### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE JANUARY 2000 SESSION
STATE OF TEN

NESSEE v. LAR

RY S. BRUMI

T
Appeal from the Crimina l Court for R utherford C ounty No. F-34370B James K. Clayton, Jr., Judge

No. M1999-00154-CCA-R3-CD - Decided April 28, 2000

The Defend ant was convicte d in the Rutherford

County Circui

t Court of two counts

o f first degree murder and one count of conspiracy

to commit first degree murder, and he appealed. Courtof Criminal Appea ls, Welles, J., affir

med, holding that t

he evidence wa

s sufficient t

o support the convictions; th

e trial court did no

t err by den

yin g Defendant’s motion for mistrial concerning jury contamination; the trial court properly ruled on evidentiary issues; violation of the rule of sequestration did not result in prejudice against the Defendant; the trial court did not
err by denying the Defe

ndant a free transcript of his co-defendant’s trial; and the sentenc e imposed was proper.
T. R. A. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed

J UDGE D AVID H. W ELLES delivered t he op inion of the court, in which J UDGE T HOMAS T. W OODALL and S ENIOR J UDGE L.T. L AFFERTY joined.
Larry S. Wallace, La

Vergne, Tenne

ssee, for the app

ellant, Larr

y S. Brumit.

Paul G. Summ ers, Attorney General and Re porter, Mark E. D avidson, Assistant A

ttorney Ge

neral, William C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee.2 OPINION

On August 10, 1995, the Rutherford County Grand Jury indicted the Defe

ndant, Larry

S. Brumit, on two counts of first degree murder and one count of conspiracy to commit first degree murder. Following a jury trial conducted i

n September 1996, t

he Defendant wa

s convicted of all three charges. The trial

court sentenced

the Defendant a

s a Range I sta

ndard offender

to life with the possibility of parole for each count of first degree murder and to twenty-five ye ars for
co nspiracy

to commit first deg

ree murder. The

trial court order

ed that the twenty

-five yea r sentence be served consecutively to the Defendant’s sentences of life with the possib

ility of paro

le and to other previous sentences. Pursuant to Rule 3 of the Tennes see Rules of Appellate Procedure, the D

efendant now ap

peals. We affirm t

he judgment of the

trial court.

On appeal, the Defendant pr esents the following issues for our review: (1) whether the evidence presented at

trial was suffici

ent to sus tai n th e Def end ant ’s c onv ict ion s, o r al ter nat ive ly, whether the trial court properly affirmed the verdict when acting as thirteenth juror; (2) whether the trial court erre

d by failing

to grant the Def

endant’s motion fo

r mi strial con cerning jury contamination; (3) whether the trial court erred by allowing improper witness testimony ; (4) whether the trial co urt made im proper ruli ngs on various objections throughout the course of the trial, thereby

denying the Defendant a fair trial; (5) whethe r contact between a

testifying witness and members of

a victim’s family, one of whom also served as a witness, prejudiced the Defendant to such

a degree that he was denied his right to a fair trial; (6) whether the trial court improperly

denied the Defendant a complete transcript of his co-defendant’s trial; and (7) whether the prosecutor’s remarks during sentencing “inflamed the trial judge so as to prejudicially affect the [D]efendant’s sentence” and whether the sentence imposed was proper.

The charges in this c

asest em from the shooting deaths of two victims, James Albert “Bubba” Summar, II

, and Brian Antho

ny Bettis. O

n Wednesday, May 24, 1995 , both victims
were discovered dead behind a trailer located on Liberty Gap Road in a

remote area of Rutherford Cou nty. At

trial, Detective Ben Bennett of the Rutherford County Sheriff’s Department testified that prior to his death, Bubba Summar had been working as a police informant following his own arrest for the sale of marijuan a. While wo rking f o r police, Summar was involved in the investigation and subsequent indictment of Wayne Cartwright for the sale of marijuana. Ben

nett testified that Cartwright w as indicted in May

1995. He stated tha

t the investigatio

n resulting in the indictment agai

nst Cartwright wa

s extensive and invol

ved other targ

eted individuals. B ennett stated that neither the Defendant nor his co-defend ant, Mike Rhodes, were targeted in the investigation, but he reported that ac quaintances of th

e two had been sub

jects of the investigation. Bennett also reported that B ubba Summar would have been called to testify against Cartwright had he not been killed.
Doug Bicknell, Bubba

Summar’s second c

ousin, testified ab

out Summar’s relat

ionship withthe Defendant a

nd his co-defendant, Mike Rhodes. Bicknell reported that he and Summar had bought marijuana from and sold marijuana to Rhodes. He recalled that before his cousin’s death, they saw Rhodes often, at least onc e every other day , and he te

stified th at they “part[ie d]”3

together at the trailer where

Summar's body was later found by police

. Bicknell testified that he met the Defendant th

rough Rhodes and

began to see the Defendant

“[a] couple of times a week.” He testified that he,

Summar, Rhodes,

and the Defendant were all part of the same social group. He stated that the Defendant had witnessed drug transacti

ons within

the group and reported that he had seen the Defendant smoke marijuana with the group.

Bicknell testi fied that Rhodes and the Defendant had a close relationship, but that Summar and the Defendant

“didn’t like each other.” He claimed that the Defendant “thought [Summar]
was a punk.” Bickne

ll also testified tha

t he, Rhodes, and Sum

mar had shot guns

to gether. H e stated that Summar shot with his right hand andgenerally carried his

gun in the front o

f his pants. He stated that Summar did not use a holster.

Bicknell also reported

that he and Summar, who was living at the Liberty Gap Road trailer in 1994, were growing marijuana together on the property where the trailer was located. He stated that Summar was later arrested in connection w ith the marijuana. Bicknell testified that he, Summar, and the Defenda nt all worked for R

hodes during this

period of time. Bi

cknell stated that he left his job with

Rhodes to work for Brentwood Log Homes and

later “g ot [the Def

endant] a job with them.”

