### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE STATE OF TENNESSEE v. LUTHER RAY DOTSON, JR.
Direct Appeal from the Circuit Court for Rhea County

No. 14146 J. Curtis Smith, Judge

No. E1999-00640-CCA-R3-CD - Dec ided May 3, 2000

The def endant, Luther Ray Dotson, appeals from his conviction by a jury for first degree murder. He contends that the evidence is insufficient, that the trial court erred by refusing to grant an ex parte hearing on his motion for an expert, that the trial court erred by limiting the testimony of his expert
on suicide, and that the trial court’s jury instruction on circumstantial evidence was improper. We hold that the evidence is sufficient; that although the trial court erred by not granting the defendant
an ex parte

hearing and by limiting his expert’s testimony, the errors were harmless; and that the trial court’s jury instruction was proper. We affirm the judgment of conviction.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed.

T IPTON , J., delivered the opinion of the court, in which W ELLES , J., joined. S MITH , J.,filed a concurring opinion.
R. Jeffery Harmon, Jasper, Tennessee, for the appellant, Luther Ray Dotson, Jr.

Paul G. Summers, Attorney Gene ral of Tennessee; Patricia C . Kusmann, Assistan t Attorney Gener

al; and James Michael Taylor, District Attorney General, for the appellee, State of Tennessee.

OPINION

The defendant, Luther Ray Dotson, Jr., appe als as of right foll

owing his conviction by a jury in the Rhea

County Circuit Court for first degree murder. The defendant received a sentence of life imprisonment in the c

ustody of the Depa

rtment of Correc

tion. He presents

the following issue

s: 1. whether the evidence is sufficient to support his conviction; 2. whether the trial c ourt erred by refusing to grant an ex parte hearing on the defendant’s motion for resources to hire an expert on suicide; 3. whether the trial court erred by not allowing the defe

ndant’s expert on

suicide to testify that the victim told others she had made previous suicide attempts; and 4. whether the trial court’s jury instruction on circumstantial evidence was improper.
We affirm the judgment of conviction.-2-

The defendant, who was forty-six at the time of the offense, was convicted of first degree murder for the shooting death of his live-in girlfriend, seventeen-year-old Crystal Braden. At trial, Charles Byrd, Chief Deputy of the Rhea County Sheriff’s Department, testified that he was dispatchedto the defendant’s house on December 8, 1995, at 3:45 a.m. He testified that when he arrived at 5:00 a.m., he saw a handgun lying on the kitchen table and pieces of a broken chair on the kitchen floor. He said he went into the defendant’s bedroom and found the victim’s body lying on
a piece of plastic with a plastic bag over her head. He said he secured the scene until Tennessee Bureau of Investigation (TBI) Agent David Emiren arrived.

Chief Deputy Byrd testified that he spoke with the defendant after the defendant had been read his rights and plac

ed in the back of a patrol car. He said he took notes detailing the defendant’s statement. The sta

tement, which was

read into evidenc

e, provides as fo

llows: It was around 2:30 this morning. I remember the time, because

Married with Childr en was on. Me and Crystal had been reading the Bible. I’d been telling her what she was doing

wrong. I’d been

whipping her for i

t. I whipped her la

st night.

I walked out to

the mailbox to get the paper. I heard the paper man when he brought the paper, that was about 30 minutes earlier, but when Married wit

h Children
came on I walked out to get the paper. About hal fway to t he box I heard a shot. I turned aroundand started to go ba ck in to see what happened, but I thought Crystal
was just f***ing with me, so I went on and got the paper. When I came back in I saw Crystal lying with her headacross the right arm of the chair with her right leg under her in the living room where the round t able is. I could he

ar something like a

ir spewing or blowing. The blo od was running in the

floor [and] abou

t a half circle of puddle was in the floor to the right of the chair. The gun was lying about a foot away from her left foot betweenthe round table. I picked up the gun and wiped it off then I ejected the hull and laid it on the kitchen table. I c

leaned her up, pu

t her clothes in
a sack. They were messy. I was afraid to call the law. I knew they w

ould think I did it. I took the chair apar

t. I put a pl astic bag over her head to keep from dragging blood all through the house. I put her on the plastic and thought about getting rid of her. I made two or

three cups of coffee while I was tearing the chair up. My dad was in bed. He got up and came in there. I told him he needed to leave the house. I have washedmy hands numerous times. It was like a dream. I loved her. She lived here since March, I think. We wer e havi ng a sexual relationship. The Bible was laying
on the table. After this happened I went back out the front door

to get some fresh air. I don’t think daddy saw her. I stood between her and daddy and told him to go on and he left. Lately

