# FILED
November 23, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON SEPTEMBER 1998 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9708-CC-00327 Appellee, ) ) HARDIN COUNTY VS. ) ) HON. C. CREED McGINLE Y, ) JUDGE LLOYD E. FERRELL and ) DEBRA L. FERRELL, ) ) Appellants. ) (Felony Murder)

FOR THE APPELLANT LLOYD E. FERRELL : VERN CHUMNEY(A

t Trial) RFD 1, Box #374 Holladay, TN 38341 GUY T. WILKINSON (

On Appeal) District Public Defender VICKI S. SNYDER (O n Appeal) Assistant District P ublic Defender 117 North Forrest Avenu e Camden, TN 38320 FOR THE APPELLANT DEBRA L. FERRELL : JAMES BROCK

MAN (A t Trial) P. O. Box 25 Parsons, TN 38363 ROBERT C. BROOKS ( On Appeal) 707 Adams Avenue Memphis, TN 38105

OPINION FILED: ______________

AFFIRMED

JOE G. RILEY, JUDGE FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter MARVIN E. CLEMENTS, JR. Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 G. ROBERT RADFORD District Attorney General JOHN W. OVERTON Assistant

District Attorney General P. O. Box 484 Savannah, TN 38372 - 04841 Jason Kimberland was tried separately. His felony murder conviction and sentence of life imprisonment w

ere recently

affi rme d by this Court. State v. Jason W. Kimberland , C.C.A. No. 02C01-9711-CC -0 0447, Hardin County (Tenn. Crim. App. filed July 10, 1998, at Jackson). 2 O P I N I O N
The defendants, Lloyd E. Ferrel l and Debra L. Ferrell, were convicted by a Hardin Coun ty jury of

the offens

e of felony murde r. Both were sentenced

to life imprisonment. They present the following common issues in this appe al: 1. whether

the evidence was sufficient to support the guilty verdict; 2. whe ther

the trial court erred i n admitting taped conversations

between Debra Ferrell and a third party; 3. whether

the trial court erred i n refusing to grant a severance of the defendants; 4. whether

the trial court erred in disallowing into evidence certain taped conversati ons by each defendant; 5. whether

the prosecuting attorney engaged in improper closing argument; and 6. whether the trial cour t erred in dismissing

a juror during trial.
In addition, Deb ra Ferre ll presents two other issues for our review; namely, (1) whether trial counsel was ineffective for failing to pursue a motion to suppress the taped conversations, and (2) whether the trial court erred i n denying a new trial on the basis of newly discov ered evidence. After a care ful review of the recor

d a n d applicable law, we conclude the judgments should be AFFI RMED a s to both defendants.

FACTS

The defendants were married. Prior toMarch 27, 1996, co-defendant Jason Kimberland 1 and his girlfriend, Stacy e Shands, went to the Ferr ells’ residence. Lloyd Ferrell asked Kimberland if he wanted tomake some easy money by r obbing
an elderly coupl e . Lloyd suggested the amount in the residence of the elderly3

couple was between $40,000 and $150,000. Although Shands and Debra Ferrell
were conversing in another room at the time, Shands overheard some portion of the conversation. While driving home, Shands asked Kimber land about the conversation. Upon being informedabout the nature of the conversation, Sh ands discouraged Kimberland from any participation. Subseque ntly, Kimberland decided to participate in the scheme. He met w ith Lloyd Ferrell and was

advised t hat the e lderly cou ple was rela ted to Llo yd. Lloyd drove Kimberland by the elderly couple’s residence and advised where he would let Kimberland ou t of th e vehicle and where he would pick him up. Lloy d advised Kimberland that he should kick in the back door, tape up the couple and make them tell where the m oney w as located. Lloyd agreed to prov ide an unregistered .380 pistol for Kimberland’s use. They decided the robbery woul d take place early the next morning. The next morning, March 27, 1996, Lloyd called Kimberland at approximately 4:3 0 a.m. advising that he was on his way to get him. Shortly thereafter, Kimberland called back to advise Lloyd that he had found his ski mask and would not need one to be prov ided b y Lloyd. Debra Fer rell answered the phone and stated, “He’s already gone and is bringing a ski mask and gun.” Lloyd then arrived in his green Buick LeSabre and pic ked up Kimberland. Two residents of theFerrell’s apartment complex recognize

