# FILED February 19, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JULY SESSION, 1997 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9604- CC-00174 ) Appellee, ) ) ) MARION COUNTY VS. ) ) HON . THOM AS W. G RAHAM CHARLES HA MLIN, ) JUDGE ) Appe llant. ) (Direct Appeal - First Degree M urder; ) Voluntary Man slaughter)

FOR THE APPELLANT : FOR THE APPELLEE : WIL LIAM H . ORT WE IN JOHN KNOX WALKUP Ortwe in & As soci ates , P. C. Attorney Generaland Reporter 723 McCallie Avenue Chattanooga, TN 37403-0016 KAREN M. YACUZZO Assistant Attorney General WILLIAM C. KI LLIAN 450 James Robertson Parkway No. I Oak Avenue Nashvill e,TN 37243 Jasper, TN 37347 J. MI CHAEL TAY LOR Distri ct Attorney General STE VE ST RAIN Assistant Distri ct Attorney Jasper, TN 37347
OPINION FILED ________________________ AFFIRMED IN PART; AND MODIFIED I N PART; REMANDED FOR RESENTENCING JERRY L . SMI TH, J UDGE-2- 

## OPINION

On May 19 , 199 5, a Ma rion County jury convicted Appellant Char les Ham lin of one count of first deg ree murd er and one count of voluntary manslau ghter. On June 29, 1995, the tri al court i mposed concurrent sentences of lif e imprisonment for the fir st degree murder convict ion and seven year s and six months for th e voluntary m anslau ghter co nviction. Appe llant ch alleng es his convictions, r

aising the fol lowing issues: 1) whether the ev idence was suff icient to support Appel lant’s convicti on for first degree mu rder; 2) whether the State prevented Appellant f rom having a fair t rial by faili ng to discl ose exculpatory evidence; 3) wheth er the Sta te enga ged in pr osecu torial misc onduc t; 4) whetherthe tri al court erred when it fai led to examine the State’ s fil e for any un disclo sed e xculpa tory m aterial; 5) whet her the trial court erre d when it allowed a witness fo r the State to testif y about the ef

fects of methamphetamine use; and 6) whethe r the trial cou rt erred when it ruled th at a gu n and a boo t could not be admitted into evi dence. After a review of

the record, we affirm the jud gmen t of the trial cou rt in part, modi fy the convic

tion of first degr

ee murder to second degr ee murder an d remand this case to the trial court for re- sentencing on the convic tion of s econd degree m urder.

I. FA CTS
ClayHaynes testi fied that on the morning of

February 19, 1994, Glenn Wallace, Jr., yelled at him for wavi ng to his wife , Sa ndy Wall ace. A sho rtti me later, Haynes drove to his fa ther’s h ome , place d two g uns in his truck, and drove to the home ofGlenn Wa llace, Jr. Wh en he arrived , Hayn es pick ed up one o f his-3-

guns, got out of his truck , and chall enge d G lenn Wallace, Jr. , to a fi ght. When he saw that Glen n W allace, Jr., was una rmed, Ha yn es put his g un ba ck in his trucka nd then he and Glenn W allace, Jr. , began fighting. As Haynes b ega n beating Glenn Wallace, Jr. , Glenn Wallace, Sr., arriv ed an d told Haynes to stop. Haynes then heard a gunshotand he saw Glenn Wallace, Sr. , fallto the ground. Haynes heard some more gunshots, s aw Glenn Wallace, Jr. , lyi ng on the ground, and saw Appellant standing a few feetaway. At t his point , Haynes fl ed the scene in his truck.
Christy Haynes testi fied that she was at her gr

andfather’ s house when her f ather, Cl ay Haynes, took two guns out of the house and put them in his truck. ClayHaynes then tol d Christy Hay nes that he was upset over something that Glenn W allace, Jr., had don e earlier that morning. When Clay Haynes dr ov e away, Christy Hayn es ca lled Ap pellan t and to ld him that she was wor ried about herfather because he was taking some guns with him to confront Gl enn Wallace, Jr. She aske d Appellant to m ake sure tha t nothing happ ened to he r father, and Appellant ass ured her that her father

would be safe.
Appellant

testi fied that h e was working on a t ruck in hi s yard when he heard his da ughte r, San dy W allace , yell for him to help her remove her chil dren from the hom e of Glen n W allace, J r. Ap pellant then walked over to Glenn Wallace, Jr.’s home and sa w Glen n W allace, Jr., figh ting with C lay Hayn es. At this point, Glenn W allace, Sr., approa ched Ap pellant and told him to leave because the fight