After the Defendant began to work for Brentwood Log Homes, Bicknell, the Defendant, and other employees were sent to Ohio to build a log house, where they stayed a t the same motel. Bicknell recalled an incident involving the Defendant that occurred while they wer e in Ohio: He and the other Brentwood

Log Homes employees were sitting in the motel roomdri nki ng on e day, and the Defendant

and another employee “were talking about Bubba [Summar] being a snitch.” Bicknell recalled that when he defended his cousin, the Defendan t “s aid that he would see that the little punk wo ul d get what was coming to him.” Bicknell reported that he “told [the Defendant] if he messed with my cousin, me and him would have dealings,” and the Defendant “said he was getting

too old for all t

hat f ighting.” Bicknell testified that the Defendant then “reached in his bag and pulled his gun and said he let his gun do his fighting for him.”

Martin Rhodes, co-defendant Mike Rhodes’ brother, testified that he was acquainte

d with Wayne Cartwright. He stated that someone, “supposedly Wayne,” had dropped of f copies of the indictmentagainst Cartwright at his home a couple of days before the deaths of Summar and Bettis. Summar was named in the indictment. After receiving copies of the indictment, Martin Rhodes “told everybody that [he] knew .. . [b]ecause [Cartwright] was supposed to be a friend of [his].” He recalled that he gave a copy of the indictment to his brother, Mike Rhodes, who “didn’t believe it.” He stated that he spoke to his brothe r the evening before the murders, and during their conversation, Mike Rhodes said that he was to meet with Bubba Summar to discuss “what had happened tha

t night before.”

Martin Rhodes testi

fied that when he

spoke with his brother later that night, Mike Rhodes said that Summar had agreed to meet with him at the trailer
on Liberty Gap

Road. Martin Rhodes testi fied that he calle

d the trailer at a

pproximately 6 :00 p.m.
on May 24, 1995 and spoke with his brother, who answered the phone. He stated that he next saw his brother at appro

ximately 11:00 p .m. that night at hi s home, at which time

his brother informed4

him that Summar and Bettis were dead. Martin Rhodes testified that he immediately

burned his copy of the Cartwright indictment after hearing this news because

he “didn’t want nothing to do withit.” He further testified that on the occasions when he saw his brother on t he d ay o f the shootings, his brother was intoxicated. He reported that the next day, his so n, who knew Kelly Bettis, Brian Bettis’ wife, called her to tell her that they had heard over a police scanner that two
men had been killed at the trailer. He stated that he and his son thenwent to the Bettis residence because Ms. Bettis “was all tore up about it.”

Martin Rhodes also testified that Mike Rhodes owned two handguns during the period of time surrounding the

victims’ deaths, a “.44 and a .25 or .22 automatic.” He reported that he had
seen the Defendant with a .38 caliber pistol. He testified that he had once believed Brian Bettis to be a “cop.” When asked whether he had known Bettis to carry large amounts of mon ey, Rhodes stated, “I’ve never seen it, but he was a gambler. He had money to bet with . . . .”
Kelly Bettis, victim BrianBet tis’ wife, testified that she had met victim Summar, codefendant Mike Rhodes, and the Defendant, and she reported that her husband had also known the Defendant. She described the events of May 24, 1995 as follows: She stated that her husband arrived home from work at a

pproximately 5 :00 p.m. with friend s, one of whom was Bub ba Summar. He and Summar arrived in a Ford Ranger pick-up truck. While at her home, Summar received a phone c all from Mike R hodes and af terwards to ld Brian Bett is that “he had to go because Mike was waiting.” They then “got rea dy to go,” and Summar put a 9mm handgun, which he hadbeen carrying that day but which belonged to Brian Bettis, under the passenger seat of the truck. She stat

e d that the gun was in a holster when Summar put it under the seat of the truck. Bettis testifiedthat although her husband had carried a gun on previous occasions when he had visited the trailer, he was not carrying a g un on the night of his death.

Bettis stated that her husband came outside to the truck, told her he was hungry, and ga ve her a fifty-dollar bill from his front right pocket. She testified that her husband always carried his money in his front pocket and reported that “[h]e had a lot of money” at that time, estimating the amount to be “hundreds.” He asked her to get food and told her he would return in a couple of hours.

Bettis estimated that Summar and her husband left her home at appro

ximately 6:00 p.m. She stated that it took between for ty- five minutes and an hour to drive to the trailer from her home. After they left, she went to the store, came home, and cooked dinner. At 9:00 p.m., after her son had gone to bed, she began to call the trailer. She stated that she “called out to the trailer all night,” but there was no answer. At approximately 7:00 a.m., Josh Summar, Bubba Summar’s younger brother, called her, and she asked him to drive out to the trailer to see what had happened. She did not hear back

from Josh Su mmar, but she r eceived a phone call at approximately 2:00 p.m. from Martin Rhodes, Sr., who told her that Summar and her husband had been killed. She called the sheriff’s department, and soon Martin Rhodes, Sr. and Martin Rhodes, Jr., neither of whomshe knew, arrived at her home. A chaplain sent by the sheri

ff’s departmen

t arrived shortly thereafter.5 Annette Rigney testified next. She stated that her husband was the Fosterville Volunteer Fire Department fire chief. She recalled that sh

ortly before 8:00 p.m. on May 24, 1995, she saw Bubba Summar, whom she knew, drive by the Fosterville Fire Department in a truck. She stated that the truck was headed towards Liberty Gap.

Josh Summar, Bubba Summar’s brother, also testified at trial. He recalled that he first met the Defendant in 1994 at a party at Mike Rhodes’ house. He testified that

Rhodes and his brother had sold marijuana tog

ether and that the

Defendant was p

rese nt d uring some of the drug transactions,

although he never saw the Defenda nt directly i

nvolved in any

of the transactio

ns. He stated that these t

ransactions occ

urred when his co

usin, Doug Bickn

ell, his brother, and the Defendant

were living together at Rhodes’ house. According to Josh Summar, the Defendant and Bubba Summar did not like each other and refused to speak to one another while they lived together.