d Kimberland talking to a man in a dark-colored Buic k in the parking lot. Kimberland left with Lloyd, and Lloyd gave him the gun. They stopped at a store to buy cigarettes , and Kimberland spoke briefly to a friend. The friend identified Lloyd as thedriver of the vehicle, a Buick automobi le, in which Kimberla nd was riding. Lloyd then drove near the eld e rly couple’s resi dence where Kimberland exited the car. Kimberlandwentto the residence. Armed w ith the gun he had loaded with ammunition suppli ed by Lloyd, Kimberland p ushed open the couple’s door and entered the residence of Hobert and Mary Ferrell. Mary Ferrell had earlier
seen Kimberland outside the residence and supplied her husband wi th a shotgun.4

Upon being confron ted by Ho bert Ferrell holding a shotgun, Kimberland began running and shooting back toward Hobert Ferrell. Hobert Ferrell was killed by this gunfire. Kimberland fled and was ultimately capt ured some distance from the residence. He was still w earing the ski mask. A s ubsequent sea r ch of the area yielded the .380 pistol. Kimberland l ater confessed to his role in th e attempte d aggravatedrobbery and homicide and implicated Lloyd Fer rell. At trialKimberland testified for the state. Shortlyafter the murder, the vic tim’s p ersonal attorney came to the residence. His widow

turned over to him for safe keepi ng over $61,000 in cash that was in the residence. At approximately 8:30 a.m. on the morning of the murder, Debra Ferrel l called Stacye Shands and advised her that s omething was wrong

and, “They’ve got Jason, or they’v

e got somebod

y.” Debr a advised h er that if any investigators came to speak with her, she should tell them she knew nothing. Shortly thereafter, an investigator

spoke with Shands. Shands agreed to tape r ecord any calls made

to her by the Ferrells. Shands recorded subsequent calls made by Debra Ferrell on thatsame date. Debra insisted n umerous times that Shands te ll the authoritie s she knew nothing; otherwise, “Everybody can be charged...if you say you know anything.” In one of the conversations Shands and Debra Ferrell discussed whether the elderly couple had a phone. Debra stated:

No, no, no. That’s all wrong . Lloyd told hi m right th e o pposi te. He told ‘em they did hav e one, and they do have a phone ‘cause we looked it u p in the book to make sure. I kne w they had a phone, and w e knew they had a pistol... The defense presented four witnesses. The first w as J. W. Kimberland, the father of Jason Kimberland. He testified he had been with his son the day before the shooting, and his son d i d not appear to be under the influence o f any kind of intoxicant.5 Brenda Smith then testified that she provided information to authorities about
a .380 pistol her

husband had once owned; however, she did not contend that this pistol was the gun us ed in the shoot ing. Ron Harmon, counsel for Jason Kimberland, testified. He stated Kimberl and did not receive or ask

for any special consider ation for testifying at the trial. Dr. L. D. Hutt, a clinical psychologist, testi

fied concerning his eval uation of Debra Ferrell. Dr. Hutt testifie d Debra Ferrell had an “histrionic personality.” A person with this ty

pe personality woul d tend to exaggerate. Neither defendant testified. The jury convict ed each d efenda nt of fe lony m ur der based upon their criminal responsibili

ty for the felony murder committed by Jason Kimberland.

SUFFICIENCY OF THE EVIDENCE

Both defendants con te nd the evidence is insufficient to support the finding of guilt. In determining the sufficiency of the evidence, this Court does no t reweigh
or reevaluatethe evidence. State v. Cabbage , 571 S.W.2d 832, 83 5 (Tenn. 1978). A jury verdict appr

oved by the trial j udge accred its the sta te's witnesses and resolves all conflicts in favor of the state. State v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state is entitl ed to the

strong est leg itimate

view of t he eviden ce and all legitimate or reasonable inferences which may be draw n therefrom. Id. This Court will not disturb
a verdict of guilt due t o the suff iciency of the evidence unless the defendant demonstrates that the facts contained in the recor d and the inferences which may be drawn therefrom are insufficient, as a matter of law, for a rational trier of fact to find the accused guilty be yond a reasonable doubt. State v. Brewer , 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Accordingly , it is the appellate court 's duty to affirm the conviction if the evidence, view ed under these standards, wa s sufficient for any rational trier o

f fact to h ave foun d the ess ential e lements

of the offe nse b eyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia , 443 U.S. 307, 317,6