was not his concern. Appell ant testified that he then shot Glenn Wa llace, Sr., when he po inted h is gun at App ellant a nd thre atene d to kill him. Appellant al so testi fied that he shot Glenn Wallace, Jr., when he yelled and-4-

began running i n his dir ection. Appellant

adm itted tha t Glen n W allace , Jr., did not have any weapons in his hand when Appell ant shot hi m. Appellant testified that he carried a l oaded gun with him at all ti mes.
Appellant

was convicted of voluntary manslaughter for the ki lling of Glenn Wa llace, Sr., and first degree murder for the killing of Glenn W allace, Jr.

II.SUFFICI ENCY OF THE EVI DENCE
Appellant

conten ds th at the e videnc e was insuffic ient to s uppo rt his convicti on for the first degree m urder of Glenn W allace, Jr. Specifically, Appellant

contends that

the evidence was insuff icient bec ause there was no proof that the k illi ng was committed wit h premeditati on and deliber ation. We agree.

When an appellant

challenges t he suffi ciency of the evidence, this C ourt is obliged to review that chal lenge according to certai n well-settl ed principles. A verdictof guil ty by th e jury, approved by t he trialjudge, accr edits th e testimony of the State ’s witness es and resolves all conflicts in the testimony in favor of the State. State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994). Alt hough an accused is originally cloaked with a p resump tion of innocenc e, a jury verdictremo ves this presumption and replaces it with one o f guilt. State v. Tug gle , 639 S.W.2d 913, 914 (Tenn . 1982). H ence, o n appe al, the burd en of pro of rests with Appell ant to de mons trate the insufficie ncy of the convicting evidenc e. Id. On appeal, “t he [S]tate is enti tled to the s trongest l eg itimate view of th e evide nce a s well a s all
reaso nable and legitimate inferences that m ay be drawn therefrom.” Id. Wh ere the suffic iency of t he evidence i s contested on appeal, t he relevant question for1 A 1995 ame ndm ent elim inated de liberation as an elem ent of first de gree m urder. See Tenn. Code Ann. § 39-13-202(a)(1) (Supp.1998) (“Fi rst degree murder is: A premeditated and intentional ki lli ng of another.”). -5- the reviewi ng cou rt is wheth er any rat ional trier of f act could have found the accused guilty

of every e lement of t he o ffe nse be yond a re asona ble dou bt. Jackson v. Virgin ia , 443 U. S. 307, 319, 99S. Ct . 2781, 2789, 61 L. Ed. 2d 560 (1979). In conducti ng ou r evalu ation o f the co nvicting eviden ce, this Cour t is precluded from reweighi ng orreconsideri ng the evide nce. State v. Morgan , 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996). Moreover, t his Court may not substitute its ow n inferen ces “for t hose drawn by the t rier of fact fr om circumstant ial evidence.” Id. at 779. Fi nally, Rule 13(e) of the Tennessee Rules of Appellate Pr

ocedure provi des, “fi ndings of guilt in cri minal acti ons whether by the trialcourt or

jury shal l be set asi de if the evidence is insuffi cient to

support the findings b y the trier of fac t beyond a reaso nable d oubt.”

Wh en Gle nn Wallace, Jr., was kill ed in 1994, Tennessee’ s first degree murder statute p rovided tha t “[f]irst de gree m urder is: [a]n in tention al, premeditatedand de li berate kil li ng of anot her. ” Te nn . Code Ann. § 39-13-2 02 (19 93). 1 Premeditati on requires a showing of a previously formed de sign o r intent to kill. S tate v. West , 844 S.W.2d 144, 147 (Tenn. 19 92). Deli beration requiresthat the of

fense be committed with cool purpose, free of t he passions of the mom ent. Id. Delibe ratio n also requires “some period of reflecti on, during which the mind is free fr om the influence of exci tement.” St ate v. Brown , 836 S.W.2d 530, 538 (Tenn. 19 92). Preme ditation and delibe ration are determinati ons for the j ury and may be inferred from the manner and circumstancesof the killing. State v. Bord is , 90 5 S. W.2d 2 14, 222 (Ten n. C ri m. App. 19 95). How ever, a jury m ay not en gage in specu lation. Id.-6- This Court has previ ously recogni zed the nature of proof whi ch must be presented befor

