hether h e was g oing to ja

il; similar ly, Reese a

lso wante d to know if she was going to be arre sted.

The police sought and obtained consent from the couple to sear ch their room and vehic le. T he police also decided that the defendant and Ree se should be questioned at the police station. At the police station, the couple answered questions, gave pe rmission to have their blood drawn, and allowed their clothing to be examined for the presenc e of bloo d by black light and luminol testing. No blood was detected on the clothing.

TBI Agents Steve Scott, Oakley Mc Ki nn ey, and Joe Minor testified at trial about the crime scene investigation. After the victim’s apartmen t wa s proces sed for e

vidence , the ag ents searched and examined the defendant’s apartment. They wer e particularly

interested

in looking for items thatmight be bloodstained. The agents found and collected bloodstains on the doorjamb of the defendant’s apartment, on the concrete ground directly

outside his apartment, and on a pair of boots underneath the bed.-4- Agent McKinney subseque

ntly examined

various items of evidence for the presence of latent fingerprints. H e testi fied that he was unsuccessful in getting pr ints from the suspected murder weapon, the hammer. Like wise, Agent McKinney

tried but was unable to lift any prints from the victim’s wallet, its contents, or his briefcase. La tent pri nts, howe ver, we

re deve loped fr om a Kessler liquor bottle, a coffee can, and a magazine found in the victim’s apartment. The defendant’s prints were on the bottle and magazine, and Reese’ s prints appeared on the coffee ca n.
TBI Agent Connie Howard, a foren sic scien tist speci alizing in

DNA ana lys is, test ifie d about the bloodstains that she tested. The blood stain samp le collected from t he door f rame of the defendant’s apartment matche d that of the victim. The bloodstain on the concrete in front of the defendant’s apartme

nt matche d the def

endant’ s bl ood. One bloodstain sample taken from the defenda nt’s work boots was tested a

nd found to

match tha

t of the victim.

The most detailed testimony at trial was provided by Reese. On February

23, 1999, Reese pleaded guilty

to first-degree murder, especially ag gravated robbery , and conspiracy . For the murder, she received a life sentence; for the especially a

ggravated robber

y, fifteen y

ears; fo r the
co ns pi ra cy, ei gh t ye ar s. Al l s en te nc es we re or de re d t o r un co nc ur re nt ly.

Reese corroborated the earlier proof of the places and times that she, thedefenda nt, and the victim were together on the day of the mur

der. Reese testified that throughout the afternoon, the three of them were drinking. She and the de fendant went back and forth several times between their apartment and the victim’s apartment. Reese r emembered being in the victim’s room when Moore ca lled abou t 4:00 p.m. a

nd when B arrett l ater ca

lled abou t 5:00 p.m.

Reese recounted

for the ju ry the even ts lead ing u p to the mur

der. She te stifi ed, “

We
were sitting around the table. It was a round table. And I fig

ured, you know, we’d j ust ge t him drunk and maybe ta

ke his money. But that didn’t happe n that way. I t just went bad.” According to Reese, the defendant suddenly struck the victim in the head with the hammer that had been used to hang up the cabinet. The victim fell off his chair and l anded pa

rtially on the bed . The vic tim implored them, “[Y]’all don’t have to do this.” The defendant wanted to know if the victim had a pulse to determine if he was alive. Reese checked and told the defendant that she detected a pulse, whereuponth e defen dant procee ded to str ike the vi ctim repe atedly

until he ha

d no pulse. Reese testified that the defendant then told her to

get the victim’s w allet, which she did, and she removed $370.

Reese

testified that she and the defendant returned to their apartment, clea ned up, changed clothes, and again started drinking. About 7:45 p.m. they took $70 of the victim’s mo ne y, drove to Food Max, and made additional purchases. Along the way , they threw the soiled clothing in a dumpster. When they returne d to their a

partmen t, Reese b egan c ooking, and she ma de up a pla

te of food to take to the victim so that they would have an excuse to find the victim’s body . Reese testified about finding the door to the victim’s apartment locked and summoning he lp.-5- Dr. Charles H arlan pe

rformed the autop sy

on the victim’s body. He testified that the
cause of death was blunt trauma to the head. The victim had susta ined multip le frac tures to h is skull. The victim’s left ear was injured, and his right ey e was basically destroy

ed. There were numerous other injuries to the victim’s chest and neck that were consistent with a claw hammer. Dr. Harlan testified that he also found numerous broken ribs on the anterior and posterior portion of the victim’s bo dy.

The final ke y pi eces of

evidenc e that th e state int roduced were letters that the defendant had written to Reese while he was incarcer at ed a nd awaiting trial and inculpatory confidences that the defendant ha d share d with cellmate, Steve Riggan. While the defendant’s letter s didnot conta

in express admissionsof guilt , in th e l ight most favorable to the state, they reflected appealsby the defe

ndant for Reese to “hang tough,” to reme mber “no deals,” and not to hurt him or let hi m d own . In the letters, the defenda nt also re peatedl y pr ofessed his love a

nd devotio n and his intention that he and Reese be married.