Summar testified that his b

rother practic

ed target shooti

ng at the proper

ty where the trailer
was located. He recalled having seen Bubba Summar shoot a 9mm

pistol, a .38 caliber pistol, a .25 caliber p

istol, and a .12 gau ge “sawe d-off [s hot gun with a] pistol g

rip.” He stated th

at his brother shot with his right hand. He further testified that his brother often carried a pistol on his person, usuall y either a 9mm pistol or .25 caliber pistol, both owned by Brian Bettis. Summar stated that his brother g

enerally c arried guns in

his pants. He explained that h is brother kept his gun in a holster when it was stored under the seat of a vehicle, but removed it from the ho lster whenever he carried

it on his person. Summar identified the holster found on his brother’s body as the holster which he had seen under the seat of Bettis’ truck on the night of the murders.

Josh Summar summarized the events of May 24, 1995 as follows: He wor ked with his brother, Bettis, and others during the day. At approximately 3:00 p.m., Bubba Summar received
a phone call and the

n told Bettis that the

y were to me

et Rhodes a

t the t railer. After work, they went to the Bettis home, and Bubba Summar received another phone call. He emerged from the house and told Bettis that they needed to leave to meet Rhodes. Bu

bba and Josh Summar pu t a box containing between a half-pound and a pound of marijuana in the bed of the truck. Josh Summar stated that his brot

her never car

ried that quantity

of marijuana “un

less he was going

to get rid of it.” Josh Summar testified that when they left, Bettis and his brother had at least one gun, a 9mm pistol, under the seat of the truck, and there was a set of stairs in the truck bed that they planned to attach to the back of the trailer.

Th e following morning, Josh Summar was awoken by his father, who could not fi n d Bubba Summar. Josh

Summar called Kelly Bettis, who was cry ing and asked him to go to the trailer to determine what

had happened. Josh

Summar and a frie

nd d rove to the trailer on the morning of May 25, 19

95 at approximately

9:00 a.m. and first

discovered the b

ody of Bria

n Bettis lying next to the truck. Summar statedthat he “freaked [and] went and got back in [his] car and tried to find [his] dad because [he] didn’t know what to do.” Unable to find his father, he went to his grandparents’ house. His grandmother called the police

while his grandfather accompanied him to the trailer. After seeing Bettis’ body, his grandfathe r went into the trailer, where he found6

several beer and liquor b

ottles. His grandfather asked Josh Summar to throw them away, and as he left the trailer to dispose of the bottles, Summar discovered his brother’s body. He stated that his brother was ly

ing on hisside with a holster attached to his shorts. He testified that the holster
was clipped to the shorts backwards, and he stated that he had never s een hi s brother wear a holster in such a manner. On cross-examinat ion, Summar acknow

ledged that in his

statement to police, he admitted that he thought his brother might have shot Bettis, “that they might have got into it and that that could have happened.”

Tabitha Rhodes, the wife of Mike Rhodes, testified that she and her husband were in the processof obtaining a div orce at the time

of trial. She also stated that she had known the Defendant

for approximately four years. She reported that her husband had been involved in “the circle,” which she defined as “a group of people who deal marijuana together.” She testified that the Defendant was n

ot involved in the g

roup but that the De

fendant was “ar

ound it.” She also recalled having seen the Defendant use marijuana.

Rhodes testified th

at she knew Bubba

Summar, whom she de

scribed as “rea

l, real close to [her family]. ” She stated, “He was like part of the fa mily.” She testified that on the night before Summar’s death, sh e found out from he

r brother-in-la

w, Martin Rhodes, that Summar was
a police informant. She recalled that when her husband discovered this information, he “was tore up. He was shocke d, very su rprised. He couldn’t believe [Summar] would do something like that.” According to Rhodes, her husband expressed concern that Summar and the police might be “set[ting] up” another member of “the circle.”

Rhodes described the evening of May 24, 1995 as follows: Her husband arr ived home in the late afternoon and

talked for appro

ximately twenty minute

s with visitors who pu

lled into their dri vew ay. When her husband entered the house, he was “drunk.” At some point that afternoon, the Defendant stopped by to visit Rhodes, and they went into the kitchen to ta

lk about going to the trailer.

Rhodes int

ended to “

throw[]

. . . out” Allen Daugherty, the resident of the trailer at the time, and the Defend ant agreed to acco mpany Rhodes t o the trail er. As they were l eaving, Tabitha Rhodes “joking[ly]” told her husband, “do n’t go up t here and . . . ge t crazy and k

ill nobody.”

Rhodes and the Defendant left in Tabitha Rhodes’ station wagon and arrived back at the Rhodes’ home at

approximately 9:30

p.m. They pulled into the driveway “pretty quick,” startling Tabitha Rhodes, who went to

the door to see who

had arrived. She

stated that when sh

e got to the door, Mike Rhodes was “rustling around i n th e floorboard” of the car, and the Defendant “darted out to his car and left.” Mike Rhodes then “went

to the woods” behin

d their home and returned about fifteen minutes later. She stated,“He was pretty upset.” Mike Rhodes talked to his wife about wha

t had happened an

d left their home, r

eturning late du

ring the night.

Tabitha Rhodes testified th

at she later aske

d the Defendant what ha d happened at the trailer on the night of the shootings, and the Defendant told her “it did not have to happen that way, that they

drew on him first and he d id what he had to do. ” She also testifie d that almost a7

week later, her husband asked her to dispose of the telephone from the trailer, and she did so by throwing it off a bridge. Finally, s he testified that almost a year after the murders, she found Bubba Summar’s wallet in the woods behind her house. She reported tha t her c ousin subsequently burned it.

Rhodes maintained that the Defendant’s statement to her concerning what had happened
on the night of the murders did not change the impression that her husband had previously given her. However, she claimedthat when she foun d the wallet, her i

mpression of that n

ight began to change. She testified that she was unsure at the time of trial what had happened at the trailer, but stated on cross-examination that she was “angry with [her husband] because he lied to [her].”

Donald Ivey, the De fendant’s roommate at the time of the murders, recalled that on the evening of May

24, 1995, he was in his room watching television when the Defendant returned home. He stated that he heard someone start the washing machine and then turn on the bathtub faucet. Shortly ther

eafter, he saw

the Defendant in

the kitchen and jokingly asked him, “Did you kill somebody tonight?” According to Ivey , the Defendant

stopped what

he was doing, looked at him, and said nothing. Ivey r etreated to his be

droom. Later, I

vey agai n asked the Defe

ndant, “Did you kill someb

ody?” This time,

the Defendant r

espo nded, “You can’t help being in the wrong place at the wrong time; can you?” At trial, Ivey stated, “I don’t know if he was joking with me or not.”