e a jury may pr

operly i nfer eit her deliber ation or pr

emeditation : (1) facts about

how and what the defendant di d prior to the actualkill ing which show he was engaged in activity di rected toward the kil ling, that is, planning activity; (2) facts abo ut the d efendant’s prior r elations hip and conduct with the victi m from which motive may be inferr ed; and (3) factsabout t he nature of thekill ing fr om wh ich it may be inferr ed that the manner of killing was so part icular and exact ing t hat the defend ant must h ave inten tionally killed ac cording to a preco nceived design. State v. Schafer , 973 S.W.2d 269, 273 (Ten n. C ri m. App. 1997) (ci ting State v. Gentry , 881 S.W .2d 1, 4–5 (Tenn . Crim. A pp. 199 3)).

In this case, the State failed to intr od uce any evidence establi shing the ele me nts of p remeditati on and deliber ation. Fi rst, t here was absolutely no evidence that Ap pella nt had pla nned to kil l Glenn Wallace, Jr ., or t hat he engaged in any activity t o further

that plan . Ther e was also no proof that Appe lla nt kill ed with a “co ol purpose” or that he had any time between hi s decision to kil l and the act of kil ling during which he could ref lect on hi s decision. The State’s only argumenton appea l is that the jury could have inferr ed that after he received t he telephone cal l from Christy Haynes about the f ight between Cl ay Haynes and Glenn Wallace, Jr. , Appellant dispassionately went to the scene of the fight for the purpose of killing Glenn W allace, Jr. Wh ile this theory may ha ve been t rue, it remains only a theo ry becau se the S tate failed to s upport it with evidence. Wh ile the jury may have speculated that the State’s t heory was tr ue, specu lation is not a substitute for proof. West , 844 S.W .2d at 148
.

In ad dition, the S tate failed to in troduce any evide nce ab out App ellant’ s relation ship with Glenn Wallace, Jr., t hat establ ished a motive for the ki lling.2 “Voluntar y manslaughter is the int entional or knowing kil ling of

another i n a state of passion produced by adequate pro vocation sufficient to lead a reasonable person to act in an irrational manner.” Tenn. Code A nn. § 39-13-211(a) (1997). -7- Although there w as so me e videnc e that A ppella nt’s dau ghter and Glenn Wallace, Jr., had been experiencing some marital diff iculties, there was no evidence t hat Appellant

himself had e xperienced a ny problem s with Glenn W allace, Jr. Further, the State di d not introduce any facts a bout the natur e of the ki lling from which the jury c ould have infer red that Appel lant had i ntentional ly kil led according to a preconceiveddesign. I n fact, no ne of the State’s witn esses testified that they had even seen the act ual kil ling of Glenn Wallace, Jr., they only testified that they heard gunshots and then s aw Glen n Wal lace, Jr. , lyi ng on the ground and Appel lantstanding nearby. In deed, th e only evid ence p resente d by the S tate about the natur e of the killing was evid ence th at Glenn Wa llace, Jr., had died from a single gunsh ot wound to the head. This evidence does not establi sh either preme ditation or deliberation in an y way.

“The law in Tennessee has l ong recognized t hat once the homici de has been estab lished , it is presu med to be m urder in the seco nd deg ree. Th e state bears the burden of proof on the i ssue of premeditation and del iberati on suffi cient to elevate the offense to first-degre e murde r.” Brown , 836 S.W.2d at 543 (citation omitted). In thi s case, the State has simply failed to meet thi s burden and the presumption of second degree murder is the refore unrebu tted. There is ho wever, amp le evidence in the record to establ ish that Appellant knowingly shot and kill ed Glenn Wallace, Jr., without t he adeq u ate provocat ion requir ed to reduce t he convicti on to voluntary man slaughter. 2 Acco rdingly , we m odify A ppella nt’s convicti on to second degree murder and we remand this case to the trial court for resentencin g.-8- III . SUPPRESS ION OF EVI DENCE
Appe llant

c ontend s that he d id not rece ive a fair trial bec ause th e State suppresse d exculpatory evidence. Specifical ly, Appel lantclaims th at the Sta te withhe ld fourwitnes s state men ts and a lab re port tha t were fa vorab le to his defense.