Steve Riggan testified that for approximately three weeks in May

and June of 1998, he shared a

cell with the defendant, who was awaiting trial. Rig gan was being held for a probation violation. At first, the defendant talked with Riggan about how the defendant came to be arreste d. Riggan testified that initially the defendant de nied knowing what happened, but then the defenda nt would talk about how Reese actually murdered the victim. Riggan testified that fina lly the defendant admitted that he “in fact had killed the man and t hat he was the one that put the hammer on Mr. Greenwood.” Th e state elicited from Riggan the deta iled account of the murder provided by the defendant to Riggan. After Riggan was rele ased in June, he decided that the “right thing to do” was tell the polic e. Rigg an wrote a letter to the police and subsequently provided a videotaped statement to Detective Guthrie.

At the conclusion of the state’s case-in-chief, the defense rested without presenting proof.

The jury

found the

defenda nt guilty of preme ditated f

ir st -degree murder, fe

lony murder, especia

lly a ggra vated ro bbery , and con spiracy

to commit e specially a

ggra vate d robbe ry. The convicting jury

also heard evidence and deliberate d o n the def endant’s punishment for committing first-degree murder. The jury sentenc ed the defendant to life without the possibility of pa rolebased on the aggrava ting factors (a) that the murder wa s especially he inous, atrociou s, an d cruel , (b) that the murder was committed to avoid or prevent the arrest or pr osecution of the defenda nt, and (c) that the victim was killed in the commission of a robbery in which the defendant played a substantial role. See Tenn. C ode Ann. § 39-13-20 4(i)(5) , (6), (7 ) (Supp. 2 001). At a separa te sentenc ing hea

ring, th e trial c ourt then

sentenc ed the defendant as a Ra nge I off ender to eleven years on the

conspiracy

conviction and as a viol ent off ender to 24 y ears on t

he espec ially aggravated

robbery c onviction; those two sentences were ordered to be served concurrently to each other but consecutively

to the life without parole sentence. This appeal ensued.1 Ou r discu ssion of the issues in thi s opi nion i s i n a dif fere nt order tha n their prese ntation in the p arties’ briefs.

2 Cit ati ons and page refe rences to the recor d are c onspic uously absent from the argument s ecti on of t he defendant’s brie f. The rul es of thi s cour t warn c ounsel that “[i ]ss ues whic h are not supported by a rgu me nt, citation to autho rities, or appro priat e ref ere nces to t

he re cord wil l be tr eat ed as waive d in thi s co urt .” Tenn. Ct. Cri m. App. R. 10(b). Despit

e the defendant ’s wai ver, we have deci ded to a ddress the i ssues rai sed on appe al s o that thi s appea l might be dis posed of

in an e xpeditious manner and brought to a proper conclus ion. Tenn. R. App. P. 2. Counsel shoul d be mindful that

dwindli ng judicial res ources increasingly curb the court ’s abil ity t o reli eve lit igants of the consequences of no ncom pliance w ith the rules.

-6- I. Sufficiency of the Evidence 1 2

The defendant complains that the e vidence is insuffi cient to

support the jury’s ver

dict that he eng aged in

a “conspiracy

” to commit especially ag gravated robbery . He also maintains that his conviction for premeditated, first-degree murder is based on legally insufficient evidence and, therefore, must be reversed. We are unpersuaded that the evidence supportin g these

convicti ons is legall y in firm.

When an accused challenges the sufficiency

of the eviden ce, an ap pellate court inspects the evidentiary landsca pe, in cludi ng the d irect and ci rcums tanti al con tours , from the va ntage pointmost

agreeable to the prosecution. The reviewing court then decides whethe r the evidence and the inferences that flow therefrom per mit any rational factfinder to con clude beyond a reaso nable doubtthat the defendant

is guilty of t

he charged crime. See Tenn. R. A pp. P. 13(e ); Jackson v. Virginia , 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. Ap p. 1990), overruled on other grounds by State v. Hooper , 29 S.W.3d 1 (Tenn. 2000).

In determining suffici ency of the proof, the appellate court does not replay and reweigh the evidence. See State v. Matthe ws , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Witness credibility, the weight and va lue of the evidence, and factual disputes are entrustedto the finder of fact

. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1 978); Liakas v. S tate , 199 Tenn. 298, 30 5, 286 S.W.2d 8 56, 859 (1 956); Farmer v . State , 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). Simply stated, the court will not substitute its judgment for that of the trier of fact. Instead, the court extends to the State of Tennessee the strongest legitimate view of the evi dence con tained in the record as well as all reasonable and legitimate infere nces that may be

drawn from the evidence. See Cabbage , 571 S.W.2d at 835.

The defendant in this case was charg ed in separ ate coun ts with pre

meditate d, firstdegree murder and felony

murder. The jury

found the defendant guilty on both counts, and the trial court correctly accepted both verdicts but then merged the m into a single conviction for first-degree murder. See Carter v. State , 958 S.W.2d 620, 6 24-25 (T enn. 1997 ); State v. Addison , 973 S.W.2d 260, 267 (Tenn. Crim. App. 1997). When the me rger occurs, proof of e ither felony murde

r or premeditated

murder is sufficient to sustain the conviction. See State v. Patric k Win gate , No.-7-

M1999-00624-CCA-R3-CD, slip op. at 7 (Tenn. Crim. App., Nashville, May 25, 2000), perm. app. denied (Tenn. 200 0). T he defendant in this case, consequently , cannot profit on his evidence insufficiency

claim unless the proof of both felony murder and

premed itat ed mur der is lacki ng. Such is not the case.