I’ve been physical with her a little ever [sic] night. At first I was hitting her in the face and head. I was hitting her in the stom ach, but I quit doing that. Mainly had been pi

nching her ears

and titties. Also pinched her stomach. She would squeal. Daddy would - - could hear - - daddy couldn’t hear. He was always in his room and this wou

ld always happen in the bedroom. Daddy hardly ever ca

me out of his room . . . . The last time we had sex was night be fore last. I think about five different guys had

been coming around and beating on the doors and windo

ws. I watched Crystal close so she couldn’t get out. I never really c augh t her with-3-

anyone. She ju st told me ab out it. Tony Galvin, Jamie Goins . . . and someone named Jim.

The gun was a nine millimeter and it’s mine. I didn’t kill her. She’s right handed I think. She shot herself in the left side of the head. That’s strange.
. . . . I wasn’t going to kill her, but I had been planning to kill Tony Galvin.

Chief Deputy Byrd testified that according to his notes, the defendant stat ed that th e victim shot herself in the living room and that he took her to his bedroom and placed her on plastic. He said that he had previously stapled a curtain over the doorway so the victim could not leave the room without him knowing. He stated that the victim had been thinking about shooting herself and had handled guns before. The def

endant iterated

th at he pinched the victim ’s ears and that t

hey were badly swollen. He stated, “I don’t f eel nothing right no

w, love or anything . I can’t say I wa nted to kill

her. She made me angry. I wasn’t proud of hurting her.” Chief Dep uty Byrd testified that he did not allow the defendant to r

ead the statemen

t o r m ake corrections. He said he tested the defendant’s hands for gunshot residue and gave the test kit to Agent Emiren.
Agent David Emiren of the TBI testified that he arrived at the defendant’s house around 7:00
a.m. He said he saw a large sheet of plastic stapled to the t op of a dresser in the defendant’s bedroom. He said t

he plastic hung dow

n to the floor and e

xtended underne

aththe victim’s body. He said another sheet of plastic covered most of the victim’s body. He testified that he f ound the victim’s clothes in a grocery bag, a .9 millimeter pistol, and a dismantled chair in the kitchen. He said that the cushions f

rom the chair wer

e in garbage bags. Agent Emiren testified that he found a bullethole in the living room wall that extended through the wall and into the adjoining storage
room. He said that in the s torage room,

the bullet passed through a paperback book on a shelf, through a lampshade and onto the floor. He testified that he found an expended cartr

idge hull under the couch cushions in the living room. He said he found rags used to wipe up blood in a plastic bag in the kitchen. He sa

id that later that a

fternoon, he fou

nd th at day’s newspape r with blood on it tucked between the mattress and box springs in the defendant’s bed.
Agent Emiren testified that he took a statement from the defendant on December 8 at 10:13
a.m. The defendant st

ated that he met the

victim when they bo

th worked at a pro

duce stand. He sa

id the victim moved in with h im and his father, and he and the victim began a sexual relationship. He said that he suspected the victim of having sex with other men in his house while

he was asleep and that the victim had told him she was sleeping with Tony Galvin, a neighbor. He said the victim once told him that she was going to leave, and he told her that if he caught her living with another man, he would kill them both. He said that a few weeks before the shooting, he asked the victim to set up Tony Galvin so he could “get him out of the way.” He stated that the night before the shooting, he suspected the victim of having sex with another man, and he checked

between her legs to see if she had been having sex. He admitted hitting the victim in the stomach and pinching her stomach, breasts, and ea

rs. He also admitte

d biting her sever

al times.

In his statement,

the defendant sa

id that on the night of the shooting, he and the victim were-4-

reading the Bible, and he told her that she was evil and was ma king him do evil things. He said that when he went outside to

get the newspaper, he heard a gunshot and the sound of a gun hitting the floor. He said that when he returned, he saw that the victim had shot herself. He said his dad got outof bed, but he kept him from leaving. He said he did not want to call the police because

they would suspect him of killin

g her and would put

him in jail

for life. He stated that he would “get rid of the body and then play the g ame with you all.I wanted time to take care of those guys that caused all these problems.” He said he stapled plastic to the walls of his bedroom, carried the victim to the bedroom, and placed her on the plastic. The defendant stated that he made coffee, cleaned up the living room floor, and took apart the chair. He said that he eventually let his dad leave the house.
Agent Emiren testified t