99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994). Although the evidence of guilt is circumstantial in nat u re, circumstantial evid ence alone may be sufficient to support a conviction. State v. Tha rpe , 72 6 S.W.2d 896, 899-900 (Tenn. 1987); State v. Gregory , 862 S.W.2d 574, 577 (Tenn. Crim. App. 1993); State v. Buttrey , 756 S.W.2d 718, 72 1 (Tenn. Crim. App. 1988). However, in order for this to occur, the circumstantial evidence must be not only consi s tent with the guilt of the ac cused but it must also be incon sistent with innocence and must exclude every other reason a ble theory or hypothes is except that of guilt. Tharpe , 726 S.W.2d at 900. In addition, “it must establ ish such a certainty of guilt of

the accused as to convinc e the mind beyond a reasonable doubt that [the defendant] is theone who committed the crime.” Tharpe , 726 S.W.2d at 900 (quoting Pruitt v. State , 460 S.W.2d 385, 39 1 (Tenn. Crim. App. 1970). Kimberl and was unquestionably an accomplice in this cr iminal endeavor , an d the ju ry was so instr

ucted. In Tennessee, a conviction may not be based solel y upon the uncorroborated testimony of an accomplice. State v. Maddox , 957 S.W.2d 547, 554 (Tenn Cr

im. App. 1997). The issue of whether an accomplice’s testimony has been sufficiently corrobor ated becomes a matter entrusted to the jury, a s the trier of fact. Bigbee , 885 S.W.2d at 803.

A. Criminal R

esponsibility f

or Felony Mur

der

The state contends each defendant is criminally responsible for the conduct of Kimberland who murdered the victim in perpetra

tion of the attempted aggravat ed robbery. The state must prove beyond a reasonable doubt that a defendant acted with intent to promote or assist the commission of theoffense, or to benefit in the proceeds or results of the offense; and the defendant solicited, directed, ai ded, or attempted to aid another person to commit the offense. Tenn. Code Ann. § 39-11- 402(2). The state must also prov e beyond a reasonable doubt that K imberland7

unlawfullykilled the victim i n the attempt to perpetrate the robbery . Tenn. Code Ann. § 39-13-202(a)(2). It was clearly est

ablished that Kimberland committe d th e offe nse of felony murder by unlawfully taking

the life of the victim in the perpetration of the attempted robbery. Thus, the cruci al issue is whether the evidence is sufficient to show that each defendant met the criteria for cri minal responsibility for the felony murder committed by Kimberland. If so, each defendant is crimin ally r esponsible for the felony murder asthe natural and probable consequence of the intended agg ravated robbery. State v. Carson , 950 S.W.2d 951, 956 (Tenn. 1997).

B. Lloyd Ferre ll - Sufficency of the Evidence
Looking at the evidence in a lig ht most favorab le to t he state, Lloyd Ferrell solicited Kimberland t

o commi t the robbery. On the morning of the attempted robbery, he furnished a gun to Kimberland.Lloyd drove the v ehicle and let Kimberland out near the residence of the elder ly couple. Kimberland w as seen by witnesses getting

into Lloyd’s car. Lloyd was per sonally identified as the dr iver of the car. Furthermore, the testimony of Kimberland w as sufficiently corrobora ted. Lloyd was identi fied by an indepen dent witne ss as bein g the drive r of the ca r just prior to the homicide. Independent witnes ses saw Kimberland in that car just prior to the homicide. Lloyd’s automobile was also identified by independent witnesses. The testimony of Kimberland was sufficiently corroborated. In a ligh t mos t favorable to the state, a ra tional trier of fact could find that Lloyd Ferrell acted with the intent to promote and assist in the co mmissio n of t he offense; intended to benefit in the proceeds of the robbery; and both solicited and aided Kimberland in the commission of the offense. See