The elementso f premeditated, first-degree murder are a “ premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202 (Supp. 2001). The defendant isolates portions of the testimony of Reese a nd Riggan, which the defe ndant cla ims proves th at the kill

ing wasa spontaneous reaction. The evidence in this case, however , viewed most favo

rably to the stat e clear ly supports the jury’s conc lusion that the killing was premeditated.

The element of premeditation is a jury question and may be e stablished by proof of the circumstances surrounding the killing. State v. Bland , 958 S.W.2d 651, 660 ( Tenn. 199 7); State
v. Brown , 836 S.W.2d 530, 539 (Tenn. 1992). Several factors are reg arded as relevant to the existence of premeditation, including “the use of a deadly weap on upo n an unarmed victim; the particular cruelty of the kill ing; declarations by the defendant of an intent to kill; evidence of procurement

of a weapon; preparations before the killing

for conc ealment o f the cr

ime, and c almness immediate

ly after the killing.” Bland , 958 S.W.2d at 660. Most of these factors appear in this case. The defendant wielded a claw hammer, a deadly we apon, upon an elderly , infirm, and unarm e d victim. The killin g was pa rticular ly cruel with the victim begging that “y ’all don’t have to do this.” Then after the murder, the d efendant calmly washed his hands and the hammer in the victim’s bathroom , and he and Reese carefully orchestrated a

coverup so they

could pretend to discover the bo dy. Perhaps most telling was the d efenda nt’s instr uction to Reese to c

heck the victim’s pulse to
see if he was still alive; when she reported that the victim had a pulse, the defendant resumed striking the victim until he was dead. From these circumstances, the jury rea sonably could conclude beyond a reasonable doubt that the defendant preme ditated the murder.

The de fendant has not assailed the sufficiency of the evidence as it relates to t h e felony murder guilty

verdict, and we detect

no basis to do so. The jury was e ntitled to credit Reese’s testimonythat after the vicious and letha l assault, they

stole $370

in cash from the v

ictim’s wa

llet. Also, Steven Riggan testified that the d efendant had confided stealing money from the victim’s wallet in connection with the murder.

Finding no insuffici ency wit h the evidence presented at trial, we af firm the defendant’s conviction for first-degr ee murder.

The defendant’s argument that the record

is barre n of evide nce that he consp ired with Reese is, likewise, unavailing. Aconviction for conspiracy to commit especially ag gravated robbery requires evidence that

two (2) or more people, ea ch havi ng the culpable m ental sta te required for the offense which

is the object of the conspiracy and each acting for the purpose of promoting or facilitating commission of an-8- offense, agree that one (1) or more of them wi ll enga ge in conduct which constitutes such offense.

Tenn. Code Ann. § 39-12-103(a) (1997). An additional element for the offense of conspirac y is that “an overt act

in pursuance of such conspiracy [must be] alleged and proved to have been done by

the person or by a

nother with whom the person conspired.” Id . § 39-12-103(d).

The primordial feature of the crime of conspiracy is the accor d – the agreeme nt to accompl ish a crimina

l or unlaw ful act. See State v. Pike , 978 S.W.2d 904, 9 15 (Tenn . 1998); State v. Hodgkinson , 778 S.W.2d 54, 58 (Tenn. Crim. App. 1989). A formal agreement is not required,
nor must it be expressed; it may, and often will be, proven by cir cumstantial evidence. See Pike , 978 S.W.2d at 91 5; State v. S hropshire , 874 S.W.2d 634, 641 (Tenn. Crim. App. 199 3); S tate v. Gaylor , 862 S.W.2d 546, 553 (Tenn. Crim. App. 1992) (“a mutual[ly] impl ied under standing is sufficie nt, although not manifested by any forma

l words, or a written agreement” ). “The unlawful confederation

ma y be es ta bl is he d b y circumstant ial evidence and the conduct of the parties in the execution of the criminal enterprise. Conspiracy implies concert of design and not particip ation in every de tail of execution.” Randolph v. State , 570 S.W.2d 869, 871 (Tenn. Crim. App. 1978).

We think that a rational jury could e asily reac h the conclusion, as it did in this case, that the defendant

was acting pursuant to a tacit agr eement between himself and Reese. The proof , for instance , showed t

hat Reese and the de

fendant had lived

togethe r for ap proxima te ly a year. Reese and the defendant

were financially

insecure; stated otherwise, they “didn’t have two pennies to rub together.” Both of them drove a nd escorted

th e victim on

the shopping exped

ition. Ree se testi fied at trial that she and the defendant “acted a s a team” and that she and the def endant ha d discussed before

hand taking the victim’s money. While Reese maintained that she “really didn’t know” that the d

efenda nt was g oing to ki ll the vict im, she did

believe that the defenda

nt “migh t just knock him out orsomething.” Reese then later assisted the defendant in staging their discovery of the victim’s body. Finally , in the letters sent by the def endant to R eese, he spoke r epeatedly of “stic king” together and

of the pol

ice try ing to “s et” them up; he

also implor

ed Reese to marry him as soon as feasible.

