### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON June 4, 2002

Session
STATE OF TENN ESSEE v. ERIC BER NARD CHISM Direct Appeal from the Circuit Court for Madison County No. 00-446 Robert A. Page, Judge Sitting by Interchange

No. W2001-01287-CCA-R3-CD - Filed Nove mber 8, 2002

A Ma dison County jury

convicted the defendant, Eric Ber nard Chism, of first-degree murde r , especial ly ag grava

ted kidna pping, a ggra vated ra pe, and a ggra vated se xual batter

y in connec tion with the abduction and homici de of Beatrice Sue Westbrooks. The defe ndant received an effective sentence of life plus 25 year s. On appeal, the defendant arg ues: (1) his right

to a speedy trial wa s violated; (2) the trial court erroneou s ly severe d his case from that of his co-defendant; (3) the evidence is insufficient

to support his convictions; (4) the trial cou rt erron eously admitted u

nfairly prejudicial and infla

mmatory photogr aphs; (5) the trial

court impr

operly ruledthat his prior narcotics conviction could be used for impeachment should he elect to testify; (6) a new

trial should have been granted based on newly disc overed evidence, but, at any rate , the hearing on the motion for new trial should have been

continued until the results of additional forensic testing were available; and (7) the trial court er

red in i mposing consecutive sentencing. After a thorough review of the rec ord, we affirm t he judg ments and

sentenc ing of th

e trial c ourt. Tenn. R. App.P. 3; Judg ments o f the Circ

uit Court are Affirm

ed.
J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in whichJ OSEPH M. T IPTON and J ERRY L. S MITH , JJ., joined.
C. Mark Donahoe, Jackson, T ennesse e (on app eal); and Scott G. Kirk, Jackson, Tennessee (at trial), for the A ppellant , Eric B ernard

Chism.
Paul G. Summers , Attorne y General & Repor ter; John H. Bl edsoe, A ssistant A ttorney Genera l; James G. Woodall, District Attorney Gener a l; and Shaun A. Brown, Assistant District Attorney General, for the Appellee, State of Tenne ssee.-2- OPINION
On December 17, 19 98, shortl y before 4:00 p.m., t he nude body of Be atr ice Sue Wes tbrooks was found in a grassy area off of Algie Neely Road in Madison County . Th e polic e were summoned, and the a ssistant c ounty coroner pronounc ed Ms. Westbrooks dead at the scene

. The victim’s identity was unknown at the time.

The following day , Dr. O.C. Smith, the S hel by County Medical Examiner, performed an autopsy

and dete rmined tha

t the cau se of dea

th was mult

iple injuries. The victi

m had sustained four gunshot wounds to

the head and upper body . There were crushing- type injuries involving the chest, abdomen, and extremities that were consistent with a vehicle having r un ov er th e b od y; the victim’s upper ar

ms, ribs, a

nd pelvic girdle were fractu red, and the crushing force a pplied to the abdominal area had split the flesh causing the intestines to extrude. The body also exhibited signs of strangulation and vaginal penetra tion. The injuries, Dr. Smith t es tified, were inflicted contempo raneous ly and while the victim was still alive . Dr. Smith w as unable to provide

an accu rate estimate of the time of death.

To identify the victim, the Madison County Sheriff’s Department solicited help from the public. A tip suggesting the victim’s name led investiga tors to dental records fr om which Dr. Smithidentified the vic tim as Ms. Westbrooks. Several weeks passed, but investigators made no further progre ss in the ca se. The d efenda nt’s involv ement in th

e homicid

e, which was hotly contestedat trial, was not suspected until March 28, 2000, at which time

an ey ewitnessto the crimes identif ied the defendant and Calvin Ly ons as the men who kidnapped and murdered Ms. Westbrooks

. In the light most favorable to the state, the evidence at tri al sho wed th e foll owing. Madison County Sheriff’s Department Lie utenant Donna Turner, the commander of the c riminal inve stigation division, and Sergeant Tom Rudder, the lead investigator on the c ase, processed th e homicide scene for evidence, and they testified at trial about what they observed and found

and how they determined the

woman’s identity. Sergeant Rudder testified that the cr ime remained unsolved until March 28, 2000, when Sergeant Rudder

was contacted at his home by Sergeant Mark Reeves with the Jackson Police Depart ment. The police department had someone in custody who wanted to talk about th e W es tbrooks homicide. The person, who was being held in connection with a stolen truck, was Melanie Bl ack. She gave Serge ant Rudder a statement about the homicide and identified th e defenda nt, whose street name was “Berna rd,” and Calvin Ly ons, whose street name was “June,” as the perpetrators. Sergeant Rudder testified tha tMs. Blac k was abl e to supply

details a bout the c rime that could have been known only to someone who was present. The next day , March 29, the police locatedand arr

ested bot h men. The defendant and L yons were charged with premeditated and fe lony mu rd er , e sp ec ia ll y ag gr av at ed ki dn ap pi ng , a ggr av at ed ra pe , a nd ag gr av at ed se xu al ba tt er y.

At the time We stbrooks w as murde red, Mel anie Bla

ckwas admit

tedly a prostitu

te and crack coc ain e drug u ser. W hen sh e test ified at tri al, sh e also was a co nvict ed felo n serv ing a-3-

three-y ear sentence for theft of a truck. Black knew the defenda nt and Lyons before