Detective James Harrell of the R utherford Count y Sheriff’s Department introduced videos which he had recorded of the crime scene. He testified that after taping the scene, he we

nt into the trailer and recovered a shotgun. He stated tha t he found the shotgun under the couch, and when he ejected it, a s

pent shell fell

from the gun; Harrell was unsure whether it came from the magazine or the chamber of the gun.

James E. Gage, who wa s a lieutenant det

ectiv e for the Rutherford County Sheriff’s Department

at the time of

the murders, testified that he investigated the deaths of Bubba Summar and Brian Betti s. He stated that on June 6, 1995, he recovered a 9mm pistol from the wooded
area behind Mike Rhodes’ house after Rh odes disclosed the

location of the pis

tol. Gage also testified that he was present at the autopsy of Bubba Summar a n d witnessed the state medical examiner, Dr. Charles Harlan, remove a bullet from Summar’s neck. He stated that he submitted boththe bullet and the 9mm gun, which was believed to have been in Bubba Summar’s possession on the night of his death, to the Tennessee Bureau of Investigation’s Crime Laboratory for testing. Results from tes ts performed on the items indicated that the bullet could not have been fired from the gun. Special Agent Steve Scott of the TBI

testified that he e

xamined the 9mm pistol and bullet submitted by Detective Lieutenant Gage . He concluded that thebullet could only have been fired from a .38 special or a .357 magnum handgun. He testified that he also examined the shotgun recove

red from the trai

ler and conclude

d that the spent she

ll whic h Officer Harr

ell
saw fall from the shotgun had most likely come from the barrel of the gun, rather than from the magazine.8 Gage also testified about other evidence found at the

crime scene. He reported that he was called to the scene at approximately noon on May 25, 1995, and he pa ssed the Fosterville Fire De partment

on his way the

re. He describe

d the location of th

e trailer as “ve

ry se cluded, ” “isolated,” and enclosed by woods. He reported that the trailer

was own ed b y the Sum mar fam ily, leasedto Mike Rhodes, and subleased to Allen Daugherty, who was then living in the trailer with Bubba Summar. He testified that in the woods near the trailer, office

rs found marijuan

a plants and shell casings from several different weapons, none of which weresignificant to the officers’ investigation of the case and which Gage attributed to target shooting.
Gage testified that at the time he arrived at the scene, Bettis’ truck was still running. He stated that there were two soft drink bottles setting upright in the bed of the truck. He explained that the bottles were significant because it was doubtful that

the bottles would ha

ve remained in an upright position in the bed of the truck had they been there during the drive to the trailer; he explained that the roads to the trailer were “rocky” and “ve ry rough.” He therefore assumed that the bottles had been placed in the bed of the truck after

the truck ar rived at th e trailer si te. Gage also stated that officers found steel stairs in the bed of the truck and a box of marijuana in the cab of the truck betw

een the seats.
Gage testified that Bettis’ body was found outside the driver’s side of the truck and that Summar’s body was found ou ts ide the passenger’s side of the truck. Officers found a dime on the ground near Be ttis’ bod y. Gage explained the significance of the dime, stating, “as tight as [Bettis’] jeans were, it appeared . . . that someone had entered that pocket.” He testified that two one-hundred

dollar bills were

found in Bettis’ f

ront left pocket.

Gage also

described

the holster found on Summar’s body , stating that alth

ough it was “an in

side the pants holst

er,” it was found clipped backwards to the outside of Summar’s shorts. He demonstrated to the jury th

e difficulty of retrieving a gun

from a holster cli

pped in the same position to his own pants and stated that a right-handed

shooter would have to turn his hand around to reach the gun. Gage state d that although no guns were found at the scene, Mike Rhodes led them to a 9mm handgun, which was wrapped in “two blue shop rags” and placed at the base of a tree in a wooded area beh ind his house; officers later discovere d that th e gun belonged to Brian Bettis. Gage also testified that officers recovered Bettis’ wallet from the truck but that Summar’s wallet was never re covered.

In add ition, Gage testified concerning phone records which corresponded with Br ian Bettis’ cellular phone. He stated that the last call made from the phone on May 24, 1995 was to the trailer; he stated t

hat the call occ urred at 7:32 p.m. and lasted two minutes. In addition, he reported that officers were unable to locate the phone which had been inside the trailer.
Gage testified that he attended the autopsies of both victims. He stated that although Brian Bettis suffered two gunshot wounds to the head, an entry and an exit wound, the bullet which caused the wounds was never recovered. He testified that Bubba Summar suffered one gunshot wound to the neck an d that a bullet was recovered from Summar’s body. Gage stated that the bulletwas fired from a .38 caliber revolver, but reported that despite an extensive search, a .38 caliber revolver matching the bullet which killed Summar was never found. He testified that the9

Defendant

informed police that the murder weapon had been thrown from

a car and assisted

in a search for the weapon, but the weapon was never recovere d.

In addition to photographs of the crime scene, Gage introduced a videotape of

interviews he conducted with the

Defendant short

ly after the

murders. During the inter views, the Defendant didnot deny bei

ng present at the

trailer at the time

of th e victims’ deaths. However, the Defendant

stated, “I did

n’t shoot those boy

s,” insisting inste

ad that Mike Rhodes

killed both victims. The Defendant maintained that he was standing near the trailer when the victims were shot, and he presented two different versions of the order of the murders: Initially , he claimed that Summar was killed first because he had a weapon, and later he claimed that Bettis was killed first. According to Gage, the Defendant indicated that Bettis was also a

rmed. Gage tes

tified that both the Defendant and Mike Rhodes initially lied to him about being at the trailer on the night of the murders, each tried

to blame the other, and both attempted to assert that the shootings occurred in self-defense. Gage testified that after the second interview, the Defendant drove with police to the Fosterville area, where the Defendant confirmed “the get-away route” previously identified by Mike Rhodes. The Defendant also told officers that there was one “ murderweapon” and directed officers in

a search for it. Gage stated that the Defendant asked him whether the officers had found fingerprints and indicated that if they fo und the murder weapon, they would find fingerprints.