Tenn. Code Ann. § 39-11- 402(2). Thus, the evidence is suffici ent to support the verdict of guilt asto Lloyd Ferrell.8 C. Debra Ferrell - Suf ficiency of the Evidence

The issue ofDebra Ferrell’s criminal responsibility for felony murder is much
more difficu lt. Howe ver , in a light most favorabl e to the state, we conclude the evide nce is also sufficient to establi sh that Debra Ferrell ac ted with the intent t

o promote or as s ist in the commission of the offense and that she aided in its commission. In a light most favorable t o the state , the following involvement of Debra Ferrell was establ ished by the evidence: (1) Prior

to the mur der , she was aware of the crimina l schem e and had l ooked in a phone book to see if t h e elderlycouple had a phone. She knew he r husband was also aware of this

information. (2) During the early morning hours of March 27, 1996, she was aware that Jason Kimberl and, with assistance from Lloyd Ferrell, intende d to commit an aggravated robbery at the residence of Hobert and Ma ry Ferrell. (3) She knew her husban d arose early on the morning of the murder and left their residence with a gun and ski maskto be used in the intended aggrav ated robbery. (4) Upon being called by Kimberland on the morning of and just prior to themurder, she advised him that Lloy d was on hi s way to get Ki mberlan d and tha t Lloyd wa s bringing a ski mask and gun. (5) Her conversations w ith Stacye Shands after

the robbery ind icate Debra Ferrell urged Shands not to reveal information to the authorities. Debra Ferrell contends the evidence proves only her knowle dge of the intended robbery prior to its failed attempt. Mere knowl edge that another intends to commit a crime would not es tablish her criminal l iability. See 22 C.J.S. Criminal Law § 139 (1989). Furthermore, th e mere fact that one, after the actual commi ssion of the principal crime by the perpetrator, urges another not to cooperate does not establish criminal liability for the same offense as committed by the princi pal offender. However, the evidence reveals that Debra Ferrell not only had knowledge of the intended aggravated r obbery, but also committed ac ts to prom ot e its commission. More specifically,she determined by looking in a telephone book

that9

the intended vict ims had a telephone. Furthermor e, she provided information to Kimberland on the morning of the crime that her acco mplice-hu sband was on his way to get him and had a gun and ski mask. Thus, she acted w ith the intent to promote the aggravated robber y; it could reasonably

be inferred that she intended to share in the r

ob bery proceeds with her husband; and she aided the pri ncipal perpetrator

by providing him with material information. The elements of criminal responsibility

for felony murder

are, therefore, established. See Tenn. Code Ann. § 39-11-402(2). Certainl y, her actual invol vement w as much less than her co-defendants. Yet, it was for the

jury to determine whether these a cts were sufficient to jus tify her criminal responsibility for felony murder. The jury had sufficient evidence before it to justify the guilty

finding. This issue is without merit.

TAPED CONVERSATIONS OF DEBRA FERRELL

Both defendants contend the trial court erred in admitting the taped conversations

between Debra Ferr ell and St acye Shands shortly after the homi cide. L loyd Ferrell contends the taped c onversations violat

e his right to confrontati on. Debra Ferrell contends there is no showing that S tacye Shands consented to the taping of the conversations. We fin d the arg um ents of both defendants to be without merit.
A. Lloyd Ferrell - Taped Conversations

The defendant , Ll oyd Ferrell, contends the admission of his wife’s t aped conversations

with Stacye Shands

was in viola tion of Bruton v. United States , 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The Court held in Bruton that the admission of a confession of a non-testifying co-defend ant implicating the defendant was inadmissible since the defendant was deprived of the r ight of2 This theory was not established at trial. 10 confrontation. 391 U.S. at 126. The taped conver sati ons of Debra Ferrell do not constitute a confession to a law enforcem ent officer; nevertheless, the admi ssion of statements by Debra Ferrell implicating Lloyd F errell might still

be in violationof the right of confrontation since Debra Ferrell did not t estify at trial. Fur

thermore, the statements raise potential hear say issues. Statements made by Debra Ferrell impl icat ing Lloyd Ferrell are not admissible unless the statements fall w ithin an exceptionto the hearsay rule and right of confrontation. Our review of the lengthy taped conversations reveals very few instances in which Lloyd Ferrell is

implicated. Howev

er, the tapes did contain the f ollowing statements of Debra Ferrell: Lloy d wanted me tocall; Lloyd is worried and tryi ng to getKimberla nd out of jail; Lloyd told Kimberland the elderly couple had a g un and phone; Lloyd did not know ther e were two other peopl e involved; 2 and Kimberland told Lloyd he intended to jus t get the money and leave. The state contends the statements of Debr a Ferrell qualify u n der th e coconspirator

except i on to the hearsay rule. See Tenn. R. Evid. 803(1.2)(E). Evidence within this hearsay exception is firmly

rooted and is not barred by the Confrontation Clause. Bourjaily v. Uni ted States , 483 U. S. 171, 183, 107 S.Ct. 2775, 2782, 97 L.Ed.2d 144 (1987); St ate v. Al ley , 968 S.W.2d 314, 317 (Tenn. Crim. App. 1997). Tenn. R. Evid. 803(1.2)(E) provides that “a statement by a co-c onspirator of
a party during

the cour se of and in f urtherance of the conspiracy ” is not excluded bythe hearsay rule. Thus, this Court must determine w hether the statements

made by Debra Ferrell implicating Lloyd Ferrell were made “during the course of and in furtherance of the conspiracy.” This issue is co ntrolled by State v. Walker , 91 0 S.W.2d 381 (Tenn . 1995). The Walker court held that a conspiracy termi nates with the consummation of the robbery; therefore, statements made after therobbery relating t o the circumstances of the robbery are inadmissi ble. 910 S.W.2d at 386. However, Walker recognized11

that a conspiracy might al so exist to concealthe circumstances of the origi nal crime, thus creating a later

conspiracy whic

h mightgive rise to the hear say exception. Id. ; see also N. Cohen, D. Paine & Sheppeard, Tennessee Law of Evidence , § 803(1.2) .6 (Supp. 1997). We furthe r note that under the sta tute a conspiracy termi nates when its “objectives” are completed, and the “objectives” in clude “measures, other than silence, for concealing the crime or obstructing justice in relation to it.” Tenn. Code Ann. § 39-12-103(e)(1)

. The only statements made by Debra Fer rell implicating Lloyd F errell that related to the circumstances of the cr ime were the followin g: (1) Lloyd told Kimberland the elderly couple had a gun and phone; (2) Lloyd did not know there
were two other people involved; and(3) Kimber land told Ll oyd just be

fore the cri me that he was only goin g t o get the property and leave. These statements were inadmissible. Nevertheless, in lig ht of the o verwhelmin g evidence against L loyd Ferrell, we conclude the limited reference s in the taped conversations to the circumstances

of the original crime constitutedharmless error. Tenn. R.App. P. 36(b).
B. Debra Ferrell - Taped Conversations

Debra Ferrell insists there is no evidence that Stacye Shands consented to the tape recording of the conversations. She insis ts the evidence is inadmissible under federal law without c onsent of one of the parties. See 18 U. S.C. § § 2511(2)(c), 2518(10)(a); State v. Crawford , 783 S.W .2d 5 73 (Tenn. Crim. App. 1989). Contrary to her ass ert ions, the record is abundantl y clear that Shands specifically agreed to tape record the conversa tions. See State v. Carey Dean , C.C.A. No. 02C01-9110-CC-00226 M adison County (Tenn. Cri m. App. filed May 27, 1992, at Jackson). This issue is without merit.12 MOTION FOR SEVERANCE

Both parties contend the trial court erred in denying their motions for
severan ce. The trial court did sev er the co-defendant, Jason Kimberla nd, for a separate trial. A motion to sever is discretionary w ith the trial court, and the court’s decisio n will not be rever sed unless it clearly

prejudiced a defendant. Sta te v
. Hutchison , 898 S.W.2d 161, 166 (Tenn. 1994).
A. Lloy d Ferrell - Severance
Lloyd Ferrell contends his t rial should have been sev ered from tha t of his wife’s since her taped convers ation s implicat ing him were introduc ed at trial, and she was not subject to cross-examination. Tenn. R. Crim. P. 14(c) sets forth th e criteria for seve rance of defendants. Where a co-defendant has made a pretrial statementimplicating the defend ant which is inadmissi ble against the defendant, the court must either (a) not admit the statement at a joint trial; (b) make appropr

iate redactionsto all references to the moving defendant; or (c) grant the sev erance as to the moving defendant. Tenn. R. C rim. P. 14(c)(1). Ha ving earlier conc

luded that those portions of the taped conversations impli ca ting the defendant in the circumstances

of the offense should not have been intro duce d, we must also conclude the trial court erred by not followi ng one of the three procedures in Tenn. R. Crim. P. 14(c)(1)

as set out above. Neve rtheless, as with the error in regard to the erroneous admission of certai n portionsof the ta ped conve rsations , we likewise find this error to be harmless. Tenn. R. App. P. 36(b).

B. Debra Ferrell - Sev erance

Debra Ferrell contends the trial court should have severed her trial from that of her husband’s. Since Lloy d Ferrell made no

pretrial statements impli cating her, Tenn. R. Crim. P. 14(c)(1) is inapplicable. Nev

ertheless, Tenn. R. Crim. P

. 14(c)(2)13

providesthat a severance shall be granted b efore or during trial, i f it is deemed appropriateto promote a fair determinati on of guilt or innocence. We are unable t o conclude that a severance was necessary for a fair determination of Debra Ferrell’s guilt or in nocence. T he trial court did not abuse its discretion in refusi ng to grant Debra Ferrel l a severance.

FAILURE TO ADMIT CERTA IN TAPED CONVERSATIONS
Lloyd Fe rrell conte nds the trial court err ed in refusing to admit a taped conversation that he had w ith Kimberland’s father. He contends this tape is exculpat ory. Debra Ferrell contend s the tri al court erred in refusing to admit into evidence certain taped conversati ons she had with Stacye Shands. She contends fairness dictates their admission since other taped convers ations were introduced by the state.
A. Lloyd Ferrell - Failure to A dmit Tape

The conversation sought to be introduced by

Llo yd Ferrell co nsisted of a taped conversation that he had with Kimberland’s father. In that con versation Lloyd Ferrell denied any cr

iminal involvement. This conversation was hearsay since it was being offered for the tr uth of the matter asserted ; to-wit, th at Lloyd Fe rrell did n ot commi t any crimi nal impro priety. See Tenn. R. Evid. 801(c). Such prior self-serving statement s are not admissible. State v. Turnmire , 762 S.W.2d 893, 897 (Tenn. Crim. App. 1988).

B. Debra Ferrell - Fail ure to Admit Tapes

Debra Ferrell contends the tr ial court erredin refusing to allow into evidence her taped conversat ions r ecorded on the day followi ng the murder. Since pri or recordings were introd uced, sh e conten ds these recordin gs should have bee n14

introduced pursuant to Tenn. R. Evid. 106. Tenn. R. Evid. 106 provides:

When a writing or recorded statementor part thereof is introduced by a party, an adverse party may require the int r oduction at that time of any other part or any other writing or rec orded statement which ought in fairness to be considered contempor aneously with it. In the taped conversations at i ssue, Debra Ferr ell spoke at length with Stacye Shands primarily about the need for Kimberland to retain counsel. Th ey were not as inculpatory as the pr ior conversations admit ted into evidence. At trial defense coun s el did not seek admission of these tapes pursuant to Tenn. R. Evid. 106. Defendant may not now take a different position o n appeal. See generally

, State v. Brewer

, 932 S.W.2d 1, 9 (Tenn. Crim. Ap p. 199 6). Further more, o ur review of the rambling tapes does not reveal that they “ought in fairness to be considered contemporaneously with” the other taped conversations. Our review of the questioned tapes does not reveal that their admission would have benefited Debra Ferrell. Even if the trial court erred in failing to admit these tapes, such error was harml ess at most. Tenn. R. App. P. 36(b ). This issue is without merit.

IMPROPER CLOSING ARGUMENT

Both defendants contend the prosecuting attorney made improper and inflammatory remarks in closing a rgumen t bystating the defendants were like a “cancer” that needed to be removed and sug gesti ng the de fendants intended to murder Stacye Shands. Debra Ferrell also contends the prosecuting attorney went outside the record when he argued Debra Ferrell was “the brains behind the

outfit.” No objection was voic

ed to any of these st atements during final argument

. Thi s issue is waived.Tenn. R. App. P. 36(a); State v. Gregory , 862 S. W.2d 574 , 578 (Tenn. Crim. App. 1993). Ev en if the issuewere not wai ved, we would not find reversible error resulting from these arg uments.3 The presence of the court reporter allows for the preservation of

the record but does not alleviate the problem relating to the right of the parties or counsel to be present. 15 DISMISSAL OF JUROR

Both defendants contend the trial court erred in the dismissal o f a juror during trial. We respectfully disagree. After the completion of the evidence but prior to the jury c

harge, the trial court had a conversation with a juror in chambers in the presence of the court reporter, but outside the presence of counsel. The juror informed the trial judge that he had realized tha t he had close friends who w ere also friends of the defendant’s son. The trial judge then brought in the attorneys, and the juror explained the relationship that made him feel un comfortable about continuing to serv e as a juror. Both counsel were given an oppor tunity to questionthe juror but declined. Upon the juror again indicating that this r elationship would inter fere with h is ability

to reach a decision, the trial judge discharged the juror and replaced him with an al ternate. Generall y, a trial judge should have no ex parte conversations with members of the jury. See Spe ncerv. A-1 Crain Service, Inc. , 880 S.W.2d 938, 941 (Tenn. 1994); State v. Tune , 872 S.W.2d 922, 928 (Tenn. Crim. App. 1993). However, we do no t find reversible err or under the circumstances. The ex parte conversation
was on the record, 3 and counsel was immedia tel y brought into the conferenc e. Counsel was given an oppor tunity toquestion the juror. Thus, we find no prejudice to the defendants. Furthermore, the trial judge discharged the juror upon a showing that this social relationship would interfere with his ability to reach a verd ict. The discha rge of a juror and substitution of an alternate juror is left to the sound discretion of the trial judge. State v. Cleveland , 959 S.W.2d 548, 551 ( Ten n. 1997); State v. Millbrooks , 819 S.W.2d 441, 445 (Tenn. Crim. App. 1991). The tri al judge did not abuse his discretion in di scharging the juror

.16 INEFFECTIVE A

SSISTANCE OF C

OUNSEL

Debra Ferrell contends tria l counsel was ineffectiv e by failing to pursue a motion to suppress the taped conversations. She obviously has different counsel
on appea l. This issue was not rai sed in the motion for new tri al, and we find no plain error. We also note this issue could not have be en raised in the motion for new trial since defendant w as represented at that time by the same trial counsel. This issue is waiv

ed. See Tenn. R. App. P. 3(e).

NEWLY DISCOVERED EVIDENCE
Finally, Debra Fer

rell contends newly

discovered evidence entitles her to a new trial. Specifically , she contends her post-tri al discovery of Kimberl and’s alleged
use of drugs at the timeof the incident and his low mental capability entitl es her to
a new trial. She

concedes the record does not include the appropriate documents supporting her argument. The granting o r refusa l of a new trial on the basis of newly dis covered evidence rests within the sound discretion of the trial c our t. State v. Walker , 910 S.W.2d at 395. The trial court must determi ne whether the result of trial would likely be changed with the newly discovered evidence. State v. Nichols , 877 S.W.2d 722, 737 (Tenn. 1994). On the basis of the s cant record be fore us, we are unable to conclude that the trial cour t abused its discretion i n denying the motion. This issue is without merit.

CONCLUSION

Based upon the foregoing, the jud gment of the trial court is AFF IRMED as to both defendants.17 _____________________________ JOE G. RILEY, JUDGE

CONCURS:

_____________________________ PAUL G. SUMM ERS, JUDGE

_____________________________ DAVID H. WELL ES, JUDGE