Westbrook s’ death. She had purchased crack coca ine from the men. Black testified that on December 17, 1998, she contact

ed “June”Ly

ons to mee

t her at F uel Mart n

ear Wilhit

e’s Truc k Stop to buy

some crack cocaine. The defendant and L yons arrived in a

pickup truck, and the three left with Bla ck sitting in the middle

of the tru ck seat.
Black testified th at at some point during the ride the defendant asked L yons if the police we re behind them. B lack tur ned and in

the truck bed “saw somebody ’s legs taped together in a blanke

t.” She co

uld not t ell who the

person w as. The d

efenda nt order ed Ly ons to blind

fold Black and put her in the floorboard. Black testified that she did not know how long or to where they drove. When they stopped, they removed her blindfold. Black described

the are a as somewhere in the county off the

road.
While Black r

emained in the truck, the defendant and L yons removed the w oman from the bed of the truck and

took her to the front of the vehicle. Black d id not rec ognize th

e victim. The woman was unclothed, and the men began hitting and kicking he r. After a time, the men took Black out of the truck. They

forced the victim to perform oral sex on Black. Blac k testified that the victim was upset and pleading with the men. Black sa id that she kept

telling the victim that she was sorry. One of

the men hit Black in the nose, and Ly ons told her to get into the truck.
Black testifie d that onc e inside th e truck, she saw th

e defendant gr

ab the victim

by the back of the hair and pull her to her knees. The defendant drew a gun fro m behind his back. Black described what

followed: “And he shot her somewhere in – towards her head. I don’t know exactly where. And

I put my head down, and the gun went off two more times.” Blac k testified that she did not see the other

shots bec ause she

had her h ead in her hand s, but she c ertainly heard th em. Black testified that, after the shots were fired, the men took turns ra pin g her in the front seat of the truck. Fi rst, the defendant raped her while L yons held a g

un to her head. Black admitted that

she did not fight, but she testified that she did not consent to the sex. Afterwards, the men again b lindfolde d Black and put he

r in the truck flo orboard . They drove aw hile, and Ly ons told her to get up in the seat. L yons undid the blindfold, and the defendant stopped the truck and went into a store. When the defendant returned, the men drove Black to her a partment complex and let her out by the soft drink

machine. Black testified that before driving off, the defendant told her that if she “eve r said any thing ab out this, wh at happe ned to [her

] would be worse .” The de

fendant also threate ned her t hat she be tter pay him that nig

ht the mone

y th at she ow ed him for

drugs.
Black testified that she “went to work” and earned the money . Later that night, she contacted Ly ons and tol d him that sh

e had the defenda nt’s mone

y. T he defe ndant coll ected hi s money and sold Black more crack coc aine. Black explained that shedid not report anything to the police because

she was s cared. After th at night , Black admitted that she “worked for” the defenda nt and Lyons a few times. The men would take her pl ac es to se rv e a s a pr os ti tu te , c ol le ct th e m on ey, and give her crack c ocaine.1 The defen se elicited from S ergea nt Rud der tha t the po lice wer e unab le to connect the defendant wit h a truck matching the descripti on provided by B lack. The vehicle in t he defendant ’s poss essi on when he was arrested was a blue pickup truck, and Lyons owned a stati on wagon. Odd ly, t he police did locate a green and white truc k, titled to a pers on who se last nam e was C hism, b ut the ow ner wa s not the defen dan t. -4- Black eventual ly left

town. She testified that she became afraid “something was fixing to happen” to her. She and a male friend left the state in a stolen vehicle. They wer e arrested in the stolen vehicle in Ohio, and Black was tran sported t

o Tennes see. Af

ter her arrest, Black to ld the police about the homicide and about her own brutal treatment. When Bla ck learned the victim’s id en ti ty, Black realized that she had encountere d the victim a “couple of times in passing,” including once at a crack house on Gordon Street. Black accompanied Sergeant Rudder to var ious locations to try and identify

where the events occurred, and she estimated the time of the e vents to have been between1:00 and 2:00 in the afternoon, with the men leaving her at the apartment shortly a

fter 3:00 p.m. Based uponBlack’s account of events, the defendant and L yons were also separately

charged with the aggravated kidnapping of Black and two counts of agg ravated rape.
At trial, Black ins isted that

sh e had no agreement or “de al” in connection with her te st im on y. Predictably, the def ense vigorously a

ttackedher cre dibility . Regar ding the stolen ve hicle conviction, the defe

nse elicited that Black originally pleaded guilty

with an agreement for a threeyear, community corrections sentence. Black testified that as part of the a greement she

was also t

old that after successfully

completing community cor rections, the felony conviction would be expunged from her record. Withina couple of weeks of her community corrections placement, however, B lack was arr ested on d

rug ch arges
. Accord

ing to B lack, wh

en she ap peared in court o n the comm

unity corrections revocation warrant, she entered a “new plea” t o a t hree-y ear incarcerative sentenc e, which she cu rrent ly was serv ing.

On cross-examination, Black stated that when she called Ly

ons from Fuel Mart, she askedonly

for $60 w orth of c ocaine, althoug h she had

earned se veral hundred dollars from prostitut io n the previous even ing. Bl ack cla

imed that s he had been smoking crack c ocaine a

ll morning before

going to Fuel Ma

rt to ea t, talk with some truck drivers, and use the outside telephone. When the defendant and Ly ons arrived, Black described their vehicle as an older

model green and white pickup truck. 1

The defense also covered severa l inconsistencies between Black ’s tri al testimony and other statements she had given. For example, in

her pre liminary hearing testimony , Black

said that when she “turned around to look, [she] saw a naked woman in the back of the truck.” She did not mention a body wrap ped in a blan ket wi th legs taped toge ther. Al so, in her previousstatemen

ts, Black maintained that she never got out of the truck, and she never mentioned the men forc ing the victim to perform oral sex on her. At the preliminary hearing, Black adm

itte d that after the Westbrooks slaying, she ha d consensual sex with the defendant on more than one occasion.
In addition to Bla ck’s eye witness testimony, the state offer ed the testimony of Christopher

Williams, who had pending charge s for aggravate d burglary and was incarcerated in the2 At t he con clusion of the p roo f, the trial co urt discu ssed its inte nde d jury in struction s with the p arti es
.