Fin all y, Gage introduced an audio tape recorded in a patrol car in which the Defendant and Mike Rhodes were riding. On the tape, the Def

endant said

to Rhodes, “If nothing had ever been said, we’d be walking out today.” At another point, Mike Rhodes said to the Defendant, “What
are we doing, man? Are we going to fi ght each other? Larry, I don’t want to do that.” The Defendant

later said to Rhodes, “You kno

w, if anything came out, it was more or less y our mess.” He also stated, “What was original ly agreed on was if they had me, that you would take responsibility.”

Medical examine r Charles Harlan t estified that he pe

rformed autopsie

s on both victims in this case. He stated

that Summar died of

a “near gunsho

t wound” to the nec

k that was f

ire d from between four and six inches from the skin’s surface. He reported that the bullet which killed Summar was either a

.38 or .357 caliber bullet. He stated that the bullet entered Summar’s body in such a manner as to sever

the spinal cord, causing “essentially instantaneous unconsciousness.” Harlan testified that

he fo und no “ defe nsi ve w oun ds” on S umm ar’s bod y. He reported that at the time of his death, Summar had a blood alcoho

l content of .03 g

rams percent an

d th a t his blood containedtrace amounts of diazepam and nord

iazepam; in addition

, a urine drug sc

reen performe

d
on Summar indicated th

e presence of te

trahydro cannabinol, the active ingredient in marijuana. Harlan maintained that the low amounts of alco

hol and drugs in

Summar’s body

would have had little or no effect on his ability to function.

Harlan testified that Bettis died of a “distant gunshot woun d ” to the head, which he definedas a shot fired fr om a distance of g

reater than twe

nty-four in

ches . He described two gunshot wounds on Bettis’ body, an entry wound on the r ight side of

the head and an exit wound10

on the left. Harlan

stated that the bullet which killed Bettis traveled through his brain, producing “essentially

instantaneous unconsciousness and loss of func tio n.” He reported that Bettis died within minutes. Harlan further testified that at the time of his death, Bettis had a blood alcohol level of .27 grams p

ercent a nd that his blood contained trace amounts of both diazepam and nordiazepam;in addition, a urine drug screen indicated the presence of tet rahydroca

nnabinol. Harlan explained t hat the amount of alcohol in Bettis’ body would have significantly impaired his reaction time and altered his judgment.

Harlan also introduced anautopsy photograph showing blood coming from Bettis’ mouth and nose. He explained that the blood was primarily the result of a hemorrhage in the oral and nasal pharynx that caused “a cough . . . or a gag reflex.” Harlan explained that Bettis may have been coughing between the time he was shotand the time he stopped breathing and agreed that if a person had been standing above Bettis at that time, there would have been a substantial risk that the person would have been splattered with blood. He also testified that it was unlikely that
a pers on s tan din g fif tee n to twe nty f eet away from Bettis at the time of his death would have gotten blood on him

. I. SUFFI

CIENCY OF THE

EVIDENCE

The Defendant first

argues that the evidence

presented at trial was insufficient to support his convictions,

or alternativ

ely, that the trial judge erred “in failing to exercise [his] power as ‘13 th juror’ in not findin

g that the State f

ailed to prove all

the essenti al elements of the crimes charged.” Tenne ss ee Rule of Appella te Procedure 13(

e) prescribes t

hat “[f]indings of g

uilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt bey ond a reasonable doubt.” Tenn. R. App. P. 13(e). In addition, because conviction by a trier of fact

destroys the presumption of innocence and imposes a presumption of g uilt, a convicted criminal defendant bears the burden of showing that the evidence was insufficient. See McBee v. State, 372 S.W.2d 173, 176 (T enn. 1963); see also State v. Evans , 838 S.W. 2d 185, 191 (Tenn. 1992 ) (citing State v. Grace , 493 S.W.2d 474, 476 (Te nn. 1976), and State v. Brown , 551 S.W.2d 329, 331 (T enn. 1977)); State v. Tu ggl e , 63 9 S.W.2d 913, 914 (Tenn. 1982); Holt v. State , 357 S.W.2d 57, 61 (Tenn. 1962).

In its r eview of the evid ence, an appell

ate court must aff

ord the State “the

strongest legitimate view of the evide

nce as we ll as all reasonable and legitimate inferences that may be drawn therefrom.” Tuggle , 639 S.W. 2d at 914 (ci ting State v. Ca bbage , 571 S.W .2d 832, 835 (Tenn. 1978)) . The court may not “re-weigh or re-eva luate the evidence” in the record below. Evans , 838 S.W.2 d at 191 (cit ing Cabbage , 571 S.W.2d at 836). Likewise, should the reviewing court find particular

conflicts in the trial testimony, the court must resolve them in favor of the jury verdict or trial court judgment. See Tuggle , 639 S.W.2d at 914.
Having reviewed the re

cord in this case, we co nclude that sufficient evidence was presented at trial to support the Defendant’s convictions. The State presented several witnesses who linked the Defendant socially to a “circle” of people who de alt marijuana, including Wayne11

Cartwright

and Mike Rhodes, wi

th whom he was known t

o be friends. Evidence presented at trial also established that Summar and Bettis were known to be friends. In ad dition, the State presented evidence that be

fore his death, victim Summar worked as a police informant and was named in an indictment against Cartwright.

Witnesses testified that both the Defendant and co-defendant Rhodes wer e u pset that Summar had been working undercove r with police. Doug Bicknell and Josh Sum

mar both testified that the Defendant and Summar did not like each other. Bicknell quoted the Defendant
as saying that Summar was a “punk” and that “he would

see that the little p

unk would

get what
was coming to him” because of his involvement with police. Bicknell also quoted the Defendant
as saying that “he l et his gun do his fighti ng f o r him.” Furthermore, Martin Rhodes stated that he had seen the Defendant with a .38 caliber handgun, the same type of weapon which was used to kill Bubba Summar.