In Brady v. Maryland , 373 U. S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (196 3), the United States Supreme Court held that the prosecuti on has a constit utional duty to furnish th e accu sed with exculpa tory eviden ce perta ining to either the accused’s guilt or innocence and the p otentialpunishmentthat may be imposed. Failure to revealexculpatory evi dence violates due process where the evidence is materia l either to guilt or pun ishme nt, irrespec tive of good faith or bad faith of the pros ecution. Id. 373 U.S. at 87 , 83 S. Ct. at 1196–97. The prosecutionmust also disclose evidence which may be used b y the defe nse to impeach a witness
. Giglio v. UnitedStates , 405 U.S. 150, 154–55, 92 S. Ct. 763, 766, 31 L .Ed . 2d 104 (1972); Workm an v. St ate , 868 S.W.2d 705, 709 (Tenn. Crim. App . 1993).

Before a reviewi ng court mayfind a due pr ocess viol ation under Brady , all of the fol lowing four

prerequisites must be sati sfied: 1) The defendant must have r equested the i nformation ( unless the e viden ce is obvious ly exculpa tory, in which case the State is bo und to release the inform ation whethe r requested o r not); 2) The State must havesuppressed the i nformation; 3) The informat ion must have been favorable to the accused; and 4) The informa tion mu st have b een m aterial.3 The record indi cates that both of these witnesses gave pr e-tri al statements in which t hey admitted that

they had i niti ally

failed to tel l the pol ice that Tony Wallace, Jr.,had taken a gun from the crime scene and hidden i ts existence from investi gators.

-9- State v. Evans , 838 S.W.2d 185 (Tenn. 1992). In Kyles v. Whitley , 514 U.S. 419, 434, 115 S. C t. 1555, 15 66, 131 L. Ed. 2d 490 (1995), t he United States Supr eme Court stated that indetermining whetherinformati on is materi al, “[ t]he question is not whet her the defendant would more likel y than not have received
a differ ent verdict

with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of co nfidence.”

A. Witness S tatemen ts
Appellant

conten ds that the State violated Bradywhen it failed to di sclose the pre-t rial st

atements of four witnesses . We disagree.
First, Appellant contends that the State v iolated Brady when it failed to disclose the pre-trial s tateme nt of W illiam Rap ier. However, Appell ant has failed to identify any p art of the rec ord that ind icates tha t R ap ier made any such statem ent, that the State p osse ssed the sta teme nt, or tha t it was th e leas t bit exculpatory. Indeed, the trial court specifically found tha t there was no proof t hat the State ever had any state ment fro m Ra pier that it failed to disclose
.
Second, Appellant con ten ds that th e State also violated Bradywhen it failedto disclose the pre-trial s tateme nts of Joyce Da vis and Ton y Wa llace, Jr. 3 Howeve r, Appella nt conce des tha t the State provid ed him with these statem ents during trial . This Court has previously stated t ha t “[i] f previ ously undis closed evidence is disclo sed d uring tria l, then no Bradyviolati on occurs unless prejudice-10-

results from the delayed disc losure.” State v. Jim Inman , No. 03C01- 9201- CR00020, 1993 WL 4833 21, at *9 (Ten n. Crim . App., Kno xvil le, Nov. 2 3, 1993) (citi ng United States v. Word , 806 F.2d 658, 665 (6th Cir . 1986)). Appellant h as failedto indi cate anythi ng that he could or woul d have done diff erently if he had known about these statements before trial . Indeed, the record indi cates that Appe llant’ s counsel revi ewed each statement and t horoughly cr oss-examined both witnesses about their pr e-tri al statements. Thus, Appel lant has not shown thathe was prejudi ced by discl osure of thes e statements during tri al as opposed to disc losure before trial.
Finally , Appellant

contends that

the State v iolated Bradywhen it failed to disclose a pre-tr ial state men t of San dy W alla ce in w hich she mentioned the
e xistence of another witness, Sherr y Dixson, abou t whom Appellant had n o previousknowledge. Appe ll ant is cor rect that the general rule is that the prosecutionhas “a duty t o disclose t he names and addresses of witnes ses who could exonera te the accu sed, corr oborate the ac cuse d’s po sition in asse rting his innocence, or possessed fav orable inf

ormation that would have enabled defense counsel to conduct f urther and possibly fruitful investigation.” State v. Mars hall , 845 S.W.2d 228, 233 (Tenn. Cri m. App. 1992). However , “[ t]he pro secu tion is not required to disclo se info rmatio n that th e acc used alread y poss esse s or is a ble to obtain.” Id. “Wh en excu lpato ry evidence i s equally availabl e to the prosecutionand the accused, the accused ‘must bear the respon si bility