Concerning possi ble l esse r-i nclu ded off ense s, couns el f

or th e def

endant st ated unequi vocal ly tha t the def endant did not want the jury ins tru cted on any lesser- included offenses. The defendant on app eal has not chall enged the charge to the jury, and w e per ceive no infirm ity therewith in li ght o f the defendant’s affirmative waiver o f lesser-included offense instructions. See State v. Eles a D . Mc Da niels , No. E2000- 0279 0-CC A-R3 -CD, sl ip op . at 6-7 (T enn. C rim. A pp., Knoxville, Nov. 1, 2001). (con tinued ...) -5- Madison County

jail. Willia

ms’ prior

criminal history included

convicti ons for r

eckless endang erment, aggravated assa ult, failur e to appe ar, and a ttempted s econd-d

egree murder. Williams testified that he f

ir st encountered the defendant in March 2000, whe n he and the defendant were assigned to the sa

me cell bl ock in the

jail.
Williams and the defendant had many conversations. Williams testified that the defendant admitted t

hat he wa s in jail fo

r killing a girl, and the defendant

bragged that “the detectives and every body wouldn’t b e able to

prove it because she wasn’t nothing but a cra ck head and that the one witness that the state had was telling a lie to cover her own ass.”
Williams testified that the defendant talked a bout some o f the det

ails of the cr

imes. Williams said that the defendant told him about driving into a field by a tree. Ly ons held Black

at gunpoin t, and the defendant told Black, “[Y]ousee what happens when y ou don’t pay, when

you run off and don’t do what y ou’re supposed to do. Do y ou think we playing at this or d

o yo u think this is som e ki nd of joke?” The defendant told Williams that at that point Ly ons interrupted, told the defendant to do what he was supposed to do , and said, “We ain’t got time to be out here messing around.” Williams testified that the defendant said he then shot the victim. The defendan t also related that Lyons next shot the victim and that the two men beat and kicked the victim in the crotch. Afterw ards, the men dr

ove Bla ck to her apartme nt. Acco rding to Williams, the defe ndant never explained how he met the victim, but the defendant said that he met Black at a strip place and that Black “started turning tricks” for the defendant.
Wi lliams e xplained that his motivation for testifying was twofold. Fir st, he was trying to “lighten the load” regarding his own criminal charge. Second, Williams testified that the defendant’s callous remarks about the victim being a “cra ck head whore” bother

ed him beca

use Williams’ si ster took drugs and easily could have met a similar fate. On cross-examination, Williams admitted that Sergeant Rudder a ssured him that if he testified, the state would recommend an incarcerative sentence of eleven months and 29 day s on his pending burglary charge.
At the conc lusion of th

e state’ s case, t

he trial c ourt rule d that if

the defendant testified, his prior drug conviction could be used to im pe ac h h is cr ed ib il it y. T he de fe nd an t d ec li ne d t o t es ti fy, and he did not offer any

proof in defense.
The jur y c onvicted

the defe

ndant of t

he offe nses specific to Wes tbrooks: pr emeditated, first-d egree murder, first-deg ree murder in the perpetration of an e specially ag gravated kidn appin g, especia

lly aggravated kidnapping , aggravated ra pe, andag gr av at ed se xu al ba tt er y. 2 On2 (.. .cont inu ed)

3 Our discu ssion of the issues in this opinion is in a different order than presented in the parties’ briefs. -6- the remaining counts involving Black, the jury found the de f

endant not guilty. The

trial court imposed an effective sentence of life plus 25 y ears. The defenda

nt has timely a

ppealed his convi ction s and s enten cing. I. Speedy Tr ial Claim3
The defenda

nt compla ins that hisconvicti ons are infirm bec ause his right to a speedy trial was viola

ted. Fro m the rec ord, we d iscern th at the defendant

was arr ested in March 1999 in connection with the homicide of Ms. Westbrooks. Following a preliminary hearing, an

indictment was returned onAugust 2, 1999, No. 99-526, c harging premeditated a

nd felony murder, two count s of aggravated sexual battery , and aggravated r ape. On September 14, 1999, the d efendant filed a motion dema

nding a speedy trial. The record reflects that on January 11, 2000, the co-def

endant, C alvin L

yon s, filed a motion requesting that the January 24, 2000 trial date be continued to allow adequate time for trial preparation. A consent order was entered on January

13, 2000, continuing the case until February 15, 2000 for selection of a new trial date. The consent order was approved for entry in writing by all the parties, including the defendant.

In May 200 0, the d efendant filed several motions, including a motion to strike the offense of especially

aggravated kidnapping , which was listed on the cover of the indictment but not charged as a sepa rate count. That mo tion also sought to strike one of the two aggra vated sexual battery cha

rges as duplicat

ive. The record does not c ontain

a ruling on the motion, but on June 5, 2000, a superseding indictment was returned, No. 00-446, c harging premeditated

and felony murde

r, especia lly aggravated kidnapping , aggravated ra pe, and aggrava

ted sexual battery. That

samedate, the defendant moved to consolidate indictment No. 99-526 with indictment No. 99-527 (t he Melan ie Black charges) and

to dismiss both indictments on the ground thathe had been denie d a speed y tr ial.
On June 29, 2000, the defendant and Lyons moved to have their cases transferred by inter change to anothe

r division. The motion

recited that desp ite the trial judge’s “dilige nt effor ts” to secure a trial date with a substitute judge, no trial da te had been set. Evidently , the motion was granted, and on August 15, 2000, a substitute judge, sitting by interchange, entered a

n order deny

ing the motion to dismiss based on denial of a speedy trial. I n short order , the new tr

ial judg e also scheduledall motions for hearing on September 5, entered an order of nolle prosequi dismissing indictment No. 99-526 and permitting the state to proceed on superseding indictment No. 00-446, transferred

all earlier pleadings to indictment No. 00-446, consolidated indictment No. 00-44 6 with indictmentNo. 99-527 (the Melanie Black charges), and scheduled a trial for September