The jury’s conclusion that the de fendant and Reese were co-c onspirators is emine nt ly reasonable and amply

supported by the evide

nce. II. Jury Selection By far, t he large s t flock of

issues tha

t the def endant pr esents f or revie w relate s to claimedirregularities in the jury selection process. His complaints relate to juror bias, lack of notice
as to which method of selection would be used for the alternates, communications between a court officer and a juror, re-opening voir dire of jurors, and disallowanc e of a peremptory challenge after voir dire was re-opened. Toplace these issues in context, we briefly recount what

happened during jury selection.-9- After questioning by the tria

l court and the parties, a regular, twe lve-member jury panel was selected. Therea fter, the trial cou rt tentat ively seated f our poten tial alte rnate jurors. One of the four was Carol Pierce. During earlier questioni ng, Ms. Pierce disclosed that her daughter had been a recent crime victim, but Ms. Pierc e gave

assurances that

she could decide t he defe ndant’s c ase on its merits. Ms. Pierce occupied al ternate posit ion two, bu

t after t he defe ndant per emptorily challenged

the alter nate jur or in positi o n one, Ms. Pierc e adv ance d to po sitio n one . On th e next round of chall enges, the de fendan t tri ed to c halle nge Ms. Pierce, but the trial court disallowed the chall enge based on Criminal Procedure Rule 24(e)(1). See T enn. R. Crim. P. 24(e)(1). Another alternate juror was seated, and the unsworn jur y retired f or a break. During the brea

k, anothe r juror, Mr. Parr

ish, appr oached a court o fficer and expre ssed reservations about decidingthe case based upon religious gr ounds. The court

officer reported the information to the tria

l court, whereupon Mr. Parrish was brought into the courtroom and questioned by the trial

court and the par

ties. Based on the questioning, the trial court excused Mr. Parrish for
cause and repl aced him

with Ms. Pierce, who had been seated as alter nate juror one. The defendant tried again t

o challe nge Ms. Pierce, this time for cause, but the trial court denied the challeng e based on Ms. Pier

ce’s ind ications t hat she c ould be fa

ir and impa

rtial.

In denying

the defendant’s motion for new trial, the trial court in this case issued comprehensive written findings regarding jury selection. Our r

eview has been s ubstantia lly facilitatedby t

hese fin dings. I

n its orde r, the tri al court

admitted t

hat it negle cted to advi se the part ies beforehand as to which method of alternate juror selection would be used but that by soliciting challenges to alternate juror one , the trial court clearly signaled that it was following the Rule 24(e)( 1) procedure. The trial c ourt fur ther expla

ined that it found no

basis to re

move Ms. Pierce for cause, given her assura nces. As for Mr. Parrish, the trial court believed that he would not be cap able sitti ng as a

juror be cause of

his religious belie

fs, and th e only way to inquire

about his reservations once he discussed them with the court office r was to re-open voir dire. A trial court's method of conducting jury voir dire in a criminal case must comport withconstitutional due process notions of fundamental fairness. See Mu'M in v. Virgi nia , 500 U.S. 415, 426, 111 S. Ct. 1899, 1905 (1991). Jurors “may sit on a case, eve n if they hav e formed an opinion on the merits of

the case, if they

are able to set

that opinion aside and render a verdict based upon the evidence presented in court.” State v. Mann , 959 S.W.2d 503, 531 (Tenn. 1997). In many instance s, the prospective juror’s acceptability will depend on the believa bility of the av owal as to im pa rt ia li ty. See Tenn. R. Crim. P. 24(b)(2). Indeed, in light of the tria l judge's opportunity

to hear and observe the prospective jurors, courts have def erred to the trialjudge to determine the ability of
a prospective juror

to impartially hear the c ase. Mu'Min , 500 U.S. at 427, 111 S.Ct. at 1906. Given this deference, a “trial cour t’s findings of juror impartial it y ma y b e overtu rned only for ‘man ifest error.’” State v. Cazes , 875 S.W.2d 253, 262 (Tenn . 1994 ) (quo ting Patton v. Yount , 467 U.S. 1025, 1031, 104 S. Ct. 2885, 2889 (1984)). There is no such error in this record.

The defenda

nt couche s one of hi s griev ances in terms of t

he trial c ourt’s fa

ilure to question the jurors about any involveme nt in crimes similar

to those charged in the defendant’s c ase.-10-

Inasmuch as counse l for the p arties w ere per

mitted to vo ir dire potential ju rors and to question about potential bias, we

are at a loss to app

reciate how error infected the procee ding. As for Jurors Pierce and Parrish, the defendant offers little more than boilerplate objections, and he has not shown how or why the trial c ourt abused its discretion.