of [his] failure to seek its discovery.’” Id. (citation om itted). In this case, the information contained in Sandy Wallace’ s statem ent was equally av ailable to b oth parties
. I ndeed, Sandy Wallace is Appellant’s daughter and she testi fied as a defens e witness at trial. There is absolu tely no indic ation that had A ppell ant as ked h is-11-

daughter whether

she knew of any

other wit nesses, she would have refused to disclose the na me o f Sher ry Dix son. Further, the record indica tes that Sherry Dixson lived i n the neighborh ood where the ki llings took place. Thus, Appellant could easily ha

ve identi fied her as

a possible witness and asked her whether she had seen o r heard anything on the day of t he killings. In short, because thi s informati on was equal ly avai lable to both Appellant

and the State, Appellant “must bea r the respons ibility of [his] failure to seek its discovery.” Id.
B. Lab Rep ort
Appellant

contend s that he did no t receive a fa ir trial becau se the S tate suppressed a lab report of tests performed on the shirt s thatGlenn Wa llace, Sr., was wearing when he was ki lled. We disagree.
Although the sequ ence of even ts con cernin g the la b repo rts is somewhat unclear, it appears that the trialcourt ori ginall y imposed a deadli ne of July 3 1, 1994, for the S ta te to prov ide Appellant with results of tests preformed on the victims. At that

time, theState noti fied Appell ant and the cour t that it could not predict when the Tennessee Bure au of In vestiga tion wo uld complete its testi ng and thu s, it could no t guaran tee disclo sure of the reports b y a certain d ate.

On Februa ry 1, 1995 , the T.B .I. reported the resu lts of its tests on the body of Glenn W allace, Sr. The results i ndicated t hat there was gun shot resi due on his hands and that he “could have f ired, handl ed, or [bee n] nea r a gun when it fired.” The se resu lts were inc luded in a stipulation th at was re ad to the ju ry.-12- On March 8, 1995, t he State notified Appe llant an d the court that it had submitted Glenn Wallace, Sr.’s shirts f or gunshot residue test i ng. The State indicated that it

had not submitted the shir ts earli er because it had not known that theywere in the po ssession of the localsheriff’s offi ce. Appell ant and thecourt both agreed that t he State had no t i ntentional ly wit hheld the evi dence, and the court info rmed Ap pellant that he coul d request a cont inuance if he needed additionaltime to revi ew the l ab resu lts when th ey were released . The T .B.I. released its report on May 3, 19 95. The test results indi cated that there was gunshot residue on bot h the shirt and undershirt

of Glenn Wa lla ce, Sr., but because of the a bsen ce of g unpo wder o r lead va por res idues , it was n ot pos sible to determine a muzzle-to-garment distance. These findi ngs were also included in the stipu lation that w as read to the jury.

The T.B.I. subs equently per formed additi onal test ing on the outer shirt of Glenn Wallace, Sr. This test revealed the “pr es enc e of particle s unique to gunshot primer re sidue.” T he T.B .I. agent who performed the test surmised that the pri me r residue h ad travel ed with the bullet a nd had been deposited onthe clothi ng upon im pact. The T. B.I. rep orted these test resul ts on July 7, 1995, appro xim ately two mo nths after A ppellant’s trial was co mplete d. The S tate provided Appella nt with a co py of the re port as so on as it rec eived it.

In its order denying A ppellant’s mo tion for a new trial, the trial court found thatthe State’s failure to provide Appellant with this third lab report before trial did not violate Brady . The trial court found that the State had not s uppressed eit her Glenn Wa llace, Sr.’s sh irts or the results of tests performed on those

shirts. The trialco urt als o foun d that, e ven as sum ing tha t the Sta te had supp resse d this-13-

evidence, there had been no showing that the evidence wa s either exculpatory
or materia l under the standa rds of Kyles . The trialcourt found that theevidence in the thir

d lab report was not

material be cause evidence t hat there was gun shot residue on the sh irt of Glenn Wa llace, Sr., was co mplete ly consiste nt with the lab
r eport that had been read to t he jury whi ch indicated that ther e was gunshot residue on the hands of Gl enn Wallace, Sr. Thus, t he trialcourt foundthat there
was no new evidence i n the thir d lab report

that suppor

ted Appe llant’ s claim of self defen se.