26, 2000.-7- Against this background, the defenda ntargues in rather conclusory fashion that his speedy trial rig

hts were violated for which his convictions should be dismissed. We disagree. By statute and by fe deral and state constitutional guarantees, an a ccused has the right to a speedy

trial. See U.S. Const. amend. VI; Tenn. Const. art. 1, § 9; see also Tenn. Code Ann. § 40-14-101 (1997). “The right to a speedy trial attaches at the time of arrest or indictment, whichever comes first, and continues until the date of the trial.” State v. Vicke rs , 985 S.W.2d 1 , 5 (Tenn . Crim. App. 1997).
Four

factors are considered and we ighed in determining if the right to a speedy

trial has been co mpromised . On appe al, the tr ial court’s appl ication o f the fou r-part b alancin g test is reviewed for abuse of discretion. State v. Jefferson , 938 S.W.2d 1, 14 (Tenn. Crim. App. 1996). The factors are (1) the le

ngth of t he delay , (2) the

reason f or the de lay , (3) the

assertio n of the r

ight to speedy trial, and (4) any

prejudice to the defendant occasioned by the delay. Barker v. Wingo , 407 U.S. 514, 530, 9 2 S. Ct. 2182, 2 192 (1972 ); State v. Bishop , 493 S.W.2d 81, 83-85 (Tenn. 1973). Of these factors, the most important is prejudice, and the critical inquiry concer ning pre judice “ is the impairment of the ability to pre pare a d efense.” State v. Vance , 888 S.W.2d 776, 778 (Tenn. Crim. App. 1994). To activate the four-part inquiry , the interval between accusation and trial must be “presumptively pr

ejudicial.” Doggett v. United States , 505 U.S. 647, 651-52, 112 S. Ct. 2686- 2690 (1992). A delay appr oaching oneyear usua

lly activates the inquiry

. See Vick ers , 985 S.W.2d at 5. Regarding the length of delay factor, the defendant’s trial in this case commenc ed on September

26, 2000. He was arre sted at the end of March 1999; therefore, the de lay betwee

n accusation and tri al w as a ppr ox im ate ly ei ght een mo nt hs. In State v. Walton , 673 S.W.2d 166 (Tenn. Crim. App. 1984 ), a two- ye ar dela y w as held in sufficie

nt, withoutmore, to presume prejudice, and more recently

in Vickers , a delay of

three ye ars and

nine months was held not to require dismissal for lack of a speedy

trial. Vickers , 958 S.W.2d at 7. Regarding the reason for delay factor, the defendant claims, without any citation t o the record, that “the State was just not ready to go forward” on

May 24, 2000 and that the trial court improper ly continued the trial until September 26. It appear s to us that there weremultiple reasons for delay in this case.
Notwithstand ing the defendant’s Septe mber 14, 1999 demand for a speedy trial, when co-defendant

Lyons sought a cont

inua nc e i n J an ua ry 2 00 0, th e d ef en da nt ac qu ie sc ed in th e d el ay, which resulted

in the tria l being c ontinued u

ntil May 24, 2000. As for the May to September period of delay, our

review is hampered because the de fense has not provided a transcript of the May 24, 2000 proceeding wherein the trial wa s rescheduled to begin September 26. The plea dings in the rec ord suggest that the original trial judg e was unavailable to preside, due to illness in his fam ily , and that as of May 24

ar rangements had not been finalized to secure a substitute trial judge. An additional re aso n appears in the state’s written response to the defe ndant’s new trial motion. The-8-

state e xplains that bec ause of a defect in the orig

inal indic tment, ad

ditional ti me was required to obtain a superseding indictment. This explanation tracks the pleadings on appe al that show on June 5, 2000, a superseding indictment was returned.

The most frequently enc ountered reasons for de la y a re (1) intentional delay by the state to gain a tactic al a dvantag e or har ass the de

fendant , (2) neg

ligenc e, (3) de

lay necessa ry to effec tively

prosecute the case, and (4) delay caused by or acquie sced in by the defendant. See State v. Wood , 924 S.W.2d 342, 346-47 (Tenn. 1996). The first and second reasonsweigh a

gainst t he state withintentional delay ca

rrying the greater weig

ht. The third rea son is esse ntially neutral, weighing neither in favor of nor ag ainst e ithe r party . The fou rth rea son weig

hs aga inst the ac cused. I

n this case, we ar e persuaded that the third and fourth reasons for the delay a

re evident; therefore, thi s factor does not support a determination that the defendant was depr ived of hi s right to

a speedy trial. Regarding the assertion of the right to a speedy trial, the defendant first invoked the right in Septemb er 1999, approxima tely six months af

ter his ar rest

. Less than four months after demanding a speedy tr

ial, however, the defendant acquiesced in a continuance requested byhis codefenda nt. Another

demand f or speed y tr ial was not forthco ming unti l June 2000. T his factor favors the defe ndant, bu t it is entitl ed to slig

ht weight.
The final co nsidera

tion, the p rejudic e facto

r, does not avail

the defe ndant. Typ ic al ly, an accuse d will argue

prejudic e by

citing f actors s uch as the

death of a key principa l witness prior to trial or the clouded memory of witnesses because of the

elapsed time. In this case, the de fendant’s only argume nts are th at had hiscase been tried earlier , his jail ma

te, Christ opher Willi ams, would nothave testified and that he and L yons would have bee

n joi ntly tr ied. This argument, in our opinion, is inadequate to make an affirmative showing that the de lay impaired the defendant’s ability to prepare a defense. I

n addition, we note that the jury a cquitted the d efe ndant of the offenses involving Black.

On balance , the def

endant ha s failed t

o demonstrate that he was deprived of his right to speedy trial, and we affirm the trial court’s denial of the motions to dismiss the prosecution on that basis.
II. Severance of Defendants

Next, we take up the defendant’s complaint that the trial court errone ously gra nted a severance of defenda

nts.
The g rant or d

enial of a motion fo

r sever ance of defenda nts is a mat

ter that r ests within the sound discretion of the trial court, and this cou rt will not d isturb the trial court's ruling absent a clear abuse of that discretion. State v. B urto n , 751 S.W.2d 440, 447 (Tenn. Crim. App. 1988). Tennessee Rule of Criminal Procedure 14 addresses severance of defendants and provides in pertine nt part tha

t the tria l court-9- on motion of the State or on motion of the defendant other than under subdivision (c)(1), shall grant a severanc e of defendants if: (i) before trial, it isdeemed n

ecessa ry to protect a defen dant's right to a spee dy t

r ia l or it is de emed app

ropriate to promote

a fair determination of the guilt or innocence of one or more defendants; or (ii) during trial, with consent of the defendant to be seve red, it is deemed necessary

to achieve a

fair determination of the guilt or innocence of one or more defenda nts. Tenn. R. Crim. P. 14(c)(2).