On the evening of the murders, Summar informed friends that he and Bettis were

to meet withRhodes. He took a box of marijuana with him to the trailer. At the same time, Rhodes, who
was intoxicated, and the Defendant discussed meeting Summar and then went to the trailer, where the victims’ bodies were later found. Tabitha Rhodes testified when they returned, the Defendant and her husband pulled into her driveway on the night of the murders so quickly that they startled her. She stated that while her husband “rustl[ed] around on the fl oorboar d,” the Defendant “darted out to his ca r and left.” Bettis’ pistol was later found behind Rhodes’ home. Tabitha Rhodes also reported that the Defendant told her, “it did not have to happenthat way, that they drew on him first and he did what he had to do.”

The Defendant’s roommate, Donald Ivey, testified that when the Def endant arrived

home
on the night of the shootings, he immediately began to wash clothes while he ran water for a bath. When Ivey jokingly

asked the Defendant whether he had killed someone, the

Defendant first

did notrespond but later answered, “You can’t help being in the wrong place a t the wrong time; can you ?” Furthermore, th

e medical examiner

who performed a

utopsies on the vic

tims ’ bodies testified that Bettis likely coughed up blood before his death and agr eed that a p erson i n close proximity to Bettis at the time would likely have been splattered with blood.

The Defendant himself admitted his presence at the t railer a t the time of the shoo tings. He also presen ted incons istent ver sions of th e shootings to polic e, but insisted that his codefendant Rhodes actually

fired the shots tha

t k illed both victims. In addition, Lieutenant Detective Gage introduced an au dio tape of a conversation between the Defendant and codefendant Rhodes in

wh ich th e Defen dant m ade, a mong o thers , the f ollo wing s tatem ents: “If nothing had ever been said, we’d be walking out today”; and “What was originally agreed on was if they had me, that you would take responsibility .”

This was sufficient evidence from which the jury could have concluded that the Defendant conspiredto commit and committed the first degree murders of the victims. See

Tenn. Code Ann. §§ 39-13-202, 39-13-203. Furthermore , we conclude tha t the trial court pr

operly exer

cised its12

duty as thirteenth juror. Our supreme court has det ermined that “no explicit statement on the record is requiredby the trial judge that the [thirteenth juror] duty has been per formed. . . . [and] where a motion for new trial is denied without a statement, an appellate court may presume that the trial judge appr

oved the jury

's verdict as t

h e thirteenth juror.” State v. Carter , 896 S.W.2d 119, 120 (Tenn. 1995).

Thus, alt

hou gh the trial judge in this case did not make a statement on the record concerning his duty as thirteenth juror, we may presume that he app roved the jur y’s verdict as thirteenth juror, and we find no error in his doing so.

II. JURY CONTAMINATI ON

The Defe ndant next arg ues that the trial court erred by failing to grant his motions for mistrial concerning jury contamination made during the course of the trial. Specifically, he complains that James Albert Su mmar, Sr., father of victim Bubba Summar, approached and spoke withtwo prospective ju

rors and to a man w

ho actually

served as a

juror in this case. He contends that these incidents violated

his “right to an appearance of a fair trial, if not actually a fair trial.”
During voir dire, one of

the prospective j urors asked to speak with the judge and informed him in chambers that

she had been approached by James Albert Summar, Sr. She reported that Summar approached

her in the hallway

outside the courtr

oom and said, “My

son is dead becau

se of that boy,” referring to the Defendant. She stated that he also told her that

“the other

person that had been charged had already be en tried and co nvict ed.” She then pointed out a second pr osp ective juror whom she claimed to have also seen speaking with Mr. Summar. When questioned by the court, the second juror admitted that he had spoken with Summar. He stated that he shared his views on conspiracy and the dea th penalty with Summar but did not receive information from Summar. The f irst prospective juror was excused from service, and the second prospective juror was never called to serve.
During the trial, a trainee from the sheriff’s department informed the court that on the first day of jury selection, she had seen Mr. Summar talking with a man who was later chosen to serve
as a juror. She told the court that she was “pretty sure” that the man she had see n was juror Harold King, and she described him as having “back trouble.” She claimed that she overheard Summar telling the juror that the Defendant had killed his son.

The tria l court questioned juror King about the incident. King stated that he had aske d Summar where the jurors were to stand on the first day of jury selection, but maintained that he had not furtherconversed with Summar. He also reported that he did not have “back trouble.”

It is the law in Tennessee that an unexplained juror conversation with a third party is good
cause for a new tria

l. State v. Parchman , 973 S.W.2d 607, 612 (T enn.1997). When the

re is extraneous prejudicial infor mation or any

outsid e influence i s brought to bear on a juror, the validity of the verdict is questionable. Id.13 In Sta te v. Blackwell

, 664 S.W.2d 686 (Tenn. 1984), the Suprem e Court adopted Ru

l e 606(b) of the Federal Rules of Evidence and defined the type of evidence admissible from a juror to imp ea ch a jury verdict. See id. at 688-90. This hold ing, subsequentl

y establishe

d as Rule 606(b) of the Tennessee Rules of Evidence, prohibits a juror from giving testimony on any matter
or statement occurring during the course of the jury's deliberations or the effec t of anything

upon a juror's mind or emotion as influencing his or her vote. See Tenn. R. Evid. 606(b). However, the ruleallows a juror to testify on the question of whethe r any e xtraneous prejudicial information was improperly

brought to

the jury's attention or whether any outside influence was improperly brought to bear upon any juror. See id.

If it is shown that one or more jurors has be

en exposed to extr

aneous p rejudicial information or improper influence, there ar ises a rebuttable presumption of prejudice, and the burden then shifts to the prosecution to expla in the conduct or to d

emonstrate the ha

rmlessness of it. Parchman , 973 S.W.2d at 612; State v. Young , 866 S.W.2d 19 4, 1 96 (Ten n.Crim .App.1992). In order to shift the burden to the prosecution to demonstrate the harmlessness

of the communication with the jury, the threshold question is whether the statement communicated to the jury was prejudicial to the Defendant. Parchmanat 612.