“The findi ngs of fact

and conclusions

of lawmade by the trial court after
an evidentiary hearing are afford ed the w eight of a ju ry verdict; this Court will not set aside the j udgm ent of the tri al court un less the ev idence contai ned in the record preponderatesagainst its findings.” State v. Dick , 872 S.W.2d 938, 943 (Tenn. Crim. App. 1993) (citat ion o mitted). Appella nt has faile d to identify anything in the record that pr eponderates agai nst the trial cou rt’s findings. W e agree with the tri al court that t he absence of the evi dence contained i n the third lab report di d no t deprive Appellant of “a tri al result ing in a ver dict wort hy of confiden ce.” Kyles , 514 U. S. at 434, 115 S. Ct. at 156 6. This iss ue has no me rit.

IV. PROSECUTORIA L MISCONDUCT
Appellant

contends that the State engaged in pr osecutorialmisconduct by withholdi ng the pre-t rial sta tements of Joyce Davis and Tony Wallace, J r., and the T.B.I. lab report

of July 7, 1995. We disagree.-14- This Court has stated thatin orde r to prev ail on a claim that prosecutori al misconduct denied the defendant of a fair t rial, the defendant is requi red to show thatthe misconduct was so i mproper that it “affected the verdict to his detrime nt.” State v. Gray , 960 S.W.2d 598, 609 (Tenn. Crim. App . 1997) (citation om itted). “In reviewi ng an allegat ion of i mproper con duct, this Court should consider several factors inc luding the intent of the prosec uto r, the c urative measures which were un dertake n by the c ourt, the imprope r conduct viewe d in context and in light of t he facts and circumstances of the ca s e, the cumulat ive effect of the [improper conduc

t] wit h any other er rors in t he record, andthe relative s trength or weakne ss of the case .” Id. (citation om itted).

In this case, Appellant has simply fai led to meet hi s burden of showing t hat he was prejudiced by the all eged miscon duct. As previous ly discuss ed, the S tate disclosed t he statements of Joyce Davis and Tony Wallace, Jr., to Appellant at trial and A ppellant’ s counsel vi gorously cr oss-examined both witnesses ab out th e statements. In additi on, Appellant was not prejudice d by the fa ilure of the S tate to disclose t he third T.B.I. lab report befo re trialbecause the repor t contai ned no exculpatory evidence that w as not already b efore the jury. This is sue is without merit.

V. FAILURE TO I NSPECT THE STATE’S FILE
Appellant

contends that

the trial c ourt er red wh en it failed to perfor m an in
camera inspecti on of the State’s fi le to determ ine whether it contai ned any undisclosed exculpator y material . Appellant

also clai ms that thetrial court erred when it fai led to have t he file sealed and preser ved for appeal . We disagree.-15- The record indicates t hat on Ju ne 23, 1995, one month after completi on of the trial, A ppella nt filed a motio n ask ing the court to order th e State to sub mit its file for inspec

tion. Although the trialcourt apparent ly deniedthis moti on, the record does not contai n an order to that effe ct. App ellant th en cla imed in his amended motion for a ne w trial tha t the trial c ourt er red in d enying his inspecti on motion. Followinga hearing on the motion for a new trial , the trial court issued
an order w hich st ated th at in regard to Appel lant’s request that

the court inspect t he State’ s fil e, Appellant “was not entitled to s uch extraor dinary relief an d [he had] presented no aut hority for that relief .” Alt hough the record contains a por tion of th e hearing o n the motion for a new tri al, it does not contai n the porti on that addre ssed this issu e. The refore , it is not pos sible for this C ourt to consider t he argum ents of counsel, any evidence pr esented, or t he reasoning of the trial cour t. “Absentthe necessary relevant material i n the record an appellate court cannot consider

the me rits of an issue.” State v. Ballard , 855 S.W.2d 557, 561 (Tenn. 1993) (citing Tenn. R . App. P. 24(b). A ppellant has failed to p roperly p reserv e this issu e for ap peal.