Most severa nce-of -defendants issu es come b efore t his co urt in the form of a complaint by a defe ndant that reversible error resulted from being jointly

tried with

a co-de fendant

. In this case , howeve

r, the defendant

argue s that he w as u ndu ly prejudiced because the trial court granted a severance of defenda

nts.
The trial cou

rt in this c ase was confron ted with a classic Bruton problem. See Bruton v. United States , 391 U.S. 1 23, 88 S. Ct. 1620 (1968) (admission of co-defendant’s confession that implicated defendant in joint trial constituted prejud icial err or). The record reflects that on the morning of

trial, the state filed a motion to sever defendants because it intended at trial to introduce statemen ts that t he defe ndant allege dl y made while in pretrial custody to another inmate which inculpatedboth the defendant and Calvin

Ly ons. I n respons e to the severance motion, Ly ons argued that the trial court should either exclude the inmate’s testimony or redact theportion of

the statement that mentions Ly ons’ involvement in the offenses. The state countered, and the tria l court agreed, that the prosecution could not fa irly present its case i f all ref ere nce s t o Ly ons were deleted. The references to Ly ons, the state explained, supplied invaluable ev idence that corroborated the testimonyof the eye

witness, Melanie Black. The only objection to severance voiced by the de fe nd an t w as th at th e s ta te ’s mo ti on wa s u nt im el y.

On appea l, the def endant in sists that he was pr ejudice d by

the seve rance b ecause

it forced his attorney “to g o forward without being properly prepared for t

rial on his own due to the joint defense preparation.” Our re view of the record reveals that af ter the trial court

g ranted the sever anc e, Lyons’ counsel interrupted to request a few additional minutes before the jury was brought in to “prep” the defendant’s attorney about areas of witness examination that the defendant’s attorney had not been invo lved i n deve lopi ng. The defendant’s attorney added a request for the trial court’s “patience on that because we’r e at somewhat of a disadvantage until we ca n sit down and go over some notes and get some documents straightened out and stuff .” The trial court stated

that it would “work with” defense counsel, and the trial cour tsuggest ed tak ing a long lunch break so the at to rn eys could con

fer. The defenda nt never objecte d to the tri al court ’s propos al, and he requested neither additional time nor a continuance.-10- Preparing for tr ial ca n be a t ime-i ntens ive un dertak ing. When the workload has been divided betwee

n or among

counsel f or co-de fendant s, we appr

eciate that an eleventh-hour severance of defendants cou ld pose a considerable hardship for the defendant whose case proceeds as scheduled. In our opinion, the trial courtin this case exhibited an appropriate sensitivity to that potential prejudice, and the defenda nt has neither alle ged nor demonstr

ated any specific hardship from which we could conclude that the trial court abused its discretion. Accordingly , we affirm the trial cou rt’s dec ision to sev er the de fendant ’s and L

yon s’ case s. III. Sufficiency of the Evidence
The defendant insists that the evidenc e is insuff icient to support his convictions. He claims that his acquittal on the charges involving Blac k is inconsistent with the guilty verdicts for the offenses related to Westbrooks. He also arg ues that the state’s evidence is “suspect” as illustrated by the jury ’s rejection of Black’s testimony about her own treatment at the hands of the defenda nt. The thrust of the defendant’s sufficiency -of-the-evidence arg ument is that the evidence did not est

ablish tha t he was a perpetr ator of th e crimes

. First, consistency in verdicts for multiple-count indictment s is not required. See, e.g., Wiggins v. State , 498 S.W.2d 9 2, 93-94 (Tenn. 197 3); State v. Gennoe , 851 S.W.2d 833, 836 (Tenn. Crim. App. 1992 ). Conseq uently , the jury ’s not gu

ilty verdict s on the of

fenses concerning Black provid e no basis t o attack the legal sufficiency of the convicting evidence on the counts naming Westbrook s as the vi ctim.

Second, the alleg ed “suspect” natu re of the state’s e vidence is not an a

ppropria te subject for our evidence s uffic iency review. A jury

verdict , approv ed by

the trial judge, accre dits th e testim ony of the witnesses for the state and resolves all conflicts in favor of the theory of the state. State v. H

atchett , 560 S.W.2d 627, 630 (Tenn. 1978); State v. Townsend , 525 S.W.2d 842, 843 (Tenn. 1975). On appeal, the state is entitled to the strongest legitimate view o f the evidence and all reasonable or legitimate inferenc es which may be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 836 (Tenn. 1978). Moreover, a verdict against the defendant re moves the presumption of innocence and raises a presumption of guilt on appeal. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973); Anglin v. S tate , 553 S.W.2d 616, 620 (Tenn. Crim. App. 1997). The defendant has the burden of overcoming this presumption. Stat e v. Brow n , 551 S.W.2d 329, 331 (Tenn. 1997). Most signific antly , when the

sufficie ncy of the evidence i s challenged, the relevant question for an appella te court is whether, after review ing the evidence in the light most favorable to the prosecution, any

rational trier of act could have found the essential e lements of the crime bey ond a reasona ble doubt. Tenn. R. App. P. 13; Jac kson v. V irginia , 443 U.S. 307, 99 S. Ct. 2781, 2782 (1979). Applying

these pr inciples, it is obvious that the state introducedevidence that, when accepted and accredited by

the jury, established that the defenda nt committe d the off

enses offirstdegre e murder , especi ally aggravated kidnapping , aggravated ra pe , a nd ag gr av at ed se xu al ba tt er y. The def endant’ s argum

ent about the state ’s “suspect” evidence is nothing more than an assault on-11-

the cred ibili ty of Melanie

Blac k. We cannot, under the circumstances, usurp the jury ’s respo nsibility and power