Furthermore, we perce ive no er ror or abuse of discretion related to Mr. Parrish’s communications with a court officer or related to the additional questioning and r emo val of that juror. There isno proof t hat the c ourt of

ficer engaged the juror in conversation or solicited the juror’s opinion about the case. Rather, the juror ap proached the c ourt officer. Then once the information was brought to the trial court’s attention, it was entirely appropriate for the trial court to inquire further of thejuror. At that point, the decision to seat an alternate juror, when a re gular juror must be re moved, is left to the trial judge’s discretion. Tenn. R. Crim. App. 24(e)(1). One challenging the trial

court’s decision

to do so, as the defendant does in this case, has the burden of demonstrating prejudice by the seating of the alternate juror. State v. Millbrooks , 819 S.W.2d 441, 445 (Ten n. Crim. Ap

p. 1991); State v. Max , 714 S.W.2d 289, 294 (Tenn. Crim. App. 1986).

We are confident that

had the juro r in this case, for example, related to the court officer something unfavorable about the defendant, the defendant would be insisting that the court officer had a duty to promptly

report it to the trial court, that the trial court should have immediately investigated, and that the j uror should have been removed. The trial court, we conclude, acted appropr iate ly when con

fronted with the situation in t

his case , and the d

efenda nt has shown us n o prejudice from the removal of Juror Parrish or the seating of Juror Pierce.

The defendant’s inability to demonstra te prejudice also disposes of his grievance tha t he was misled by the trial

court’s failure to notify

him which method of selecting alternate jurors was being used and

of his invo cation of

cumulativ e error . The tria l c ourt candidly admitted that the method of alternate juror selection was not specified be forehand; we agree , however, with the trial court th at th e way tha

t jury selection proceeded, the defendant reasonably was on notice of the method. We note that the defendant on appeal does not specifically c laim that he was misled; rather, his argume

nt is more in the natu

re of as serting

entitl em ent to additional peremptory c hallenges merely bec ause the trial court failed to announce the method. We reject that assertion.

No relief premised on how jury selection was conducted in thi s case is re quired or warranted.
III. Evidence of DNA Test Results

The defenda

nt insists th at the tri al court committed

revers ible err

or in deny

ing his motion to strike t

he resul ts of DNA t

esting p erformed on blood s tains found on a pa ir of wor k boots seized from the defendant. There was no proof, a ccording to the defendant, establishing which of several blood stains on the boots was tested or the size and shape of the tested stain. As a result, the defendant argues that the jury was left to speculate about which stain was tested such that the jury was unfa irly left with t

he impre ssion that a

ll of the bl ood on the

boots cam

e from the

victim.-11- The defenda

nt couche s this issue

solely in terms of evidence relevancy pursuant to Evidence Rule 403. That rule provides, “Althou gh relevant , evidenc e may be excluded if its probative value is substantially outweighed by the dang er of unfair prejudice, confusion of the is sues, or misleading the jury , or by considera tions of undue delay, wa ste of time, or needless presentation of cumulativ e evidence.” Te nn. R. Evid. 403. The d

efenda nt focuse s on th e “unfai r prejudice” component

of the rule, which he states includes those situations where a jury could misu se otherwis e admissible

proof. The def endan t does not ch allen ge the accuracy or reliability of the re sults of the DNA testing performed and does not question the qualifications of the expert witness who testified about the DNA test r

esults.

Our revie w of this issue takes us into a familiar corner of the law. A trial court’s decision to admit or

exclude e vidence based on its evidentiary r

elevance will not

be disturbed absent an abuse of discretion. State v. Gilliland , 22 S.W.3d 266, 270 (Ten n. 2000); State v. D ubose , 953 S.W.2d 649, 652 ( Tenn. 199 7). The tr ial cour t’s reas on under

lying its exer

ciseof discr

etion in this
case was that t

he defe ndant’s m

otion to str

ike went t

o the weig

ht, not the admissibility, of the evidence. The trial court explained,

Clearly the lack of State proof identify ing which of the bloodstained areas on the boot was positive for that of the decea sed’s blood went to the weight of testimony of the T.B.I. expert and he r credibi lit y. This issue was fully explored by d efense counsel in front of the jury and the jury had an

opportuni

ty to weigh that testimony and a scribe
an appropriate weight

to be given to this expert testimony. The Court finds this i ssue is wit

hout merit

. We agree with the trial court’s assessment that we ight, not ad mi ssibility, was the issue. The trial court properly admitted the evidence and corr ectly refused to later strike it. The jury then wen t about its a

ppointed t ask of we ighing the evide nce and giving the test results whatever weight the jury believed a

ppropriate in light of the defendant’s countervailing arguments. Nothing in the record suggests that the trial cour t abused its discretion on this issue. IV. Suppression of Exculpatory Evidence

The defendant accuses the state of fa iling to advise him that Steve Rigga n was a jailhouse informant who had given inculpatory information to the police involving another pretrial detainee. The pretrial detainee, Dondie Ti d well, had shared for a time a cell with Rigg an and the defenda nt. Cellmate Tidwell was charged with murder, a nd his case was tried

approximately seven months after th

e defendant was convicte d. Rigg an testif ied aga inst Tidwe

ll as a state witness. The defendant’s attorney cla

imed that he learned of

the connection between

Riggan a nd Tid well t hrough newspaper

coverage of the Tidwell trial, and the putative Brady violatio n w as raised in the defendant’s motion for new trial.-12- The trial court issued a written o rde r overruling the defendant’s new trial motion. The orde r, in per tinent pa rt, rec ites,

Mr. Riggan was incarcerated at a time in a ce ll with Mr. Dykas and obtained admissions from Mr. Dykas that he te stified to du ring the trial

. Riggan was also a cell mate of D ondie Tidwell and testified agains thim in a l a ter tria l in which T

idwell wa s charg ed with fi rst degree murder. Apparently a

t some point in time Riggan identified himself to police authorities and initially testified ag ainst Mr. Dy kas. Riggan then disclosed informat

ion aga inst Mr. Tidwell and after the Dykas trial testified

in that subsequent trial of State v. Ti dwell

. Mr. Dy kas, in this assi gnment o f error , assert s that the S tate fai led to disclose that Rigg an was te stify

ing in the latter c aseand that

this was exculpatory

e vidence which the

y f ailed to p rovide to the defe ndant.

. . . The defendant

has citedno authority that would lend itself to the conclusion that

the fact that Mr. Riggan was anticipa ted to testify

in the future a

gainst M r. Tidw ell meets the definition of exculpatory evidence required to be furnished by the State in Brady

v. Maryland

. Therefore, this assignment of error is overruled.

We begin by

briefly re viewing the controlling constitutional principles. I n Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194 (1963), the United States Supreme Court held that the prosecution has a constitutional duty to furnish the accuse d with excul

patory evidenc e perta

ining to either the accused’s guilt or innocence a nd the punishmentthat may be imposed. Failure to reveal exculpatory

evidenc e violate s due proc ess when the evide

nce is ma

terial e ith er to guilt or punishmen

t, irrespe ctive of

good fa ith or bad faith of the prosecution. Id . at

87, 83 S. Ct. at 1196-97.

Decisions subsequent to Brady have establish ed that to prove a d ue proce ss violation, the defenda nt must show that the information was requested (unless the evidence is obvious l y exculpato ry , in which

case the state is bound to release the information whether requested or not), that the state suppressed the informat ion, that th

e informa tion was f avorabl e to the accused, and that the information was material. See State v. Edgin , 902 S.W.2d 387, 389-90 (T enn. 1995). Th e suppressedinformat

io n is co nsidered “material” if there is a “re asonable probability that, ha d the evid ence bee n disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley , 473 U.S. 6 67, 682, 10 5 S. Ct. 3375 (1985). A “reasonable probability ,” the Supreme Court has e

xplained, i s a proba

bility suff icient to “ unde rmine [ ] confide

nce in the outcome of the trial.” Id ., 473 U.S. at 678, 105 S. Ct. at 3381.

In reviewing the trial court’s ruling, it appears to us that the trial court misunderstood the defendant’s complain t. In a ddition, f rom the tr ial cour t’s state ment that t

he infor mation did

not meet “the definitio n of exculp atory evidenc e,” we c annot tell whether the trial court was referring to the requ

irement t hat the in

formatio n be “fa

vorable ” or th e require ment that t he favor able-13-

information be “material.” Our independent review , however, convinces us that no due pr ocess violation occurred.

It may be that a n extension

of the defendant ’s compla int is that the st

ate should have disclosed that Rigg an would b e testify ing in a f

uture ca se. The d

efenda nt, however, mor e specific ally

defined the issue

in terms of

the state withholdin g infor

mation th at, prio r to the defendant’s trial, Riggan had given a vide otaped statement to the same detectives involved in the defenda nt’s cas e regarding inculpatory remarks made by anothe r cellmate. Knowing that Rigga n was in for ming on other cellmates would have, the defenda nt argues, served to impeach Rigg an’s credibi lity

by contrad icti ng Rigg an’s claimed m otivation f

or testif yin g that “ it’s the r

ight thin g to do.” Impeachment evidence is treated no differently than other eviden ce in terms of exculpatory

significance. “I

mpeachment evidence, . . . as well as e xculpator y evidence , falls within the Brady rule.” Bagley , 473 U.S. a t 675, 105 S. Ct. at 3380. Impeachment evidence is “‘evidence favora ble to an accused,’ . . . so that, if disclosed and used effectively , it may make the diffe rence betwe en conviction and acquittal.” Id., 105 S. Ct. at 3380. In this case, we cannot say that th e inf ormation about Riggan is devoid of impeachment value; consequently, it qualifies as evide nc e “favorable” to the def

endant. The next ste

p is to determin

e if this f avorabl e eviden

ce is “material,” such that its suppre ssion viola

ted due pr

ocess.

The “materiality” of

suppressed, favora

ble evide nce wasdiscusse d at leng

th in Kyles v. Whitley , 514 U.S. 419, 115 S. Ct. 1555 (1995). Four aspects ar e highlig hted ther ein. Fir st, establishing materia

lity “does not require demonstration by a preponderance that disclosure of the suppressedevidence would have resulted ultimately in the defendant’s acquittal.” Id . at 434, 115 S. Ct. at 1566. Second, materiality “is not a suf ficiency of evidence test.” Id ., 115 S. Ct. at 1566. Third , “onc e a revi ewing c ourt a pplying Bagley has found constitutional error there is no need for further harmless-error review .” Id . at 435, 1 15 S. Ct. at 1566. L ast, the “ suppress ed evide nce [is to be] consideredcollectively, not item by item” to ga

uge materiality

. Id . at 436, 115 S. Ct. at 1567. Plainly s tated, e stablishin g mater iality requires a “showing that the favora ble evidence cou l d reasona bly be taken to put the whole case in such a different light as to under mine confidence in the verdict.” Id . at 435, 115 S. Ct. at 1566.

In this case, our

confide nce in the jury ’s verdi ct is not undermined by evidenc e that the defenda

nt was not t

he only cellmate about whom Riggan had “snitched.” There was no evidence at trial that Riggan was paid for the information that he supplied or that he benefitted in some other way. Moreover, no proof sugge sted that the detectives intentionally “ planted” Riggan in the

same cell as the defendant to obtain evidence. The state ’s theory of the case was that the defendant and Reese were c o-conspi

rators, jointly

involved in the beating death and robbery of the victim. Re ese had pleaded guilty

to the charged crimes for which she received a life sentence. The jurors very likely and rea sonably

gave s u bstanti al weight to Reese’s testimony which placed the defendant at the murder

scene and which identified the defendant as the person who had wielded the le thal claw hammer. Faced with Reese’s powerf ul testimon

y, t he defe ndant cr afted a theory of defe nse (without testifying or prese nting oth er evide nce) tha t it was Ree se who str

uck and k illed the v ictim. We f

ail to see how the battle lines thus drawn would have chang ed had the defense bee n able to impeach Riggan’s motive for

testify in g, nor does the d

efenda nt enlighten us how

exposing R

igga n as a-14-

jailhouse snitch wou

ld have “ put the wh ole case

in such a d

iffere nt light”as to ratt

le our confidence in the outcome of the trial.

Ac co rd in gl y, the defendant has not satisfied his burden of dem o nstrating the materia lity of the inf ormation t

hat was w ithheld, a

nd we hold

that no due

processviolation has been established.

V. Sentenc ing

The defendant’s final complaint is that the trial court improperly ordered consecutive sente ncing. On the defendant’s especially a ggravated robber

y conviction, the trial cour t imposed a 25-year sentence at 100 percent. That sentence was orde red to run concurrently

to the eleven-y ear sentence at 30 percent for

the conspiracy

conviction. Both sentences were then order ed to be served consecu tively to defendant’s first-degre e murd er sentence of life without parole. The def endant contends that the evidence is insufficient to show that he is a professional criminal with no visi

ble means of support other than his criminal conduct . The defend ant also claims that consecutive sentencing is unnecessary to protect the public because he

already has been sentenced to life without the possibility of parole.

When there is a

challen ge to the

length, range , or manne

r of se rvice of a j udicially imposed senten ce, it is the duty of this court to conduct a de novo review o f the re cord wit h a presumption that the determinations made by the trial court are cor

rect. T enn. Code Ann. § 40-35-401(d) (1997). This presumption is "conditioned upon the affirma tive showing in

the record that th e trial co urt considered the sentencing principles and a ll relevant facts and circumstances." State v. Ashby , 823 S.W.2d 1 66, 169 (T enn. 1991 ); s ee State v. H ooper, 29 S.W.3d 1, 5 (Tenn. 2000). "The burden of showing that the sentenc e is improper is upon the ap pel lant." Ashby , 823 S.W.2d at 16 9. In the event the rec ord fails to demonstrate the required consideration by the trial court, r eview of the sente nce is pu re ly de novo

. Id. If a ppellate review, however, reflects that the trial court properly

considered all relevant factors and its finding s of fact are adequately

supported by the r ecord, this court must affirm the sentence, "e ven if we would have preferre d a diff eren t result." State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

Before consecutive s entencing can be ordered, the trial court must first determine that one or more of the statutorily e numerated criteria of Code section 40-35-115 exist and find that the aggr egate sentenc e is rea sonably

related to the severity of the

offenses and necessary

to protect

the publ ic from f

urthe r crim inal a ctivi ty of the o ffende r, if t he defe ndant is fou nd to be a dan ge rou s offender. State v. Wilkerson , 905 S.W.2d 933, 937 (Tenn. 1995). See also State v. Lane , 3 S.W.3d 456 (Tenn. 199 9) (hold ing Wilkersonfactors are limited to sentencing of " dangerous offenders" ). Notwithstanding proof of these criteri a, a se ntencing court retains the discretion of imposing consecutive sentenc es. On ap peal, the decision that flows from the trial court's discretion is assigned great weight , provide d the cour t corre ctly

applied t

he princ iples of c onsecuti ve sente ncing. Moreover, in determining whether the trial court providently exercise d its discretion, the fairness of the resulting sentence under all the circ umstances must be ensured.

There are s ev en statutory criter ia in Code section 40-35-115 for imposition of consecutive sentencing. They are:-15- (1) The def

endant isa profe ssional criminal who has know ingly devotedsuch def

endant’ s life to c

rimin al a cts as a major source of livelihood;
(2) The defendant

is an offender

whose record of c

riminal a ctivity is extensive;
(3) The defend ant is a dang erous me ntally abnorma l person s o declared by

a competent psyc

hiatrist . . . ;
(4) The defendant is a dangerous of fender whose behavior indicates littleor no regard for human life, and no he sitation aboutcommitting a crime in which the risk to human life is high;
(5) The defendant

is convicted of two (2) or more statutory offenses involving sexual abuse of a minor . . . ;
(6) The defendant is sentenced for an offense committed while on probation; or
(7) The d efenda nt is sente nced for criminal contempt

. Tenn. Code Ann. § 40-35-115(b)(1)-(7) (1997).

Here, the trial court found that the defendant qualified for consecutive sentencing on grounds (1) and (4). As f or the defendant being a profe ssional criminal who relied on criminal activity as a major source of livelihood, the trial court observed that ther e was no evidence that the defendant had “any ability to sustain [himself] except through that of criminal activity,” or that the defendant had any “ visible mea ns of suppor t except that of his actions in taking advantage of the dec edent.” The defendant directs us to the employ ment information section of his presenten c e report and points out that Reese was supporting the defe ndant and herself by w orking a

t Hardee ’s.
According to the presentence repo rt, the d efendant was 53 years old at the time of sente ncing. The defendant served in the United States Navy in the mid 1960s, but he was court martialedand received

a bad conduct

discharge for being a

way without officia

l leave (“AWOL”) f

or one year or

more. The defendant

told the pr

esentence inves tigator

that he ha

d at some unspecified tim e and place worke d “for a carnival.” The defe ndant also claimed to have worked for a y ear at G.B. Boot Smith in Mississippi, to have hauled scrap iron, and to have been employed by

Wendy’s for a s ho rt ti me . T he pr es en te nc e i nv es ti ga to r w as un ab le to co nf ir m a ny o f thi s employment information and was u

nable even to locate the area in Mississippi where the defe ndant said he had worked. “It w ould appe ar,” the present ence inv estiga

tor wrote , “that the defendant is a tr ansient-16-

moving from place to place and is never employ ed for any period of time.” The trial cou rt obvious ly agreed with that assessment, and we conc ur.

The record of the defendant ’s crimin al activi ty issomewha

t sketchy , but evide

ntly he has one or more Illinois convictions. Moreover , at the time of sentencing arson charg es had been filed and wer

e pending agains t him in Ruthe

rford Cou nty . We note th at t

he defe ndant li sted no finan cia l assets or

outstandi ng debt s, other t han cour t costs fr om this pros ecution. By all indicatio ns, his livelihood was tied intimately to his criminal endeavors, but we “nee d not spend

time and lineage” further analy zing this factor. See Sta te v. Bernard K. Johnson , No. E2000-00009-CCA-R3-CD, slip op. at 16 (Tenn. Crim. App., Knoxville, Jan. 31, 2001). "Only one factor need be proven to support a consecutive sentenc e." Stat e v. Erne st Leon Powe rs, Jr. , No. 03C01-9606-CC-00222, slip op. at 18 (Tenn.Crim.App., Knoxville, Oct. 28, 1997). In this case, the record fully supports the application of factor (4) that

the defe ndant is a “dang erous of

fender whose behavior indicate s little

or no regard

for huma n life, a nd no hesit

ation about committing a crime in which the risk to human life is high.”

T h e trial cou

rt made th

e requir ed speci fic findings that

an extended sentenc e is neces sar y to protect society

and is re asonably

related to the sev erity

of the of fenses r elative t o consecutive sentencing under the “dangerous offe nder” category

in Code section 40-35-115(b)(4). State v. Wi lkerson , 905 S.W.2d 933, 939 (Tenn. 1995). The only finding that the defendant challenges on appeal is whether c onsecutive sentencing is necessary to protect the public.

The defendant posits that consecutivesentenc ing is superfluous inasmuch as his life withoutthe possibility of parole sentence guarant ees that he wil l never b e relea sed from confine ment. Th is ar gu me nt ha s b ee n e xp re ss ly, as well as implicitly, rejected. State v. H owell , 34 S.W.3d 484 (Tenn. Crim. App.) (consecutive sentencing of life without the possibility of parole for first-degree m urders and 25 y

ears fo r attempt ed murde r affir med for f ive of the six defend ants) , perm. app
. denied (Tenn. 2 000); State v. Blocker , No. 03C01-9803-CR-00120 (Tenn. Crim. App., Knoxville, Mar. 10, 1999) (approving consecutive sentencing for f elony murder a

nd aggravated robbe

ry convicti ons; n oting cases wherein supreme court had denied permission to appea l when an additional sentenc e order

ed to be served consecutively to sentence of life without parole), perm. app. denied (Tenn. 1999); State v. Ch rista Gail Pike , No. 03C01-9611-CR-00408 (Tenn. Crim. App., Knoxville, Nov. 26, 1997) (no a

bu se of disc

retion fo r death s entence

and 25-y ear sen tence f or conspi racy to commit first-degree murder to be served consecutively ) , aff’d , 978 S.W.2d 904 (Tenn. 1998).

Ac co rd in gl y, our review persuades us that the trial court consider ed and applied the appropr iatesentencing principles and did not abuse its discretion in ordering consecutive sentencing in this case. The trial court’s sentencing of the de fendant is, therefore, affirmed.

In conclusion, we affirm the ju dgements of guilt in this case and the trial court’s sente ncing.

__________________________________________ JAMES CURWOOD WITT, JR., JUDGE-17-