Howeve r, it appears

that even if thi s issue had not been waived, Appel lant would still not be en titled to relief . In State v. Caughron , 855 S.W.2d 526, 540–41 (Tenn. 1993), the Tennessee Supreme Court held t hat a t rial cour t had not abused its di scretion when it ref used to conduct an i n camera inspecti on of the State ’s file becau se the de fendan t h ad not asked the court to inspect

any particu larpie ce of evidence and there had been no pr oof that t he State had
c ommitted a ny Bradyviolations. S imilarly, there is no proo f that the Sta te violated its Brady duties in this case. In additio n, rather than asking the trial court to inspe ct a sp ecific piece of evidence, Appell ant likewiseasked the trial cour t to-16-

search the en tire file for a ny exc ulpato ry evide nce th at mig ht be in i t. Under these circumstances, the tri al court di d not abuse its di scretion when it decl ined to inspect t he State’s file and sealthe fil e forappellate review. This issuehas no merit.

VI. TESTIMONY ABOUT THE EFFECTS OF METHAMPHETA MINE USE
Appellant

contends that

the tri al court erred when it al lowed a witness for the State to testify about the effec ts of metham phetam ine on the hum an body. Howeve r, Appellant has failed to support t his conten tion wit h any argument or any ci tat ion to a uth ori ty . Th us, Appe ll ant haswai ved thi s i ssu e. T enn. Ct. Cri m. App. R . 10(b).

Notwithstanding Appellant’ s waiver of this i ssue, we conclude that even on the merits, A ppellant i s not e ntit led to rel ief. The r ecord indi cates that

Doctor Charles Harlan test ified ondirect ex amination t hat Glenn Wallace, Sr. , had 0.2 mic rog ramsof methamphetamine per mill iliter in his blood at the time of his dea th and that Glen n W allace, Jr., ha d 0.1 m icrogram s of me th a mphetamine per milli liter in his bl ood at the tim e of his deat h. Dr. Harl an then test ified that methamphetamine is som etime s use d to m ake a perso n mo re ale r t. Appell ant did not object to an y of this testimony.

On cross- exa mi nation, Dr . Harlan stated that although he had never treated anyone who had taken methamphetamine, he had conducted research regarding metha mphe tamine ’s effects on the hum an bod y. Appellant’ s counsel then went on to quest ion Dr. Harl an about the phys ical and ment al eff ects that4 This boot and gun wer e apparently found i n the home of Glenn Wallace, Jr. , some time after he was k illed. -17- methamphetamine use could have on aperson. When Dr. Harlan r eiterated on re-direct examination that methamphetamine is s ometimes used to make a person more a lert, Appellant’ s counsel objec ted, claiming t hat Dr. Harl an was not qualified to make that statem ent.

We conclude that

even if t he trialcourt err ed when it al lowed Dr. Harla n to testify about the ef

fects of methamphetamine use, it was harmless error because Appellant was not prejudice d by it. See Tenn. R . App. P. 36(b). Inde ed, Dr. Harlan had already given identical testimony w ithout objection. Furthe r, Appe llant’s own e xpert w itness , Docto r Chris Blevin s, testifie d that p eople in certain profes sions take m etham pheta mine in orde r to rem ain ale rt. Thu s, this issue ha s no m erit.

VII.EXCLUSION OF EVIDENCE
Appellant

contends that the t rial cour t erred when it rul ed that he coul d not introduce Glenn Wallace, Jr.’ s boot and a gun that was allegedl y found in t hat boot into evi dence. 4 Once again, h owev er, Ap pellan t has fa iled to s uppo rt this contentionwith any a rgume nt or any c itation to au thority. Thus, this issue is also waived. Tenn. Ct. Cri m. App. R. 10(b). In addi tion, des pi te the tria l court’s statementthat it wo uld allow Ap pellant to make on offer of proof, Appel lant fai led to include t he gun and the boot in t he record and al so fail ed to make any offer of proofas to why they were relevant. Thus, this C ourt has no basis up on whic h to review the tri al court’ s decision t hat this evidence shoul d not be admitted-18-

because it wa s simply not relevant

to any iss ue in the case. “Absent the
necessa ry relevant m aterial in the re cord an appellate court cannot consider

the merits of an issue.” Ballard , 855 S.W.2d at 561 (ci ting Tenn. R. Ap p. P. 24(b). Appe llant ha s failed to prop erly pre serve this issu e for ap peal.

VII I. CONCLUSI ON

Because we hold that the evidencewas insuffic ient to s uppo rt App ellant’s convicti on for fi rst degree murder , we modify hi s convict ion to second degr ee murder and we remand this case t o the tri al court for

resentenci ng. In al l other respects, the judgment of the tri al court i s affirmed.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ WILLI AM M. B ARKER, SPECI AL JUDGE