to accept some, all, or

none of a witness’ s accoun

t of even ts. The tr ial, not the

appeal, is the threshing arena

for winnowing out the chaff from the sometimes jumbled mass of evidenc e. Becau se the evidence is legally sufficient to support the verdicts, we reject t he defe ndant’s a rgumen t.
IV. Adm issibility of Photogr

aphs
The defenda

nt claims t

hat he is entitled to a new trial because the trial court permitted the state to introduce unfairly pre judicial and inflammatory photog raphs. Specifically , the defendant objects to eighteen photographs introduced as collective Exhibit 2; these photographs were taken at the crime scene, and

most of them depict, from various angles and lighting c onditions, the victim’s bo dy. The defendant also o bj ects to four photographs introduced as collective E xhibit 3, which show the boot and tire impressions on the ground at the scene. These photographs do not show the victim’s body . The last

set of objecte

d-to phot ographs are seventeen a utopsy photogra

phs introduced as collective Exhibit 6. The de fendant ar gues in conclusory fashion that the photographs were unnece ssa ry, cumulative of other evidence presented, a nd inflammatory. He of

fers no individua lize d argume nt perta ining to s pecific

photogr aphs.
We apply a fa

miliar standardof review. In dete rmining whether a photograph should be admitted, the trial

court mus t determine, firs t, whethe r the phot ograph is relev ant. Tenn. R. Evid. 401; State v. Banks , 564 S.W.2d 947, 949 (Tenn. 1978). Photographs are not necessarily rendered inadmissib le because they are cumulative of other evidence or because descriptive words could be used. See Collins v. State , 506 S.W .2d 179, 185 (T enn. Crim. App. 1973). Photographs must be relevant to prove some part of the prosecution's case and must not be admitted solely to inflame the jury and pre

judice them against the defendant. Banks , 564 S.W.2d at 951; see Tenn. R. Evid. 403 (relevant evidence may

be admitted if its probative value is not "substan ti ally outweig hed by the danger of unfair prejudice"). On appe al, the trial court's decision to admit a photog raphic e xhibit is reviewable for abuse of discretion. Banks , 564 S.W.2d at 949.

In our view, the trial

court did not abuse its discre tion with r espect t o the photo graph s.
F irst, we see no basis to question the admissibility of the boot and tire impre s sio n photographs. Second, as for the autopsy and crime-scene photographs, the r ecord reflects that the trial court was appropriately sensitive to their shock value; indeed, the trial court excluded some of the photographs that the state sought to introduce and enc ouraged the state to eliminate as many pictures as possible.

Ad mi tt ed ly, the photographs in this case are gr uesome. The victim, h owever, was subjectedto a mind-numbing array of violen t assaults . She was s tripped n aked, viciously kicked and beaten, shot multiple times, strangled, and crushed by a force – pro bably a vehic l e – powerful enough to fractureher face, both arms, and four ribs and to split the skin along the abdomen causing her intestines to extrude. The victim had not been dead long when the photographs at the scene were taken, and the body

had not started to decom pose. Phot

ographs of a co

rpse ar e “admis sible in-12-

murder p rosecut ions if the y a re rele vant to the issues on trial, notwithstanding their gruesome and horrifying

character.” Banks , 564 S.W.2d at 950-51.
In this case, the state had the burden with respect to the first count of the indictment to show beyond

a reasonable doubt that

the defendant committed premeditated, first-deg ree murder. The existence

of preme ditation is a qu estion of fact for the jury to determine and may

be inferred from the circumstances surrounding the offense. State v. Rosa , 996 S.W.2d 8 33, 837 (Tenn. Crim. App. 1999). Th

e use of a deadly weapon u

pon an una

rmed vic tim, the pa

rtic ular c ruelty of the kill ing, declarations by

the defendant of his intent to kill the victim, evidence of a procurement of a weapon, preparations before the killing f

or conce alment of

the crime , and ca

lmness imme diately after the killing may

support the existence of premeditation. State v. Bland , 958 S.W.2d 651, 660 (Tenn. 1997). The trial court, in our opinion, did not abu se its discreti on in dete rmining that these photographs were proba

tive of premeditation an d that the ir proba tive valu e was not

substantia

lly outweighed by

the danger of unfair prejudice

. As particularly r

egards the autop sy

photographs, our review of the rec ord also shows that durin g a jury-out hear

ing on the admissibility of those pictures, the defe ndant waived objection to all except one photograph of the victim’s genital area. That photogra ph was relevant because the fourth count of t

he indic tment charg ed aggravated r ape, and the state had the burden of demonstrating that sexual penetration ha d occurre d. The photograph, in conjunction with Dr. Smith’s testim on y and the testimony of Melanie B lack, supported the state’s theory that the defendant kicked th e victim w ith suffic ient forc e in the g roin area to penetra te and injure the victim’s genita ls.
In conclus ion, we h old that the trial court did not err in admitting the photographs in this case.
V. Defenda nt’s Pr ior Convic

tions
The defe ndant next c ontends th at the tri al court improper

ly r uled that his p rio r narcotics conviction could be used for impeachment should he testify . Following this ruling, the defendant did not take the stand.

Subject to certain conditions for admissibility, Tennessee Rule of Evidence 609 authorizes the use

of proof of a witne ss's pri or convictions in or de r t o a tt ac k a wi tn es s' s c re di bi li ty. Tenn. R. Evid. 609(a). The prior conviction must be for a felony or a crime involving di sho nesty or false statement. Id . 609(a)( 2). To be eligible as an impeaching c onviction, a prior felony conviction need not involve dishonesty. Id.

When the witne ss to be impe ached isthe criminal d efendant , the state must give notice prior

to tri al of its in tent t o utilize the conviction for impeachment purposes, id

. 609(a)(3), and upon request, the cour

t must det ermine the admissibility of an eligible conviction by deciding whether "the conviction's probative value on credibility outweighs its unfair prejudicia l effect on the-13-

substantive issues," id. In making this determinat ion, "two cri teria are especi ally relevant." State v. Mixon , 983 S.W .2d 661, 674 (Tenn. 1999). First, the court must "analy ze the relevance the impeaching conviction has to the issue of credibility" and "explain [the relevance] on the record," id ., and second, it must, "assess the similarity between the crime on trial and the crime underly ing the impeaching con viction, " id . (quoting Neil Cohen et al., Tennessee L aw of Evidence § 609.9, at 376 (3d ed.1995)).