In this case, we conclude that the Defendant has failed to show prejudiceresulting from the communicat ions b etween Summar and members of the jury panel because neither of the prospective jurors who admitted to having been approached by Mr. Summar actually served on the jury. Furthermore, the Defe ndant has no t demonstrated prejudice with regard to Mr. Summar’s contact with juror King. King stated that he did not converse with Summar about the trial and did not receiv

e information abo

ut the trial from Sum

mar. In additi

on, alth ough the sheriff’s department trainee reported that the man with whom she saw Summar spea king had “back problems,” King denied having any such problems. Moreover , the tr ainee could not conclusively identify the juror whom she saw speaking with Summar. It therefore appears that she may have

been mistaken when she identified King as the juror. We find no error or abuse of discretion by the trial j udge in refusin g to grant a

mistrial because of possible jury contamination.

III. I MPROPER TESTIMONY

The Defendant next co

ntests the admiss

ion of sp ecific testimony by three differ ent witnesses. He argues that Doug Bicknell should no t have been allowed to testify that the Defendant

“pulled [a] gun and said that he let his gun do his fighting for him.” He also complains that Martin Rhodes was improperly allowed to testify that Mike Rhod es was to meet Bubba Summar at the trailer on the night of Summar’s death. Finally, he argues that the trial cour t erred by allowing Tabitha

Rhodes to test

ify t hat “Michael [Rhode s] was talking to [the

Defendant] about going up to the trailer” to meet Summar on the night of the shootings.

The Defendant failed to object to Doug Bicknell’s testimony at the time of trial. Fa ilure to make a contemporaneous objection waives consideration by this Court of the issue on appeal.14

See Tenn. R. App. P. 36(a); Statev. Killebrew , 760 S.W.2d 228, 235 (Tenn. Crim. App. 1988)

. We conclude that this issue has therefore been waived.

The Defendant did obj ect, however, to the testimony

of Martin Rhodes a

n d Tabitha Rhodes. The trial court allowed Martin Rhodes’ testimony on the basis of Rule 803(3) of the Tennessee Rules of Evidence, the state of mind exception to the hearsay rule. The trial court overruled the Defendant’s objection concerning Tabitha Rhodes’ t est imo ny after the State countered that the testimony showed motive and constituted statements made in furt h erance of
a con spi racy.
Rule 803(3) of the Tennessee Rules of Evidence allows admission of a “statement of the declarant’s then existing state of mind, emotion, sensation, or physical co

ndition (such as int

ent, plan, motive, design, mental feeling, pain, and bodily health)

. . . .” Martin Rhodes’ testimony that his brother

stated his intention

to meet Bubba Summa

r at the trailer f

alls under this

exception to the hear say r ule , an d we thu s co ncl ude tha t th e tr ial cou rt p rop erl y a dm itted Martin Rhodes ’ testimony.

We also conclude that the trial cour t properly admitted Tabitha Rhodes’ testimony that her husband told the De

fendant of his inte

ntion to meet Bubba

Summar at the trail

er. Again, this testimonyfalls under the state of mind exception to

the hearsay

rule. Furthermo

re, we agree

with the Statethat the testimony could have also been admitted under Rule 803(1.2) of the Tennessee Ru les of Evidence. Rule 803(1.2) allows f

or admission of a “statement offer ed against a part y that is . . . a statement of a co-conspirator of a party d

uring the cours

e of and in furtherance of a conspiracy.” Tenn. R. Evid. 803(1.2)(E).

“ [C] o-conspirator

hearsay . . . may be ad

mitted when ‘(1) t

he declaration w

as made in furtherance

of t he co nsp ira cy; ( 2) i t wa s ma de d uri ng th e pen den cy of the conspiracy; and (3) there is independent

proof of the existence of the conspiracy and the connection of the declarant and the defendant to do it.’” State v. Hutchison , 898 S.W. 2d 161, 169 (Tenn. 1994 ) (quoting State
v. Hodgkinson , 778 S.W.2d 54, 61 (Te nn. Crim. App. 1989)). Statements of a co-conspirator may be admitted when a conspiracy is shown by a preponderance of the evidence. See State v. Stamper , 863 S.W.2d 404, 40 6 (Tenn. 1993 ). In this case, as we have already concluded, the Statepresented sufficient evidence to establish the existence of a con spiracy. Moreover, the statement abo ut which Tabitha Rh odes testified wa

s made during the

pendency o

f and in furtherance of the conspiracy. We thereforeconclude that the statement was properly admitted under Rule 803(1.2) of the Tennessee Rules of Evidence.

IV. UNFAIR TRIAL

The Defendant complains that the trial court erred “in its variousruling [sic] on objections made during the course of the trial,” thereby denying the Defendant

a fair trial. The Defendant fails to spe cif y the obj ect ion s or rul ings to w hic h he refe rs. Issu es n ot s upp ort ed b y argument , citation to authorities, or appropriate references to the record are treated as waived. See Tenn. R.15

Ct. Crim. App. 10(b). However, assuming for the sake of argume

nt that the trial co

urt did err in ruling on certain objec

tions during tria

l, we are convinced by our review of the record that any such error is harmless. See Tenn. R. App. P. 36(b ); Tenn. R. Crim. P. 52(a). This issue is without merit.

V. CONTACT BETWEEN WITNESSES

The Defendant next contends that improper contact occurred between two witnesses who testified at

trial, resulting in prejudice against the Defendant and a violation of his rig

ht to a fair trial. Donnie Ivey

, the Defendant’ s roommate, repor ted to the trial court that before he testified, Josh Summar, victim

Bubba Summar’s brother, approached him outside the courtroom. At the time, Josh Summar had already testified. Ivey stated that did notrealize he should not have been speaking with another witness and t herefore told Summar what his testimony was to be. He maintained that he told Summar “exactly” the same information that he later shared in court and
r eportedthat his discussion with Summar did not affect his testimony in any way. Ivey a ls o informedthe court that after he testified, James Albert Summar, Sr., approached him outside the courtroom and asked, “What’s this about blood?” He responded that he hadnot testified about blood.