hat the chair in wh

ich the victim died h

ad been in

the living room, facing the television. He testified that the bullet hole in the wall shows that the bullet traveled at an upward angle.
Coeare Jenkinson testified that she lives in Michigan and had been friends with the victim for many years. She te

stified that the vic

tim moved toTennessee from Michigan in October 1994 to live with her fa

ther. She said

she kept in contac

t with the victim duri

ng this time. She testified that the victim

visited her in Michigan in the spring of 1995 and seemed very happy. She said she visited the victim in Tennesse e in August

for a week and st

ayed with the victi

m and the defenda

nt. She said that when she was alone with the victim, the victim would be happy and talkative, but when the defendant wa

s around, the victi

m was nervous. Ms. Jenkinson testified that the defendant had
a handgun that he cl

eaned every da

y and kept with him a

t all times. She said that she never saw the victim touch a gun and t hat once, the defendant asked the victim to bring him his gun, but she refused. She said the defendant told her that the victim would not use the gun.

Ms. Jenkinson testified that the defe ndant and v ictim often argued and that the defendant accused the victim of cheating on him. She said the defendant once accused the victim of cheating
on him with someone from Michigan when his phone bill revealed a telephone call to Michigan. She said the defe ndant stated that he was a “devil slayer” and that he could see the devil in the victim. Ms. Jenkinson said she a sked the defendan t if he was going to kill the victim, and the defendant replied that he had no reason to kill her at tha t time. She said he stated that he was not afraid to kill either her or

the victim. She testi

fied that if anyon

e pulled into the dr

iveway, the victim would stay in the house. She said the victim was not allowed to go outside when someonevisited and could not talk to other men.

Ms. Jenkinson testified that when the defendant was gone the next day, the victim told her she was afraid the defendant was going to kill her. Ms. Jenkinson testified that when she returned to Michigan, she ca

lled the victim thre

e to four times eac

h day. She said the d

efendant would answer, pretend to be his father, and say that the defendant and victim were out.

Ms. Jenkinson testified that the victim’s parents divorced when the victim was around eleven
or twelve. She stated that occasionally, the victim seemed depressed. She said that when she visited-5-

the victim, she noticed that the victim had not been caring for her appearance as she had previously.
Dr. Charles Harlan, Chief Medical Examiner for Tennessee, testified that he performed an autopsy on the victim’s body at 9:00 p.m. on December 8. He testified that the victim died from a contact gunshot wound that entered in the r ight temporal area of her head and exited in the left temporal area. He stated that the exit wound is about one-half inch higher than the entry wound. He testified that the victim had a cigarette burn and a partial bite mark on her left breast and that she had
numerous brown-yellow and green bruises on both breasts that appeared to be four to five days old. He testified that the victim had similar bruises on her abdomen, scars or scabs on her left thigh, and
a large bruise on th

e back of he r right hand. Dr. Harlan testified that some of the bruises were consistent with the victim being punched. He said that no alcoho l or drugs were detected in the victim. He testified that the victim had fatty liver disease which could be caused by alcohol abuse. He said the victim also had an inf lamed thyroid gland which could affect one’s emotional and psychological well-being.
Special Agent James Davis , II, a forensic scientist with

the TBI Crime Laboratory, testified that he analyzed the gunshot residue tests performed on the defendant and the victim and that

both
were inconclusive. He said that he has previously test-fired guns like the one used in this case and that they typically leave gunshot residue when fired. He said he would gene

rallyexpect the shooter to have residue on his or her hands and would also expect to find residue on the victim if he or she
were close to the shooter. He noted that washing one’s hands numer

ous times would

affect the test results. He testified that he did not check the defendant’s shirt for residue.
Agent Steve Scott, with th

e firearms identification section of the TBI Crime Laboratory, testified that

he examined the .9 millimeter pistol, its magazine, the live ammunition recovered, one firedbullet, and one fired cartr idge case. He sa

id that if one imagined shooting the gun at the twelve o’clock position on a clock, the cartridge case would eject to about the three o’clock position, traveling four to five feet away from the gu n . He testified that the cartridge case and bullet he analyzed were fired from the defendant’s gun.
Tony Galvin testified that he lives across the road from the defenda

nt. He stated that he had been to the defendant’s house several times about two to three months before the shooting to make
a car payment to the defendant’s father. He said that he saw only the defendant’s father and that he
never saw a female when he was there. He said that on the night of the shooting, he got home from work late, fed his dogs and went to bed. He said that sometime a fter midnight, he h

eard a gunshot. He said he looked outside his window, did not see anything, and went to bed. He said he could not
see the defendant’s

house from his bedroom window. He said that around 3:00 a.m., about fifteen or twenty minutes after the gunshot, he heard the defendant’s father drive away.

The defendant testified that he met the victim when they worked together at a pro duce market. He said that e

ventually the victim moved in with him and that she was “up and down,” sometimes happy, sometimes depressed. He testified that the victim had talked about suicide and that one night, she had a gun in her hand and said she considered shooting herself. He said he did not think she was serious.-6-

The defendant testified that he suspected

the victim of seeing other men and that he accused her of having sex with

Tony Galvin

and Jamie Goins. He

said the thought of h

er bringing men int

o his house made him

angry. He admitted that he hit the victim, slapped her on the head, and hit and punchedher on the stomach and breasts. He said he pinched the vi ctim’s ears enough to be come swollen. He admitted that he bit the victim. The d

efendant admitte

d telling th

e vi ctim that if he caught her with another man, he would kill them both, and he admitted asking the victim to set up Tony Galvin so he could kill him.

The defendant testified that the victim had her own .32 caliber pistol but that he had hidden it from her in the coffee table. He said the victim had shot her pistol before and had cocked his .9 millimetergun. He testified that on the night of the shooting, he returned from getting the paper to find the victim sitting toward the television with her right leg underneath her and his gun by her left foot. He said he di

d not think to summon he lp because

she was dead. He

said his father told him to call the police, but he told his father to go back to bed. He said that for t he next hour, he ju st stood around. He said h

e then went to

his father’s bed

room, and his

father asked him if he shot the victim. He said he told his f ather that she sho

t herself. He sai

d he did not

want to let his father go to the police because

he was concern

ed about his fathe

r’s driving. He a

greed that he let

his father leave only because his

father promised

that he would go to hi

s daughter’s house

and would not tell her what happened.

The defendant testified that heread the notes Chief De

puty Byrd made aft

er talking with him butthat he was not allowed to correct them. He said the notes were fairly accurate. He admitted that he was convicted of robbery, served time in jail, and was released in 1992. He denied shooting the victim.

Luther

Dotson, Sr., the defendant’s father, testified that the defendant and the victim seemed to get along well. He said that on the evening of the shooting, the defendant appeared normal and
was not angry. Mr. Dots

on testified that he

went to bed around

10:00 p.m. and that his bed is agai nst
a window at the fron

t of the house. He s

aid that looking out h

is window, one can see the front yard and the mailbox. He testified that he was awakened by a gunshot around 2:00 a.m. He said he stayed in b ed for a few seconds, then raised up and looked out the window. He said he saw the defendant walking towardthe house from the mailbox. He said he lay bac k down then went to h

is bedroom door. He said

the defendant told him that everything was fine. He said that from his door, he could see the back of the victim and that she was sitting in a chair in the living room facing the kitchen. He said he went back to his room, and the defendant came back and said the victim had shotherself. He test

ified that the def

endant told him not to

call the authoriti

es because they

would think the defendant had shot the victim. He said he did not call the police because he was afraid the defendant would harm himself. He said the defendant never prevented him from leaving. He

testified that wh en he left, he told the defendant he was going to his daughter’s house but that he immediately went to the sheriff’s department.

Mr. Dotson said he did not remember testifying at the preliminary hearing that he hadnever seen the victim shoot a gun. He said he never saw the defendant abuse the victim and never heard-7-

her scream. He said the defendant and victim were a

lways happy and we

re inseparable . He said

that after the shooting, he might have told someone at the sheriff’s department that if the defendant shot the victim, the defendant had plenty of time to get outside before he (Mr. Dotson) loo ked out his window. Mr. Dotson denied a sking the defenda

nt if he shot the victim. He admitted that when he went to the sheriff’s department, he gave a statement in whic

h he said he did ask

the defendant if he shotthe victim, but he said he just wanted the officer to leave and to check on the defendant. Mr. Dotson denied saying tha t he was afraid o

f the defendant.

He said that his

memory was better

now than it was immediately after the shooting because he was upset then. He identified a swo r n statement that he gave to Agent E miren in which he sa

id that he tried to c

all the police fro

m his house but that the defendant continually checked on him.
Tiffany May testified that she is sixteen and that the defendant is a friend of her stepfather. She testified that

sometimes the victim

would come to her h

ouse with the defe

ndant. She stated that the victim once said that when she was upset, she felt like hurting herself. She said she did not know if the victim was ref

erring to when the

victim lived in Michig

an with her mother

. She said the victim
never seemedafrai d of the defenda nt. Ms. May’s sister

, Stephanie, testif

ied that when the v

ictim talked about hurting herself, she was referring to the time when she lived with her mother.

Dr. Rodney Fowler testified that he is a profess or at The University of Tennessee at Chattanooga

and is a licensed professional counselor. He testified that he t

eaches a gradu

ate course calledCrisis Counsel and Suicidology. He testified that peopl e who attempt or commit suicide generally have three common traits: (1) inimicality, in which the person feels friendless and full of self-hate; (2) constriction, in which the person is very focused on t heir own pro blems; and (3) perturbation, in which the person faces unendurable psychological pain that they cannot escape. Dr. Fowler testified that the

person must then ha

ve a triggering de

vice to make them w

ant to commit suicide.

Dr. Fowler testified that if someone has already died, he can conduc t a “psychological autopsy” to deter min e if the individual possessed suicide risk factors. Dr. Fowler stated that the following were risk facto rs: depression, lo

w self-esteem, p

reoccupation wi

th death, withdra

wal, frequent in-depth discussions of suicide, alcohol use, and personal loss. He testified that people who
are depressed often

do not take care

of their appear

ance. He also te

sti f ied that promiscuity and tattooing are forms of self-punishment and self-injury.

Dr. Fowler testified th

at he spoke with the

defendant,

the defendant’s sister, Stephanie May, Tiffany May, and Tina Dotson. He said that he learned from these people that the victim exhibited
some of the aforementioned risk factors. He said the victim’s parents had divorced, and she had an unhappy family situation. He said she had stopped taking care of her appearance, was isolated, had tattoos, and thought of killin g herself when sh

e became angry. He testifi

ed that she was at

risk for suicide.

Dr. Fowler admitted that suicidology is a new field and that no state licensing or regulation exists. He said that he onl y spoke briefly wi

th the people he interviewed and that he had no way of knowing if they were telling the truth. Hesaid he did not read the defe

ndant’s statemen

ts and did-8-

notinterview the defendant’s father. He said he was not informed that the victim was smiling and acting normally a few hours before her death.

Thomas Dobson, a land surveyor, testified that he i nterviewed the defendant’s father regarding the layout of the house on December 8. He said Mr. Dotson showed him the locationof the bullet hole in the wa

ll and explained how the furniture in the living room and storage room had been arranged at the time of the shooting. Mr. Dobson said that based on his projections, the bullet hole in the wall was located four feet, nine inches from the ground, a nd the chair in whi

ch the victim had been sitting when she was shot was two feet, nine inches from the ground. He acknowledged that the actual chair in which the victim had been sitting was not at the Dotson house when he made his calculations. He stated he had to use a differe

nt chair that Mr. D

otson provided as a

replacement. Mr. Dobson said he was told that the chairs were very similar. He admitted that he relied upon Mr. Dotson’s placement of the chair in the living room and the lampshade in the storage room and that if the objects wer

e a few inches of

f, this could slightly

throw off his conc

lusions.

The s tate a nd the defendant stipulated that the newspaper carrier would testify that he generally delivered the defendant’s paper between 1:30 and 2:00 a.m. Based upon the foregoing proof, the jury convicted the defendant of first degree murder.

I. SUFFICIENCY OF THE EVIDENCE The defendant contends that the evidence is insufficient to support his conviction, asserting that the state failed to prove premeditation and del ibe ration. The state contends that the evidence is sufficient.

Our standard of review when the sufficiency of the evidence i s question ed on appeal is “whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have found the essentialelements of the crime beyond a reasonable doubt.” Jackson
v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that we do not reweigh the evidence but presume that th e jury has resolve

d all conflicts i

n the testimon y and drawn all reasonable

inferences from the evidence in favor of the state. See State v. Sheff ie ld , 676 S.W.2d 542, 547 (Tenn. 198

4); State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).
Initially, the defendant argues that the state was required to prove deliberation. Before July 1, 1995, first degree murder was defined as the intentional, premeditated and deliberate killing of another. Tenn. Code Ann. § 39-13-202(a)(1) (amended 1995). The statute was amended, effective July 1, 1995, to remove the element of deliberation. Tenn. Code Ann. § 39-13 -202(a)(1) (1996). The offense in the pr

esent case occ

urred in Decemb

er 1995. Thus, the

state was not requ

ired to prove deliberation, and the trial court did not instruct the jury on the sepa

rate element of deliberation. However, the indictment cha rged the defend

ant with the intentio

nal, premeditate

d and deliberate killing of the vi ctim, and the defendant contends that the state was required to prove deliberation because it was in

cluded in the indic

tment.

This court addressed a

similar issue in State v. Hopper , 695 S.W.2d 530, 535 (Tenn. Crim. App. 1985). In that case, the defendant was convicted of felony murder upon an indictment alleging1 We note that even tho ugh the state was n ot required to pro ve the dist inct e lement of deliberat ion, the tri

al court’s instructi

on to the jury that a premeditated act i s one done aft er the exer cise of r eflect ion and judgment encompasses t

he general conc

ept of deli

beration as set forth in p rior case law

. See Stat e v. B rown , 836 S.W.2d 530, 539, 543 (Tenn. 199 2).
-9- that the killing was done “wilfully, deliberately and malici ously” during the perpetration of a robbery. Id. The defendant argued that although a felony murder conviction does not require proof of deliberation, the state was required to prove that element, having alleged it in the indictment. The court disagreed, holding that the allegation of deliberation “was mere surplusage and could not have misled the defendant in any manner.” Id. We believe that the same is true in the instant case. We further note that our criminal code provides that defendants “shall be prosecuted under the act or statute in effect at the time of the commission of the offense.” Tenn. Code Ann. § 39-11-112. Under the statute in effect at the time of the offen s e in the present case, the state need not prove deliberation. 1

The defendant conte

nds that the eviden

ce is insufficien

t to support his c

onvi ction for first degree murder because the state failed to

prove premeditation. A premeditated act is one “done after the exercise of reflection and judgment. ‘Premeditation’ means that the intent

to kill must have been formedprior to

the act itself. It is not necessary that the purpose to kill pre-exist in the mind of the accused for any definite

period of time.” T

enn. Code Ann. § 39- 13-202(d). Furth ermo re, the element of premeditation is a question for the jury and may be established by pr oo f of the circumstances surrounding the killing. State v. Bland , 958 S.W.2 d 6 51, 660 (Tenn. 1997). Our supreme court has delineated th

e following facto

rs that demonstrat

e the existence of premeditation: the use of a deadly weapon

upon an unarmed vi

ctim, the particular cruelty of the killing, declarations by the defendant of an intent to kill, evidence of procurement of a weapon, preparations before the killing for concealment of the crime, and calmness immediately after the killing. Id.
Viewing the evidence in the light most favorable to the state, we believe that the evidence is sufficient to support a finding that the def endant shot th

e victim with premeditation. First, the victim was unarmed when the defendant shot her. Second, the evidence showed that the defendant had made statements in

dicating an intent

to kill the victim. The defendant admi

tted that he threatened

to kill the victim if sh

e went to live with someone else, and the evidence showed that the victim was growing incre

asingly angry with

the victim becaus

e he believed she was cheating on him. Ms. Jenkinso n t estified that the defendant stated that he was not afraid to kill the victim. The evidence further shows that the d e fendant displayed calmness immediately after the killing. He picked up the gun, wiped it off, told his father everything was fine, moved the victim to hi s bedroom and placed her on plastic, made coffee, and continued to clean up the scene. These circumstances
are sufficient to supp

ort a findin

g beyond a reasona

ble doubt that the de

fendant acted w

ith premeditation.

II. EX PARTE HEARING The defendant contends that the trial court erred by refusing to grant an ex parte hearing on his motion for resources to hire an ex per t on suicide. He argues that Rule 13, Tenn. Sup. Ct. R., requires an ex parte

hearing and that by denying one, the trial court prejudiced him by alerting the-10-

state t o his d efense. The sta te contends that ex parte hearings are only necessary when the defendant’s mental state is likely to be significant to his defense. See Statev. Barnett , 909 S.W.2d 423, 428 (Tenn. 1995). Thus, it argues that thetrial court properly denied the defendant’s

request because he was not seeking

funds to hire an ex

pert to evaluate

hi s mental state. The state further contends that the hearing did not alert the state to the defendant’s defense because the defendant had always maintained that the victim committed suicide.
Rule 13, section 5(

a), Tenn. Sup. Ct. R. , provides, in per tinent part, as fo

llows: In the trial and dire

ct appeals of all

criminal cases in which

the defendant is entitled to appointed counsel and in the trial and appeals of post-convictio

n proceedings in capital cases, the cour

t in an ex parte hearing may in its discretion determine that investigative or

expert services or other similar services are necessary to ensure that the constitutional rights of the defendant are properly protected. (Emphasis

added). The plain language of the rule provides that an ex parte hearing with resp

ect to
a request for investigative or expert services is manda

tory. Furthermore

, the rule does not limit the hearing to those requests r elative to a defendant’s mental state. Rule 13 became ef fective on July 1, 19 97, a fter Barnett . Thus, the state’s reliance on Barnett as a limitation on ex parte hearings is misplaced. The rule plainly requires an ex parte hearing, and the trial court erred by not granting one to the defendant.
Nevertheless,

we believe the error to be harmless. Tenn. R. Crim. P. 52(a). Since the defendant was taken into custody, he has maintained that the victim shot herself. Furthermore, the state would have been entitled to discover the defendant’s expert and any do cuments or tangibl e objects and any results or reports of examinations or tests performed by the expert. Tenn. R. Crim. P. 16(b)(1). Thus, the defen dant has no t demonstrated that the state gained any unfair advantage from the trial court’s denial of an ex parte hearing.

III. LIMITATION OF EXPERT’S TESTIMONY The defendant contends that the trial court erred by not allowing Dr. Fowler to testify that the victim had told others that she had previously attempted suicide. He contends that the evidence
was admissible pursua

nt to Rule 703, Tenn. R. Evid., as a basis for Dr. Fowler’s opinion. The state contends that

the trial court properly excluded the evidence because of the possibility of misleading the jury. Tenn. R. Evid. 403.

The defendant sought to allow Dr. Fowler to testify that the defendant, his sister, the victim’s half-sister, and the May sisters told him that the victim had spoken of previous suicide attempts. In
an offer of proof, Dr. Fowler testified that regardless of whether or not the victim had actual l y attempted suicide before, the fact that she made the statements was an import ant risk facto

r for suicide. The tria

l court held that the

evidence was ina

dmissible, finding a

s follows: The probative value is, is that it’s a basis or one of the bases for his expert opinion. There are other

pieces of evidence upon which he could base his expert opinion. I think there’s a high risk that t he jury will misuse that evidence and that it may mislead the jury into accepting the statement as true. Now, I und erstand t hat the-11-

defense says we ’re not offerin g it for its truth, but I think

there’s a high pr

obability that the jury will use it for its truth and secondly, I think it has . . . l ittle probative value, so based on

403 analysis I’m go

ing to keep that tes

timony out.
Rule 703, Tenn. R. Ev

id., provides as fo

llows: The facts or data

in the particular case upon which an expert bases an opinion or inferencemay be those perceived by or made known to the expert at or before the hearing

. If of a type reasonably relied upon by exp

erts in the partic

ular field in forming opinions or inferences upon the subj ect, the facts or data need not be admissible

in evidence. The court shall disallow testimony in the form of anopinion or inference if

the underlying fa

cts or data indica

te a lack of trustw

orthiness.
According to the Advisory Com m ission Comment, “[i]f the bases of expert testimony are not independently

admissible, the trial judge should either prohibit the jury from hearing the foundation testimony or should deliver a cautionary instruction. Unfairl y pre judicial facts or data should be dealt with under Rule 403.”

We believe that the trial court erred by not allowing Dr. Fowler’s testimony. Dr. Fowler’s ultimate opinion that the vic

tim was at r

isk for suicide was based upon several factors. It was im portant for the jurors to k

now those factor

s to assist them in eva

luating the credi

bil ity of Dr

. Fowler’s opinion. See , e.g. , People v. Anderson , 495 N.E. 2d 485, 488-89 (Ill. 1986) (“Inasmuch
as the opinion based o

n . . . materials –

which are deemed

trustworthy by the profession – is allowed, it would be both illogical and anomalous to deprive the jury of the reasons supporting that opinion). According to Dr. Fowler, a “very impor tant” f actor in assessing the victim’s risk involved the victim’s previously stating that she had attem

pted suicide, reg

ardless of whether she actually had. Dr. Fo wler’s relia

nce upon the fac

tor as very importa

nt in assessing the v

ictim’s risk nece

ssarily shows that the evidence

is highly probative . Nevertheless, th e tr ial court determined that the
ev idence was of low probati ve value. In light o

f the expert’s te

stimony regarding

the im portanc e of the evide n ce in assessing the victim’s risk, we do not believe the trial court’s finding to be supported by the record. Also, any danger of concern to the trial court

regarding misleading the jury could have been avoide

d with a cautionary instruction that the testimony was not to be considered for its truth but rather as a

basis for Dr. Fowler’s opinion. See Baggett v. State , 220 Tenn. 592, 598, 421 S.W. 2d 629, 632 (1967) (holding that although trial courts generally enjoy discretion regarding the admissibili

ty of evid ence, such discr etion is not absolute

and may be overtu

rned on appeal if
ar bitrarily exercised); see also Tenn. R. Evid. 703, A dvisory Comm’n Commen ts; Be nson v

. Tennessee Valley Elec. Coop. , 868 S.W.2d 630, 641 (Ten n. Ct. App. 1993). In this respect, we believe that no material basis exists in the record to justify excluding the evidence under Rule 403, Tenn. R. Evid.
Nevertheless,

we believe that th

e error was har

mle ss. The ex pert witness was a llowed to testify concerning a significant number of facts and data upon which he based his opinion that the victim was a high risk for suicide, including facts that reflected upon the crucial issue of the victim’s state of mind. For example, Dr. Fowler testified th at the victim engag

ed in “self-injur

ious” behavior, that she spoke of wanting to commit suicide, and that “when she got mad she thought about killing-12-

herself. ” Under

these circumstances, the trial court’s error does not affirmatively appear to have affected the result of the trial on the merits. See Tenn. R. Crim. P. 52(a ). Considering the

whole record, we cannot say tha t the error more p

robably than not a

ffected the judg

ment in this case. See T.R.A.P. 36(b).

IV. JURY INSTRUCTION ON CIRCUMSTANTIAL EVIDENCE The defendant conte

nds that the trial c

our t erred by denying his requested instruction on circumstantial evidence and by giving an improper instruction. The state con tends t hat the trial court’s instruction was pr oper. Initially, w

e note that in crimi

nal cases, the tr

ial court has the d

uty to charge the jury on all of the law that applies to the facts of the case. See State v. Harris , 839 S.W.2d 54, 73 (Tenn. 1992). Anything short of a complete char g e denies the defe

ndant his constitutional right to a trial by jury. See State v. McAfee , 737 S.W.2d 304, 308 (Tenn. Crim. App. 1997). However, a spec

ial instruction nee

d not be given when

its substance is a

lre ady covered in the general charge. See Edwards v. State, 540 S.W.2d 641, 649 (Tenn. 1976).

The defendant requested the following jury instruction with respect to circ umstan tial evidence: Before an accused may b e convicted of a

criminal offense

based exclusive

ly upon circumstantial e

vidence, the evi

dence must be so str

ong and cogent as t

o exclude every other reasonable hypothesis except the guilt of the defendant. In other words a web of guilt must be woven around the defendant from which he cannot escape and from which facts and circumstances the jury c ould dr aw no other reasonable infe

rence except th

e guilt of the defe

ndant beyond a re

asonable doubt.

The trial court denie

d the defendant’ s special reques t and, after instr

ucting the j ury on direct evidence, furth

er instructed the

jury as follows: Circumstantial ev idence is all the testimony and exhibits which give you clues about what happened in an indirect way. It consists of all the evidence which is not direct eviden

ce. For example,

if a witness test

i fied that the witne

ss [s]aw it raining outside, that would be direct evidence that it was raining. If a wi tness testified that the witness saw someone enter a room wearing a raincoat cove red with drops of water and carrying a wet umbrella, that would be circ umst antial evidence from which you could conclude that it was raining.
According to our laws, direct e vidence is not necessarily better than circumstantial evidence. Each type of evidencecan prove a fact if it is convincing enough. A defendant may be convicted on direct evidence, circumstantial evidence
or b o th. When the evidence is entirely circumstantial, then before you would be justified in finding the defen dant guilty, you must

find that all the essential facts are consistent withthe theory of guilt

, and the facts mus

texclude every o

ther reasonable theory except tha

t of guilt.
First, we do not believe that the trial court erred by denying the defendant’s special

request. The trial court’s ins truction that the facts must be consistent with t

he theory of guilt a

nd must-13-

exclude every other reasonable theory except that of guilt embraces the concepts in the defenda nt’s proposed instruction and is a correct statement of the law. See State v. Tharpe , 726 S.W.2d 896, 900 (Tenn. 1987).
Furthermore, we do not believe that the trial court erred by providing t he “wet umbr ella” example. The defendant argues that this example is too extreme and “overstates the importance of circumstantial evid ence.” We disagree. The “wet umbrella” example does not place any extraordinary importance upon circ umstantial evidence. In fact, the trial court specifically instructed the jury that it could convict the defendant on direct evidence, circumstan tial evid ence, or both. Furthermore, the trial court had already instructed the jury that the state must prove the defendant’s guilt beyond a reasonable doubt. We believe that the “wet umbrella” example was not a comment
on the importance of

circumstantia

l evidence but merely aided the jury in understanding the difference between direct and circumstantial evidence.

In consid eration of t he foregoing and the record as a whole, we affirm the judgment of conviction.