On appellate review, the trial court’s rulings on a dmissibility of prior convictions for impeachment

purposes are subject

to reversal only f

or abuse of discretion. See Mixon , 983 S.W.2d at 674.
The prior conviction at issue in this case was for possession of cocaine with i ntent to resell. The offens e da te was April 13, 1990, and the defendant was sentenced on February 25, 1992 to a term of eigh

t y ears in c onfineme

nt. This co nviction f

ell well w ithin the te

n-y ear time period beyond which impea chment use of

prior convictions becomes less favored. Prior felony drug convictions can qualify a s being relevant and probative of an accused’s credibility. See State v. Dooley , 29 S.W.3d 542, 554 (Tenn. Crim. App. 2000).

Regarding the si mi la ri ty b etween the crimes on trial and the crime underly ing the impeaching conviction, the trial court in this case took into account the defense argument

that drug dealing was entwined with the offenses on trial, but it concluded tha t the offenses on trial were crimes of vio lence n ot si mila r to th e drug i nvol vemen t und erlying t he prior co nviction. As for relevance to the issue of credibility , the trial court observed that drug convictions ref lect on moral character and are not without

p robative val ue as to credibility. On ba lance, the trial court was conv incedthat the conviction's probative value on credibility outweighed any

unfair prejudici a l effect on the substantive issues in this case. We conclude the trial court acted within its discretion. VI. Newly Discovered Evidence
After the jury found him

guilty of the Westbrooks off enses, the defendant petitioned the trial court for a new trial. One of the grounds for seeking relief was newly discove

redevidence. Sp ec if ic al ly, the defendant claimed that after his trial, he enc ountered a jail inmate, Eric Log an, who was a cousin of state’s witness Christopher Williams. The defendant submitted an affida vitby Logan to the effect that Log an and W illiams had a convers ation in July 2000 wher

ein Williams related that he ha

d discove red a wa y to get out o f jail by

testify in g ag ainst the defendant. The defendant also submitted an affidavit by Larry Willis who stated that Melanie Black had confided in him that she was directly involved in Westbroo

ks’ murde r and tha t in exchange for “money and dope” she had lured Westbrooks to a “pre-discl osed” location. Willis’ affidavit did not name the other responsi ble part ies. Last, in an amendment to his new trial motion, the defendant asserted that when the motion is heard he will present testimony from Eliza

beth Este s who will sa

y th at Melan

ie Black solicited her to corroborate B lack’s testimony and “g o along with this story.”-14- The trial court conducted a hearing on the new trial motion. The defense presented no live testi mony . Ins tead, the defenda nt relied on the af

fidavits of Lo gan and Willis, and the defendant represented to the court that Es tes was eludi ng process and that more time would be needed to locate her. The trial court denied the motion for new trial. The defendant complains that his motion was heard prematurely and that it was erroneously denied.
In seeking a new trial based on newly discovered evidence, there must be a showing that the defendant and

defense counsel exercised reasonable dilig ence in attempting to discover the evidenc e and that the y did not know of the alleg ed newly discove red evidence prior to trial. See State v. Nichols , 877 S.W.2d 722, 737 (Tenn. 1994). Moreover, the materiality of the new evidence must be demonstrated, and the trial court must determine whether the result of the trial would like ly have been changed if the e vidence had been produced and accepted by

the jury. State v. Goswick , 656 S.W.2d 355, 358-59 (Tenn. 1983). On appellate review, we will disturb the trial court’s ruling on a motion for new trial based upon newl

y di scovered evidenc e only if the low er cour

t abused its discretion. State v. Walker, 910 S.W.2d 3 81, 395 (Tenn. 1995 ); State v. Meade , 942 S.W.2d 561, 565 (Tenn. Crim. App. 1996).

In the present case, the trial court found that the defendant had not met the burden required to receive a new trial

on the basis of newly discove red evidence. The trial court stated that th e impe aching evidence reflected in the affidavits submitted by the de fendant would not have changed the outcome of the trial. We ag ree.
Th e Logan a

nd Willis affidavits are not relevant to the substantive merits of the offense s. Neither

affida vit exonerat es the defendant . The mate riality of the affidavits relates, if at all, to the credibility of Bla ck and Williams as prosecution witnesses. Willis, for i n stance, in his affida vit does not name the men who allegedly enlisted Black’s help. Black’s alleged involvement does not exclude the defendant’s participation in th e offenses. The defendant claims that B lack’s participation makes her an a ccesso ry to the c rimes , ther eby requir ing the stat e to corroborate her te st im on y. Even so, there is evidence in this record that suffice s for that purpose. Willia ms’ testimony corrobo rated B lack’s a

ccount of the even ts. Logan’s affida

vit sugg ests that Wi lliams had a motive to

testify falsely agains t the defendant to gain early

release from custody . Williams, however, admitted at trial that one of the reasons he agreed to testify was to “lighten theload” regarding his own cr iminal charge. I

n our view, Logan’s affidavit was mere lycumulativ e of testimony alread y elicited a

t trial tha t brough t into question Williams’ credibility.