Rule 615 of the Tennessee Rules of Evidence, commonly called the rule of seque stration, provides in pertinent part that “[a]t the request of a party the court shall order witnesses, including rebuttal witnesses, excluded at trial . . . .” “The purpose of the rule is to prevent one witness from hearing the testimony of another and adjusting his testimony accordingly.” State v. Harris , 839 S.W.2d 54, 68 (Tenn. 1992). Although t he rule does not provide for a sanction for its violation, prior to passage of the rule,“[t]rial judges had always been af forded wide d iscr etion in determining whether to impose the sanction of excluding the evidence of a wi

tness suspected of having violated the rule.” State v. Anthony , 836 S.W.2d 600, 605 (Tenn. Crim. App. 1992).

In this case, the Defendant moved for mistrial after Ivey reported to the

court that he had spoken wit h Josh Su mmar. The t rial court d enied the m otion, st ating, Even if Mr. [Josh] Summar had tried to influence him, he wouldn’t have known what to influence him about because their testimon y – had they both been eyew itnes ses or had they both known something about the same set of circumstances,

I might have a different ruling, but we’re talking

about an entirely different set of

circumstances.

From our review of the

record, we are

satisf ied th at no prejudice resulted from violation of the rulein this case. We believe that the purpose of the rule, to prevent one witness from influencing the testimon y of another, was satisfied in this cas e. We theref ore do not b elieve the t rial judge erred by d

enying the

Defendant’s moti

on for mistrial.16 VI. TRANSCRIPT FROM CO-DEFENDANT’S TRIA L

The Defendant next argues that the trial court erred by failing to provide him with a free, complete transcript of his c

o-defendant’s t

rial. He claims that the trial court thus denied him the opportunity

to properly prepare for his own trial. He maintains that he needed the tran

script to preparefor the direct and

cross-examination of various wit nes ses and to d evel op h is t ria l st rat egy.

It is well established that “a n indige nt defendant in a criminal prosecution must be provided withthe tools of an adequate defense or appeal when those tools are available for a price to other defendants.” State v. Elliott , 524 S.W.2d 473, 475 (Tenn. 19 75). Among the tools generally provided is a free transcript of prior proceedings in the

defendant’s own case, “where the transcript [is] ne

eded to vindicate a legal right.” Id. at 476. “[T]he courts of this state have recognized

that a trial judge has the authority to require a transcript of prior proceedings in [an] indigent defendant’s own

case be furnishe

d to him if it appear

s that it is necessary in the interests of justice.” Id. However, our supreme court has held that the “free transcript doctrine” does not extend so far as to guarantee an indigent defendant the transcript of testimony in athird party’s trial. Id. Thus, we con clude that in this cas e, the Defend ant did not have a “righ t” to a f ree transcript of his co-defend

ant’s trial,and we find no error or abuse of discretion in the trial court’s denia l of th e tran scrip t. In addition, we conclude that the Defendant has not demonstrated how he was prejudiced by such denial.

VII. SENTENCING

Fin all y, the Defendant a rgues that th

e State imp roperly questioned a witness at the sentencing hearing, “inf

lam[ing] the trial ju

dge so as to prejudicially affect [his] sentence.” Lucy K ilburn, who prepared the Defendant’s presentence report, testified at the sentencing he aring

. On cross-examination, de fense c ounsel questioned her about two letters of reference from the Defendant’s employer a

t the Northeast Cor

rectional Center

, where he is inca

rcerated. He a

ls o questioned her concerning two certificate

s, one for the comp

letion of a Bible

class and the other for completion of

an anger management course. On redirect, the State asked Kilburn whether she
was “aware of the f

act that [the De fendant] was stabbed while he was in prison.” Kilburn responded, “I had heard that,” and imm ediately after her response, the trial judge sustained the objection.
Contrary to the Defendant’s contention that the question was “intended to inflame the trial judge and influence his

decision” reg

arding sentenc

ing, it appears t

hat th e State was simply exploring claims about

the Defendant’s good behavior while incarcerated which were raised on cross-examination. In any event, the trial judge promptly sustained the Defendan t' s objection, and
we find no evidence that the question prejudicially

affe cte d th e Def end ant ’s s ent ence in a ny wa y.
The Defendant further argues that “it was er ror t o sentence the [Defendant] to the maximum twenty-five years on the Conspiracy conviction and respectfully requests a downward de part ure.” The trial judge applied nine enhancement factors and no mitigating factors. The17

Defendant

contests only the application of enhancement factor (2), that the “def enda nt w as a leader in the commission of an offense involving two (2) or more criminal actors.” Tenn. Code Ann. § 40-35-114(2).

When an accused cha

llenges the leng

th, range, or ma

nner of service

of a sentence, th

is Courthas a duty to conduct a de novo review of the sentence with a presumption that the determinations made by the trial court are correct. See Tenn. Code Ann. § 40-35-401(d). T his presumption is “ con ditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

When conducting a d e no vo review of a sentence, this Court must consider: (a) the evi den ce, i f any, received at the trial and sentencing hearing; (b) the presentenc e report; (c) the principles of sent encing and arguments as to sentencing alternatives; (d) the nature and characteristics of the criminal co nduct involved; (e ) any statutory mitigating or e nhancement f actors; (f) any statement made by the defe ndant regarding sentencing; and (g) the potential or lack of potential for rehabilitation or tre atment. See State v. Thomas , 755 S.W.2d 838, 844 (Tenn. Crim. App. 1988); Tenn. Code Ann. §§ 40-35-102, -103, -210.

If our review reflects that the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentenc e after having

given due consid

eration and prop

er weight to the factors and

principles set out under the sentencing law, and that the trial court’s findings of fact are adequately supported by the record, then we may not modify the sentence even if we would have preferred a different result. See State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

We find no error in

the trial court’s imposition of a twenty-five year sentence for criminal conspiracy to commit first deg ree murder. The

trial court consid

ered the releva

nt sentencin

g principles,facts, and

circumstances in sentencingthe Defendant. From our review of the record,
we conc lude that there is ample support for the sentence imposed and therefore affi rm th e judgment of the tr

ial court.
The judgment of t

he trial court is a

ccordingly

affirmed in all r

espects.

David H. We lles, Jud ge Thomas T. W oodall, J udge L.T. Lafferty, Seni or Judge