We are not at all convinced of the like

lihood of a

differe nt result h ad this evidence been produced and

accepted by

the jury. We further

note that to justify the gra nting of a new trial on the basis of newly

discover ed impea chment evidence , “it

must be shown that the testimony of the witness sought to

be impea ched wa s so importa

nt to the iss ue and the

impeach ing evid ence wa s so strong a nd convincing tha

t a differe nt result a t trial must necessarily follow .” State v. A rnold , 719 S.W.2d 543, 550 (Tenn. Crim. App. 1986) (emphasis add ed). The evidence that the defenda nt4 See Post-Conviction DNA Analysis Act of 2001, T enn. Code Ann. §§ 4 0-30-401 to -413 (Sup p. 2001). -15- submitted in this case was not of sucha chara cter an d, therefore, w as not a sufficien t basis for the grant o f a new tr

ial.
In connection with his pursuit of a new trial, the defendant is agg rieved that

the trial court would not continue the hearing on his motion pending the results of a forensic comparison of hair samples collected from the victim’s body with blood samples obtained from the victim, Black, Ly ons, and the defendant. Evidently , during the autopsy of the victim’s body, hair samples w ere retrieved but not submitted for testing. After the defenda nt was co nvicted, the state filed a motion to continue

Ly ons’ tria l to allow time for the evidence to be tested. A copy of the state’s continuance moti on was file d as a n exhibit by the defendant at the hea ring on his new trial motion. The trial cour t declined t o continue the new trial hearing inasmuch as the he aring had been delay ed twice before at the defendant’s request. The trial court a lso observed that the defense had other avenues to raise t he resul ts of new s cientifi c evidence should they prove he lpful to the

defenda nt. 4
In his brief to t his court, the defendant makes various factual asse rtions about the results of the te sts and how the results affected

the co-defendant’s prosecution. We decline to ac cept or consider these unsupported assertions because couns el’ s appellate recitations of fact and argume nts are no t evidence. See, e.g., State v. Burton , 751 S.W.2d 440, 450 (Tenn. Crim. App. 1988). The resu

lt is that, o n appea

l, the def endant ha s failed t

o show tha

t the tria l c ourt err

ed in deny ing a co ntinuanc e of the h earing on the motio n for new

trial.
VII. Consecutive Se

ntencing
The defendant’s final complaint is that consecutive senten cing is e xcessive and unfairly punitive in his case. The trial court found that consecutive sentencing was war rantedon the grounds that t

he d efendant is a dangerous offe nder and that he was on probation at the time he committed the instant offenses. The trial court imposed 25-y ear sentences for the e spe cially a ggravated

kidnapping and aggra

vated rape convictions and a twelve-y ear sentence

for th e aggravated

sexual battery conviction; these sente nces were ordered to be ser ved concurrently

to each other but consecutively

to the life sentence for first-degr ee murder.
When there is a challenge to the leng th, range, or manne

r of ser vice of a sentenc e, it is incumbent on this court to review the record de novo with a presumption that the determinations made by the trial

court are correct. Tenn. Cod e Ann. § 40 -35-401( d) (1997) . This pre sumption is “c o nditioned upon the affirmative showing in the record that the tria l court considered the sentencing p rinciples and all relevant facts and circumstance s.” State v. Ashby , 823 S.W.2d 166, 16 9 (Tenn

. 1991). “The burden of s howing that the sentence is improper is upon the appellant.” Id . In the event the rec ord failsto demonst rate the require d conside

ration by the tr ial court, r eview of the sentence if

pu re ly de novo

. Id . If appellate re view, however, re flects tha t the tria l court pr operly considered

all relevant factors and it s finding s of fac t are ad equatel y su pported b y th

e recor d, this-16-

court must affirm the sentence, “even if we would ha ve pref erred a dif ferent result.” State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

When a d e fendant is convicted of multiple offenses, the trial court must determine if the sentences shall be served consecutively or concurrently

. Tenn. Code Ann. § 40-35-115 (1997). Consecutive sentencing may be imposed in the discretion of the trial court upon a determination that the offender meets at least one of the following criteria: (1) The defendant is a professional criminal who has knowingl

y devoted such defendant’s life to criminal acts as a major source of livelihood; (2) The def

endant isan offe

nder who se reco

rd of cr iminal ac tivity

is extensive; (3) The d efenda

nt is a dan gerou s mentally abnorma l person s o declared by

a competent psyc

hiatrist . . . ; (4) The d efenda nt is a dangerous offender whose behavior indicates littleor no regard for human life, and no he sitation about committing a crime in which the risk to human life is high; (5) The defendant

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

. Tenn. Code Ann. § 40-35-115(b)(1)-(7) (1997). In addition to these criteria , consecutive sentencing is su bje ct to the general sentencing principles providing that the length of a sentence should be “justly deserved in relation

to the seriousness of the offense” and “no g reater than that

deserved for the offense

committed.” Id . §§ 40-35 -102(1) , -103(2) (1997); see State v. Imfel d , 70 S.W.3d 698, 708 (Tenn. 2002). Moreover, in State v. Wilkerson , 905 S.W.2d 933 , 937-38 (Tenn. 1995), the supreme court ar ticulate d t wo additional requirements for consecutive sentencing under the dangerous offender category ; the trial court must find consecutive sentences are reasonably

related to the severity of the

offenses committed and are necessar y to protect the

public from further criminal conduct. See Imfe ld , 70 S.W.3d at 708 (need for the ad ditio nal Wilkersonfindings arises in part because “dangerous of

fender” category

“is the most subjective and hardest to apply ”).
No evidence was presented at the defendant’s sentencing h earing , and neit her the s tate nor the defe ndant re gister

ed any objectio ns to the pr esent ence in vesti gation report . At t he hear ing,-17-

the defendant conceded that he committed the instant offens e s while on probation for a previous fe lony offense. As for the defendant’s status as a “dang erous offender,” the trial court made particularizedfinding s. The tri al court cata logued the brutal injuries to the victim, which demonstratedthat the defendant had no regar d for human life and no hesitation about committing a crime when the risk to human life was high. The trial court stated, “These are some of the mos t atrocious, cruel offenses I ’ve seen since I ’ve been sitting in this position,” from which the trial court concluded

that consecutive sentencing was nece ssary to protect the public

and rea sonably

related to the seve rity of the of fenses.
In our opinion, the record and the defendant’s concession of his probationary status at the time of

the Westbr

ooks offense s provide ample support for the imposition of consecutive sentenc ing, an d we aff

irm the tr ial cour t’s ruling s.
Ac co rd in gl y, and for the reasons set forth above, we a ff irm the judgments and sentenc ing of th

e trial c ourt.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE