IN THE SUPREME COURT OF TENNESSEE

November 4, 2020 Session1

STATE OF TENNESSEE v. MICHAEL RIMMER

Automatic Appeal from the Court of Criminal Appeals

Criminal Court for Shelby County

Nos. 98-01033, 98-01034 Chris Craft, Judge

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No. W2017-00504-SC-DDT-DD

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This is a direct appeal in a capital case. The defendant had one prior trial. In the second 

trial, a Shelby County jury found the defendant guilty of first degree premeditated murder, 

murder in the perpetration of robbery, and aggravated robbery. He was sentenced to death 

plus a consecutive eighteen years of incarceration. The Court of Criminal Appeals 

affirmed the convictions and the sentence. We now consider the appeal on automatic 

review pursuant to Tennessee Code Annotated section 39-13-206(a)(1). We hold the 

following: (1) based on sequential jury instructions given in the first trial, the first jury did 

not have a full opportunity to consider the felony murder count, so double jeopardy 

principles did not bar retrial on the felony murder count; (2) alleged prosecutorial 

misconduct in the first trial did not trigger double jeopardy protections and did not bar

retrial of the defendant; (3) because the State did not have a duty to preserve the defendant’s 

vehicle, the trial court did not err in denying the defendant’s motion to suppress DNA 

evidence from the vehicle; (4) the trial court did not err under Tennessee Rule of Evidence 

404(b) in admitting evidence of the defendant’s prior convictions for rape and assault of 

the victim; and (5) the trial court did not err under Rule 404(b) in admitting evidence of

the defendant’s escape attempts and corroborating evidence of homemade shanks in his

cell. We hold further that imposition of the death penalty is not arbitrary, given the 

circumstances of the crime; that the evidence supports the jury’s finding that the State 

proved one aggravating circumstance beyond a reasonable doubt; that the evidence 

supports the jury’s conclusion that the aggravating circumstance outweighed any 

mitigating circumstances beyond a reasonable doubt; and that the sentence of death is 

neither excessive nor disproportionate to the penalty imposed in similar cases. As to the 

remaining issues raised by the defendant, we agree with the conclusions of the Court of 

Criminal Appeals and attach as an appendix to this opinion the relevant portions of the 

intermediate court’s decision. We affirm the convictions and the sentence. 

 

1 We heard oral argument through videoconference under this Court’s emergency orders restricting 

court proceedings because of the COVID-19 pandemic.

04/16/2021
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Tenn. Code Ann. § 39-13-206(a)(1) (2018) Appeal; Judgment of the

Court of Criminal Appeals Affirmed

HOLLY KIRBY, J., delivered the opinion of the court, in which JEFFREY S. BIVINS, C.J.,

CORNELIA A. CLARK, and ROGER A. PAGE, JJ., joined. SHARON G. LEE, J., filed a 

concurring opinion.

Paul Bruno (on appeal and at trial), Murfreesboro, Tennessee, and Robert Parris (on appeal 

and at trial), Memphis, Tennessee, for the appellant, Michael Dale Rimmer.

Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor 

General; Andrew C. Coulam, Senior Counsel; Pamela Anderson and Rachel Sobrero, 

District Attorneys General Pro Tem, for the appellee, State of Tennessee.

Michael J. Passino, Nashville, Tennessee, for Amicus Curiae Amnesty International, 

Nashville. 

OPINION

FACTUAL AND PROCEDURAL HISTORY

On February 8, 1997, the victim in this case, Ricci Lynn Ellsworth, disappeared 

from the Memphis Inn in Shelby County. She left behind her purse, her wedding band, her 

car, and a chaotic and bloody crime scene. Although the victim was a dependable 

employee and devoted wife, grandmother, mother, and daughter, neither her employer nor 

her family ever heard from her again. The victim’s body was never located, and she is 

presumed dead.

The lengthy procedural history in this case includes two trials and three sentencing 

hearings. At the first trial in 1998, a jury convicted the Defendant, Michael Dale Rimmer, 

of first degree murder, aggravated robbery, and theft of property. The Defendant received

a sentence of death. The State had also charged the Defendant with first degree felony 

murder during the perpetration of a robbery (felony murder), but the jury did not return a 

verdict on that count. 

On appeal, the Court of Criminal Appeals affirmed the convictions, but it reversed 

the death sentence due to numerous errors related to the aggravating circumstances 

considered by the jury. It remanded the case for a new sentencing hearing. See State v. 

Rimmer, No. W1999-00637-CCA-R3-DD, 2001 WL 567960, at *23 (Tenn. Crim. App. 

May 25, 2001). 
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On remand, a second jury imposed the death penalty. On direct appeal, the Court 

of Criminal Appeals affirmed the sentence. State v. Rimmer, No. W2004-02240-CCA-R3-

DD, 2006 WL 3731206, at *28 (Tenn. Crim. App. Dec. 15, 2006), perm. app. granted,

(Tenn. Aug. 13, 2007). This Court affirmed the sentence as well. See State v. Rimmer, 

250 S.W.3d 12, 18 (Tenn. 2008). 

The Defendant then sought post-conviction relief, alleging ineffective assistance of 

counsel and prosecutorial misconduct. The post-conviction trial court concluded the 

Defendant was not entitled to relief on his claims of prosecutorial misconduct. However, 

it granted post-conviction relief on the ineffective assistance of counsel claims and ordered

a new trial and sentencing hearing. The State did not appeal.

In advance of the Defendant’s second trial, he filed a number of pretrial motions. 

They included a motion to dismiss the felony murder count, which the trial court denied; a 

motion to suppress DNA evidence, which the trial court partially denied; and a motion to 

suppress Rule 404(b) evidence, which the trial court partially denied.

The second trial commenced on April 28, 2016.

2 The jury heard evidence that, years 

earlier, the Defendant and the victim had been in a tumultuous romantic relationship.

Though it ended, they remained in contact. In 1989, the Defendant assaulted and raped the 

victim inside her home. He eventually pled guilty to burglary in the first degree, aggravated 

assault, and rape. He received a lengthy prison sentence. According to the victim’s 

daughter, Tracye Ellsworth Brown,3and the victim’s mother, Marjorie Floyd, the victim 

was too forgiving toward the Defendant after the rape. She continued to interact with him 

and even visited him in prison.

During his incarceration for rape and assault of the victim, the Defendant met 

William Conaley. Mr. Conaley was a childhood friend of the victim’s niece. The 

Defendant learned the victim and her son had received a sum of money in settlement of a 

personal injury claim. The Defendant was angry at the victim and felt entitled to a portion 

of the settlement. The Defendant told Mr. Conaley to tell the victim’s niece to let the victim 

know that if he, the Defendant, did not get the settlement money to which he felt entitled, 

he would kill the victim upon his release from prison. Mr. Conaley relayed the message 

by letter and in person. According to Mr. Conaley, whenever the Defendant talked about 

the victim, he would get agitated, sweat, work himself up, wring his hands, and saliva 

would build up in the corners of his mouth.

 

2 The facts and evidence summarized in this opinion are from the April 2016 trial. 

3 The victim’s daughter is also referred to in the record as Tracye Ellsworth, and at times her first 

name is spelled “Tracy” or “Tracey.”
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During this same incarceration, the Defendant also met Roger Lescure. In 1996, 

while he and Mr. Lescure were working together in the prison, the Defendant talked to Mr. 

Lescure about the victim and said he was going to “kill the funky bitch” after his release. 

The Defendant described to Mr. Lescure how to get rid of dead bodies: “Put them in a 

barrel and put lime in them, it eats the bones and all up.” Mr. Lescure said that, when the 

Defendant talked about killing the victim, he got “high strung” and “into talking about it” 

and would “sort of foam at the mouth.”

After he was released from prison, the Defendant and the victim continued to 

interact. One afternoon, the Defendant’s father came home from work to find the 

Defendant changing the oil in the victim’s vehicle. The Defendant’s father got angry that 

the Defendant was maintaining a relationship with the victim because he felt it would lead 

to more problems. 

In 1997, the Defendant worked at Ace Automotive Collision Center4 with Howard 

Featherston5and James Wilcox. During that time, he commonly wore a baseball cap. 

According to Mr. Featherston, the Defendant also had a tattoo on his arm.

6

In addition to 

working with Mr. Featherston at the collision center, the Defendant worked on vehicles 

with Mr. Featherston at Mr. Featherston’s home. At the time, Mr. Featherston owned a 

maroon Honda Accord. On January 4, 1997, the Accord was driven away from Mr. 

Featherston’s home and was never returned.7

On Friday, February 7, 1997, the Defendant did not have enough money for gas. 

His coworker at the Collision Center, Mr. Wilcox, followed the Defendant to the gas station 

and put five dollars’ worth of gas in his car so the Defendant could cash his February 6, 

1997 paycheck. On that day, Mr. Wilcox recalled, the Defendant was driving a maroon 

Honda. He expected the Defendant to repay him the five dollars when he came to work 

the following Monday, since the Defendant was scheduled to work the week of February 

10. However, the Defendant never returned to the Collision Center, not even to pick up 

his paycheck for the shift he worked on February 7.

 

4 At trial, the Defendant’s prior employer was also referred to as Adesa. 

5 The last name of Howard and Cheryl Featherston is at times referred to in the record as 

“Featherstone.” 

6 The Defendant revealed tattoo-free arms to the jury at trial.

7

In addition to the charges at issue, the grand jury indicted the Defendant for theft of Mr. 

Featherston’s maroon Honda. This charge was originally consolidated with the Defendant’s indictments 

for aggravated robbery and first degree murder. Prior to the second trial, on the Defendant’s motion, the 

trial court severed the theft charge, so the jury in the second trial did not hear proof related to it.
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Also on Friday February 7, after he left work at the Collision Center, the Defendant 

went to the home of his brother, Richard Rimmer, in Mississippi. He drank some beer and 

talked about a date he had planned later that night.

The same night, the victim left the home she shared with her husband, Donald 

Eugene Ellsworth,8for her work as a night clerk at the Memphis Inn. She was scheduled 

to work from 11:00 p.m. to 7:00 a.m. The victim parked her vehicle in the motel parking 

lot and began her shift, working in an enclosed office in the motel lobby behind a locked 

door. Her interactions with guests were from behind protective glass, and monetary 

transactions occurred via a drawer under the glass window; money and credit cards were 

placed in the drawer and slid under the glass. In the same vicinity, the motel had change 

and vending machines.

Devata Brown was a guest at the Memphis Inn the night of February 7, 1997. She

described the motel as being in a “high traffic” location where drug dealing and prostitution 

may have occurred. 

Around 1:40 a.m. that same night, another motel guest, Dr. Ronald King, went to 

the vending machine area. He noticed a maroon car pull up and park close to the night 

entrance. A white man wearing a baseball cap with a scraggly beard and unkempt hair 

walked into the area behind him and approached the motel’s check-in area. The night clerk 

appeared to know this individual and walked to the night entrance door toward him. Once 

Dr. King finished getting his snacks from the vending machine, he nodded to the desk clerk 

and left.

Another guest at the Memphis Inn the evening of February 7, Natalie Doonan, came 

downstairs to buy cigarettes from a vending machine. She noticed a female night clerk 

working at a counter behind glass. Around 2 a.m., one or two men walked into the motel 

lobby where the night clerk’s office was located; one of the men had a dark complexion 

and wore his hair in a ponytail. Ms. Doonan finished buying her cigarettes and went back 

to her room. About thirty minutes later, Ms. Doonan called the night clerk to request a 

wake-up call. She let the phone ring for ten to fifteen minutes but never got an answer. 

Ms. Doonan later identified one of the men she saw in the motel lobby as Billy Wayne 

Voyles.

Around 1:30 or 2:00 a.m. that same night, James Darnell and Dixie Presley drove 

to the Memphis Inn. Mr. Darnell parked close to the night entrance. He saw a man with a 

beard and wearing a baseball cap standing behind a maroon Honda parked about four

spaces away. In his arms, the man cradled something thick that had been rolled up in a 

 

8 The trial transcript identifies the husband as “Eugene Donald Ellsworth,” but he states in his 

testimony that his name is Donald Eugene Ellsworth. 
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blanket. When the man placed the item in the trunk of the car, the vehicle sank from the 

weight of the object.

As Mr. Darnell walked toward the night entrance, the man began walking quickly 

behind him. They approached the night entrance at the same time, so Mr. Darnell opened 

the door, said “after you,” and let the man go through the door first. As he did, Mr. Darnell 

noticed the man smelled like alcohol and had blood on his hands. Mr. Darnell walked in 

behind the man and saw the night clerk’s door wide open. As Mr. Darnell walked toward 

the night clerk’s window, he saw another man standing on the other side of the glass 

pushing cash out through the drawer under the window. The other man also had blood on 

his hands. Mr. Darnell quickly turned around and left.

Mr. Darnell later identified a photo of Billy Wayne Voyles as one of the men at the 

Memphis Inn that night. Mr. Darnell could not positively identify the Defendant’s photo

from a photo lineup. 

During that time, Raymond Summers was a yard master with CSX Transportation 

(“CSX”). Under an agreement between CSX and the Memphis Inn, CSX employees stayed

at the motel during layovers. Mr. Summers was working early the morning of February 8, 

and the CSX crew staying at the motel was needed back at the train yard for departure. He 

called the Memphis Inn night desk around 3:00 a.m. to get in touch with the crew members. 

When the clerk did not answer, Mr. Summers drove to the motel. 

When he arrived, Mr. Summers saw that the night entrance double doors, typically 

closed and locked, were open. He walked into the office and noticed the register drawer 

was out and papers were scattered on the floor. He called out and got no answer. He then 

walked toward the sound of running water. As he went into the employee bathroom, Mr. 

Summers saw water running in the bathroom sink, blood on the sink basin, and that the 

toilet seat had been removed. There was blood on the toilet and a bloody towel on the 

floor. 

Mr. Summers left immediately to find help. As he was driving to a nearby service

station to notify the police, he saw two Shelby County Sheriff’s Office (“SCSO”) patrol 

cars leaving a nearby parking lot. He got the officers’ attention and told them something 

strange had happened at the Memphis Inn. They went to the scene.

When they arrived at the motel, the SCSO officers secured the scene and contacted 

Memphis Police Department (“MPD”) dispatch. SCSO officers then notified the motel 

manager, Linda Spencer, that there was no night clerk at the motel. Ms. Spencer resided 

in an apartment on the property. She walked to the front of the motel and noticed the night 

entrance door, normally locked, was open. She went into the employee bathroom and saw 
- 7 -

blood all over the floor and walls. The toilet lid had been ripped from the toilet. There 

was an out-of-place glass on the sink, a flashlight in the sink, and a crack in the sink. Once 

MPD officers arrived, the SCSO officers left. 

Ms. Spencer and the MPD officers looked for the victim inside the motel, to no 

avail. The victim’s car, however, was still parked in the same spot in the parking lot where 

it had been all night. Ms. Spencer noticed that all the money had been taken from the 

register, as well as the money in the lockbox. In total, about $600 was missing. There was 

blood on the floor of the office and a trail of blood leading from the office to the bathroom. 

There was a towel on the office floor that did not belong there, and about four or five sets 

of sheets were missing from a cabinet in the office. The motel office had a security camera, 

but because there was no videotape in it, Ms. Spencer did not check to see if anyone had 

tampered with it.

MPD officers took photographs of the crime scene, dusted for fingerprints, collected 

and tagged evidence, and completed paperwork. The items they collected included the 

victim’s wedding band, which she normally wore every day. All items with blood on them

were gathered as evidence. Samples were taken from blood on the bathroom floor, the top 

of the commode, the frame of the door to the snack room, the frame of the door to the west 

exit, and the door facing the security window. The lid of the toilet was covered in blood 

and damaged as though it had been used to beat somebody; the toilet lid and a few other 

items were chemically processed for fingerprints.

Mark Goforth worked as a security guard at the neighboring Super 8 Motel. Like 

Ms. Brown, Mr. Goforth described the Memphis Inn as a place known for prostitution and 

drugs. In his work as a security guard, Mr. Goforth often walked the perimeter of the Super 

8 property, and in doing so he had gotten to know the victim. Working early the morning 

of February 8, Mr. Goforth saw MPD officers at the Memphis Inn, so he walked over to 

the motel. Once he got there, he observed a lot of blood, including a bloody handprint on 

the counter. Mr. Goforth briefly spoke with the officers and left. 

While working at the Super 8 Motel, Mr. Goforth sometimes saw a white man in 

his early thirties with brownish-blonde hair and stubble at the Memphis Inn talking and 

laughing with the victim inside her office. He last saw the man a couple days before the 

victim’s disappearance.

Mr. Goforth was shown a composite sketch of two suspects, one wearing a baseball 

hat and one without a hat. Mr. Goforth identified the man in the hat as a construction 

worker who frequently stayed at the Memphis Inn while in town to work on a nearby 

highway construction project.
- 8 -

Around 2:30 a.m. the night of the victim’s disappearance, MPD officers went to the 

victim’s home and awakened her husband, Donald Eugene Ellsworth, to see if the victim

was there. He told them he had not seen the victim since she left for work earlier that night, 

so the officers asked him to give a statement. Mr. Ellsworth then accompanied the officers 

first to the crime scene, where he stayed in the patrol car, and then to the station. While at 

the crime scene, he noticed the victim’s car in the parking lot.

The morning of February 8, the Defendant returned to the home of his brother, 

Richard Rimmer. He was driving a wine-colored Honda Accord.9 The brother’s home 

was in a wooded area, close to a pond. When he arrived, the Defendant was wearing muddy 

white tennis shoes; Richard Rimmer made him remove the shoes and wash them in the 

bathroom. The Defendant seemed tired and unfocused, “like he was out in left field.” The 

Defendant asked his brother Richard if he could lay on his floor to rest; Richard said no

and asked him to leave.

The Defendant’s brother Richard worked as a carpet and upholstery cleaner. The 

Defendant asked his brother to clean the interior of the Honda, including mud on the 

floorboard and blood in the backseat. The Defendant explained the blood resulted from 

his having had sex in the backseat with a woman who was menstruating. Richard Rimmer 

looked inside the car and thought part of the back seat looked dark, like there could have 

been a bloodstain. He noticed mud in the car and a new-looking shovel on the rear 

floorboard. When the Defendant left his brother’s house, he left the shovel leaning against 

the house.

That night, Richard Rimmer saw news reports on the victim’s disappearance. He 

recalled the condition of the Defendant’s car and panicked because he suspected his brother 

was involved. At the suggestion of their father, Richard Rimmer put a towel on the handle 

of the shovel the Defendant had left and disposed of it in a nearby dumpster.

Law enforcement investigation never yielded any indication the victim was still 

alive. Officers conducted at least twenty searches for the victim in the vicinity of the 

property rented by the Defendant’s brother, in Mississippi around Plantation Point, near 

Arkabutla Lake, and in Arkabutla Lake itself. Her body was never found.

Mary Ann Whitlock also saw news reports about the disappearance of the victim, 

and she saw the same composite sketches Mr. Goforth was shown. She recognized the 

 

9 Several weeks earlier, the Defendant told his brother that the victim bought the Honda for him 

but did not want her husband to know. At that time, the Defendant enlisted his brother to help him “pick 

up” the car from the home of a Collision Center coworker who was supposedly storing it for the Defendant. 

They pulled up to the coworker’s home with no lights on and took the car without going to the house, 

purportedly so they would not “disturb” the coworker’s wife. 
- 9 -

men as Billy Wayne Voyles and Raymond Cecil; Ms. Whitlock knew both because they 

were all from the same small town. She identified Mr. Voyles as the suspect in the baseball 

cap. She reported this information to law enforcement. 

In early March, Michael Adams was working as a road deputy on traffic patrol in 

Johnson County, Indiana. He stopped the Defendant for speeding. The Defendant was 

driving a maroon Honda with a license plate that matched the plate on the maroon Honda 

owned by Mr. Featherston. When he ran the plate numbers, the deputy realized the MPD 

had an interest in the vehicle as part of an ongoing investigation. He contacted the Johnson 

County Sheriff’s Office, and an officer and an evidence technician went to the scene. The 

Defendant was taken into custody. 

The Johnson County Sheriff’s Office contacted the MPD, and MPD detectives flew 

into Indiana that night. In the meantime, the Johnson County evidence technician followed 

a wrecker towing the Honda to the intake bay at the sheriff’s office and secured the vehicle 

inside the bay.

The next morning, MPD detectives watched as the Johnson County evidence 

technician processed the maroon Honda. The technician found reddish-brown stains in the 

back seat of the vehicle. A presumptive blood test confirmed the substance on the back 

seat was blood.

The evidence technician took ninety-six photographs of the vehicle and its contents. 

The photographs included images of: the interior left driver’s side door; the right front 

floorboard; the interior trunk lid; the contents of the trunk; the rear compartment of the 

back seat; blood stains on the fabric upholstery in the back seat; a hole in the fabric 

upholstery in the back seat cut to obtain a sample for use in the presumptive blood test; a 

second hole in the fabric upholstery toward the bottom of the back seat, also cut for the 

presumptive blood test; and a baggie and envelope containing the presumptive blood test.

The evidence technician also removed and inventoried the contents of the maroon 

Honda. Each item removed was either sealed and stored in envelopes and paper bags or 

placed in the trunk of the vehicle, which was sealed prior to transport to Memphis. The 

individually secured items included: a white towel with red stains; three additional white 

towels; various receipts from Mississippi, Florida, Missouri, Montana, Wyoming, 

California, Arizona, and Texas dated February 8 through March 3, 1997; water; Holiday 

Inn stationery and other miscellaneous papers; maps; duct tape with hair attached; a plastic 

spray bottle; a glass jar; a pillow with blood spatter; a black baseball cap; a pair of Spalding 

tennis shoes; faded blue jeans; and a steel hammer. All of these items were released to the 

MPD detectives prior to their return to Memphis. The Johnson County Sheriff’s Office 

also released the items on the Defendant’s person at the time of his arrest, including a men’s 
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watch.

Once the search of the maroon Honda was completed, the vehicle was resealed. 

Arrangements were made to transport the vehicle to Memphis. It was loaded onto a tow 

truck, covered with a tarp, and driven to Memphis, where an MPD officer met the wrecker 

and securely stored the vehicle in the MPD’s crime scene tunnel until it could be 

transported to the Tennessee Bureau of Investigation (“TBI”) lab in Nashville.

The MPD detectives flew back to Memphis. They carried the individually sealed 

items taken from the vehicle onto the plane and stored the evidence in the cockpit for the 

duration of the flight. The evidence was then stored in the evidence room of the MPD 

homicide office until it was transmitted to the TBI for DNA analysis. 

A few days later, the MPD’s case coordinator asked the TBI to run a DNA 

comparison of the blood samples collected from the hotel to those obtained from the 

vehicle. The maroon Honda was also sent to the TBI lab in Nashville for processing. An 

MPD detective supervised the transport of the vehicle by wrecker from Memphis to the 

TBI lab in Nashville. At the same time, he transported the evidence previously taken from 

the vehicle to the TBI for testing. When he arrived, the detective signed over the vehicle 

and the box of evidence to the TBI experts. He asked them to vacuum the vehicle and 

collect hair and fiber samples to be sent to the FBI. In addition to the maroon Honda, the 

evidence deposited with the TBI included the following items collected from the vehicle 

and the Defendant’s person after the stop in Indiana: a blood-soaked patch of upholstery 

cut from the back seat of the vehicle; a swab of blood from the back seat of the vehicle; a 

pair of K-Swiss tennis shoes; a pair of faded blue jeans; a steel hammer; a pillow with 

blood spatter; a white towel with blood spatter; a white towel with stains; a roll of duct tape 

with hair on it; a plastic spray bottle with clear liquid contents; a glass jar; and a men’s 

watch with stains.

After the Honda arrived at the TBI, agents processed it for microanalysis. In doing 

so, an agent took photographs, inventoried the contents of the vehicle, vacuumed the 

vehicle to collect any hair or fiber, and took samples of the seats and carpets. At that point, 

the agent did not analyze any hair or fibers because she did not have anything to compare 

to them. Instead, she preserved the evidence collected so a comparison could be done later 

if needed.

Another TBI agent tested the items in the two sealed boxes received from the MPD 

for the presence of blood. The towels from the crime scene and a pillow in the maroon 

Honda both tested positive for the presence of human blood. The test for blood was 

negative as to the hammer, another towel in the vehicle, and the watch.
- 11 -

The TBI agent also conducted a serological analysis on the maroon Honda. She 

inspected the vehicle for blood stains, took photographs of the stains, tested the stains for 

the presence of blood, and then cut samples or swabbed the areas so she could conduct a 

human blood confirmation test. The agent also made four sketches of the interior of the 

vehicle to document her findings. The buckle on the back-seat passenger-side seatbelt 

tested positive for the presence of human blood. The inside of the rear driver-side door 

had stains that tested positive for the possible presence of blood, but the agent did not 

remember conducting a follow-up test to determine whether it was human blood. The 

center back seatbelt buckle tested positive for the possible presence of blood, but the agent 

did not conduct a follow-up test to determine whether it was human blood. The back seat 

of the vehicle had blood stains, so the agent cut a large square of upholstery from the center 

of the back seat; it tested positive for the presence of human blood. The agent 

memorialized her findings in a report. 

Once the analysis was complete, MPD released the maroon Honda to Mr. 

Featherston because the police department did not have the storage capacity to keep it 

longer. Mr. Featherston viewed it at the impound lot and saw that the liner inside the trunk 

was missing, the floor mats were missing, and there were stains in the back of the car. The 

items found in the car when the Defendant was pulled over in Indiana did not belong to 

Mr. Featherston. When the vehicle was in his possession, Mr. Featherston said, it was clean

and did not have stains on the upholstery.

From the evidence taken from the maroon Honda and collected at the crime scene, 

an FBI forensic examiner determined the DNA of the blood at the crime scene matched the 

blood found inside the vehicle. The forensic examiner also compared the DNA from the 

blood collected at the scene and from the vehicle to the DNA of the victim’s mother, 

Marjorie Floyd. The examiner determined the blood was consistent with belonging to a 

daughter of Ms. Floyd. The DNA type from the blood on the towel collected from the 

scene matched the DNA type extracted from the victim’s pap smear sample. To obtain 

DNA samples from the victim, investigators collected the victim’s toothbrush, sweatpants, 

and makeup sponge from her home. The DNA extracted from these items was consistent 

with the DNA from the blood at the motel and inside the maroon Honda.

After his arrest for the murder of the victim, the Defendant participated in at least 

three escape attempts. The Defendant was initially incarcerated in Franklin, Indiana. 

While there, he shared a cell with James Douglas Allard, Jr. and told Mr. Allard about his

various plans to escape the jail. By the time the Defendant approached Mr. Allard about 

escape plans, the Defendant had taken concrete steps toward attempting escape by cutting 

clips along the bottom of the fence in the prison recreation yard with large nail clippers so 

the fence could be lifted away from the ground. The Defendant also talked with Mr. Allard 

about escaping through a window, escaping through the block wall inside the cell, killing
- 12 -

a guard, or taking a guard hostage and walking out the front door of the jail.10 According 

to Mr. Allard, the Defendant kept “shanks,” homemade knives made of flattened bucket 

handles, in his cell. Authorities later found shanks hidden in the Defendant’s cell.

Initially, Mr. Allard did not want to hear anything about the Defendant’s plans for 

escape. Over the course of several weeks, in an apparent attempt to gain Mr. Allard’s 

confidence, the Defendant talked to him a number of times about how he had murdered the 

victim. The Defendant told Mr. Allard he murdered his “wife” at the motel where she was 

employed. At one point, he told Mr. Allard he shot the victim twice; then he said he beat 

her in a back room in the motel behind the service desk. The Defendant described the back 

room as “pretty bloody” after the beating. The Defendant told Mr. Allard he took the 

motel’s security camera tape, erased it, put the victim’s body in his car, and buried her in 

a wooded area close to a lake or pond. Later, when the Defendant received a letter 

informing him of the MPD’s search for the body, he told Mr. Allard he could not believe 

the body had not been located. 

During his conversations about the victim’s murder, Mr. Allard said, the 

Defendant’s countenance changed. He became a “different person” from his everyday 

demeanor. His eyes got “real shiny,” he started sweating a lot, and he frequently went to 

the sink to wash his hands. 

On October 23, 1997, while awaiting his first trial for murdering the victim, the 

Defendant made a second attempt to escape incarceration. The Defendant was one of four 

prisoners being transported in a federal prisoner transport van. All the prisoners were held 

in cages inside the van. When the drivers stopped to eat lunch, they left the keys in the 

ignition, the engine running, and a loaded shotgun inside the van. The Defendant managed 

to get out of his cage. He released the other inmates and drove off in the van.

Officers with the Bowling Green, Ohio police department spotted the prisoner 

transport van. They initiated a traffic stop, but the Defendant did not stop. A high-speed

chase ensued. For approximately thirteen miles, during rush hour, officers from several

jurisdictions pursued the Defendant, driving at speeds that sometimes reached ninety miles 

an hour. Eventually, a road block forced the Defendant to stop. Officers ordered the driver 

out of the van over a loudspeaker. After a couple of minutes, the Defendant exited the van 

and was taken into custody.

 

10 While incarcerated in the Johnson County Jail, the Defendant reported subpar jail conditions to 

the American Civil Liberties Union of Indianapolis, Indiana, and eventually filed a related civil rights 

lawsuit. At the trial in this case, the Defendant argued his attempt to escape the Johnson County Jail was 

related to poor jail conditions. 
- 13 -

The third escape attempt occurred on October 16, 1998, while the Defendant was

housed in the Shelby County Jail. The Defendant and another inmate used hard objects to 

break the concrete around a second story window; they then removed the window and 

dropped a handmade rope out the opening. When they realized a jail employee had spotted 

them, the Defendant returned to his cell and pretended to be asleep. His cohort inmate 

dove out the window opening.

11

At trial, the State called Jerry Findley as an expert in blood stain pattern analysis. 

To prepare his opinion, Mr. Findley reviewed the crime scene photographs taken on 

February 8, 1997 by MPD officers. Based on the patterns of blood observed in the 

photographs, Mr. Findley opined the victim sustained either five blows with blunt force or 

four blows with a sharp object. Mr. Findley saw no evidence in the photographs that the 

blood stains resulted from a gunshot; instead, he believed they arose from repeated hits 

with a toilet lid, fist, or hammer. The photographs documented a large amount of blood, 

consistent with blows to the head, face, and nose. He acknowledged that, without a body

to examine, he could not know the true placement and extent of the victim’s injuries.

The Defendant called two expert witnesses at trial. The first was Marilyn Miller, 

Ph.D., an expert in crime scene investigation and reconstruction, forensic science and 

serology, and blood spatter pattern analysis. Dr. Miller criticized the quality of the 

photographs taken of the blood at the scene, including the lack of scale and the angle at 

which they were taken. She said it was difficult to conduct an adequate blood spatter 

analysis based on the images in the photographs. From those images, Dr. Miller said, she 

could only opine that blood was shed and could not determine whether a death had 

occurred. As a further complication, the blood was diluted with water in a possible attempt 

to clean; this made it impossible for her to ascertain the quantity of blood present at the 

scene. Dr. Miller agreed with Mr. Findley that there was no evidence the blood stains were 

caused by a gunshot. Dr. Miller also agreed with Mr. Findley that the blood stains on the 

walls of the bathroom could have resulted from either blunt or sharp force. Any object, 

like a fist, the flashlight found in the bathroom, or the lid to the toilet, could have caused 

blunt force injuries to the victim. Dr. Miller maintained there was no way to know whether 

all of the blood came from the same source because not all of it was tested. 

Dr. Miller also criticized the lack of security at the crime scene. There were sixteen 

people present at the scene, she pointed out, which could have resulted in contamination. 

Further, she said the MPD should have processed more of the high-touch areas, such as the 

 

11 Around the same time, a local attorney, Robert Hutton, filed a lawsuit alleging unconstitutional 

conditions in the Shelby County Jail due to gang violence. For purposes of injunctive relief, Shelby County 

admitted the level of violence in the jail violated the Eighth Amendment. At the trial in this case, the 

Defendant presented evidence of the lawsuit and the County’s subsequent admission in support of his 

contention that this escape attempt was related to jail conditions.
- 14 -

cabinet, the purse, and the entrance and exit, for fingerprints. Lastly, Dr. Miller contended 

the MPD should have used amino black or luminal12 to identify the presence of otherwise 

hidden bodily fluids. 

In addition, Dr. Miller found fault with the processing of the maroon Honda. She

testified she was never given the opportunity to see an unobstructed photograph of the back

seat of the vehicle taken while the bloodstains were fresh. She explained it would have 

been helpful to her analysis to see the stains in their entirety. Looking at the hole in the 

back seat where investigators cut the three-inch sample from the upholstery, Dr. Miller 

pointed out that the blood did not soak into the foam under the upholstery. She said this 

indicated weight was not placed on the bloodstain.

According to Dr. Miller, the MPD did not adequately test the trunk of the maroon 

Honda for the presence of blood before it released the vehicle. The liner inside the lid of 

the trunk had been removed, so it could not be examined. Dr. Miller also maintained that

all of the items in the car’s trunk should have been tested for blood, not just the few items 

selected for processing. Also, given the amount of blood at the scene and the apparent

attempt to clean it, she thought there would have been blood in the front seat of the vehicle, 

but there were no positive presumptive tests for any blood on the surfaces she tested in the 

front area. 

Next, the Defendant called an expert in DNA analysis and serology, William Joseph 

Watson, Ph.D. Dr. Watson had no issue with the results of the tests performed in this case 

but felt more testing could have been done. Dr. Watson acknowledged that when the 

original case was worked, it was unusual to have certain types of DNA testing done on 

things like hair. Nevertheless, he pointed out, the TBI collected hair and fiber evidence 

but did not test it. Even though no hair samples from the victim were available, a

comparison test with family members could have been performed. Dr. Watson also noted 

it would have been helpful to determine the type of body hair found in the vehicle, but this 

was not done. 

Dr. Watson opined the presumptive and confirmatory blood tests conducted by the 

TBI did not actually confirm the presence of blood. He explained that the serologist 

conducted a presumptive blood test followed by a test for human protein. Human protein 

can be present from saliva or other bodily fluids, not just blood, said Dr. Watson, so the

positive result for each test did not necessarily mean the substance was human blood. He 

said current tests can determine the presence of blood with more certainty.

 

12 The reference in the transcript to “amino black and luminal” was likely intended to refer to Amido 

black and Luminol. 
- 15 -

Dr. Watson commented on the DNA tests showing that the blood inside the maroon 

Honda could not be excluded as having come from a female offspring of the victim’s 

mother, Ms. Floyd. Dr. Watson agreed with this conclusion but did not agree that the DNA 

from the blood in the car “matched” Ms. Floyd’s DNA. He explained the term “match” 

was not used in this context; it could at best be only a partial match because offspring 

receive DNA from both the mother and father.

Regarding the DNA test performed on the victim’s pap smear, Dr. Watson observed 

that the forensic examiner was limited by the technology available at that time. By the 

time of Dr. Watson’s testimony, there were tests that could use less DNA and obtain a 

better answer. Regardless, he said, when the forensic examiner found two sources of DNA 

in the pap smear, he should not have assumed the second DNA source came from a minor 

contributor such as the victim’s husband. Dr. Watson testified that lab conditions in the 

1990s were often more lax, and he opined that the additional DNA could have instead come 

from contamination such as the examiner’s ungloved hand. Instead of assuming the minor 

contributor was the victim’s husband, Dr. Watson said, the examiner should have tested

the husband’s DNA as well.

Finally, Dr. Watson noted that the State tested items collected from the car for the 

presence of blood twice; because of the intervening appeals and remands, the two tests 

were eighteen years apart. The first time, the tests resulted in positive findings. The results 

were negative when the tests were performed again eighteen years later. Dr. Watson opined 

that the forensic examiner should have looked into the reason for the differing results, and 

he commented that the manner in which the evidence was stored could have been a factor.

After considering all of the evidence, the jury convicted the Defendant of first 

degree premeditated murder, first degree felony murder, and aggravated robbery. The trial 

court merged the first degree premeditated murder and first degree felony murder 

convictions. 

The trial then went into the penalty phase. Against the advice of counsel, the 

Defendant waived his right to present mitigating evidence. The Defendant testified that he 

understood he had the right to put on mitigating evidence, knew a mitigation investigation 

had been done on his behalf, understood the importance of defending against a death 

sentence, but nevertheless freely and voluntarily waived his right to present mitigating 

evidence. The Defendant asked his family and friends not to attend the penalty phase of 

the trial. He directed defense counsel to refrain from giving an opening statement, giving 

a closing statement, or cross-examining witnesses. The trial court noted the Defendant’s 

decisions were not in his best interest but accepted the Defendant’s waiver.

The State first presented victim impact evidence. Previous victim impact testimony 
- 16 -

from the victim’s mother was read to the jury. She testified about the grief she and the 

victim’s children had endured. Their collective grief was compounded, she said, by having 

to mourn the victim’s death without ever having found her body.

The proof then moved to the aggravating circumstances. The first aggravating 

circumstance the State asked the jury to consider was that “[t]he defendant was previously 

convicted of one (1) or more felonies, other than the present charge, whose statutory 

elements involve the use of violence to the person,” as set forth in Tennessee Code 

Annotated section 39-13-204(i)(2). In support, the State introduced evidence of the 

Defendant’s violent criminal history and relied on his prior convictions of assault with 

intent to commit robbery with a deadly weapon in violation of Tennessee Code Annotated 

section 39-2-10413 (case number 85-00448); aggravated assault in violation of Tennessee 

Code Annotated section 39-2-10114 (case number 85-00449); another aggravated assault in 

violation of Tennessee Code Annotated section 39-2-101 (case number 89-02737); and 

rape in violation of Tennessee Code Annotated section 39-2-60415 (case number 89-

02738). In addition, the State asked the jury to consider two other aggravating 

circumstances: the murder was committed for the purpose of avoiding, interfering with, or 

preventing the lawful arrest of the defendant or another, under Tennessee Code Annotated 

section 39-13-204(i)(6); and the murder was knowingly committed, solicited, directed, or 

aided by the defendant while he had a substantial role in committing or attempting to 

commit robbery, under Tennessee Code Annotated section 39-13-204(i)(7).

The jury found one statutory aggravating circumstance beyond a reasonable doubt, 

namely, previous convictions for felonies of which the statutory elements involved the use 

of violence. The jury found beyond a reasonable doubt that this aggravating circumstance 

outweighed any mitigating circumstances. It imposed a sentence of death. 

After a separate sentencing hearing on the aggravated robbery conviction, the trial 

court imposed an additional eighteen years of confinement running consecutively to the 

death sentence. The Defendant later filed motions for judgment of acquittal and for a new

trial. The trial court denied both motions. 

 

13 This statute was repealed in 1989. See generally Act of June 12, 1989, ch. 591, § 1, 1989 Tenn. 

Pub. Acts 1169. Currently, assault offenses are found at Tennessee Code Annotated sections 39-13-101 to 

-116. 

14 See supra note 13.

15 This statute was repealed in 1989. See generally Act of June 12, 1989 § 1. Rape is currently 

found at Tennessee Code Annotated section 39-13-503.
- 17 -

The Defendant then filed a direct appeal to the Court of Criminal Appeals, which 

affirmed the judgment of the trial court. See State v. Rimmer, No. W2017-00504-CCAR3-DD, 2019 WL 2208471 (Tenn. Crim. App. May 21, 2019). This appeal followed. 

ANALYSIS

I. Double Jeopardy

Initially, we consider separate double jeopardy arguments raised by the Defendant 

and by amicus Amnesty International, Nashville (“Amnesty International”). We address 

the Defendant’s double jeopardy argument first.

A. Standard of Review

Questions of constitutional interpretation are reviewed de novo, with no 

presumption of correctness afforded to the conclusions of the trial court. State v. Feaster, 

466 S.W.3d 80, 83 (Tenn. 2015).

B. Defendant’s Motion to Dismiss

The Defendant asserts the trial court erred by denying his motion to dismiss the 

felony murder charge on double jeopardy grounds because the jury verdict in the first trial 

operated as an implied acquittal of the felony murder charge. The State counters that 

double jeopardy did not attach because the trial court instructed the jury not to consider 

felony murder if it found the Defendant guilty of first degree premeditated murder. We 

agree with the State.

The United States Constitution provides that no person shall “be subject for the same 

offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. Similarly, the 

Tennessee Constitution states that “no person shall, for the same offence, be twice put in 

jeopardy of life or limb.” Tenn. Const. art. 1, § 10. The federal and state prohibitions

against double jeopardy have been construed as providing the same protections; these

include: (1) protection against a second prosecution for the same offense after acquittal;

(2) protection against a second prosecution for the same offense after conviction; and (3) 

protection against multiple punishments for the same offense. North Carolina v. Pearce, 

395 U.S. 711, 717 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794 

(1989); State v. Watkins, 362 S.W.3d 530, 541 (Tenn. 2012).

Often, when a jury considers a multi-count charge and returns a guilty verdict on 

one count but does not return a verdict on the remaining counts, the jury’s silence on the 
- 18 -

remaining counts serves as an implied acquittal on them. Double jeopardy prevents retrial 

on the remaining counts. State v. Burns, 979 S.W.2d 276, 290–91 (Tenn. 1998).

This is not the case, however, when a jury has received sequential or “acquittal first” 

jury instructions, in which the jury is told to consider the lesser counts only if it first finds 

the defendant not guilty of the greater offense. See id. at 291 (citing State v. Arnold, 637 

S.W.2d 891, 895 (Tenn. Crim. App. 1982)). When a jury returns a guilty verdict on a 

greater offense after it has received such an instruction, it does not get a full opportunity to 

consider and return a verdict on the lesser counts. Under those circumstances, if the 

conviction on the greater offense is later overturned due to a procedural technicality, double 

jeopardy does not bar retrial on the lesser-included offenses. See State v. Madkins, 989 

S.W.2d 697, 699 (Tenn. 1999) (noting that after sequential jury instructions, a “verdict of 

guilty as to attempted felony murder necessarily means that the jury did not consider the 

charge of attempted second degree murder,” so on remand, prosecution could proceed on 

that charge); State v. Vann, No. E2009-01721-CCA-R9-CD, 2011 WL 856967, at *8 

(Tenn. Crim. App. Mar. 11, 2011) (noting that with acquittal-first jury instructions, the jury 

would not have deliberated as to the lesser included offenses after it convicted the 

defendant of the charged offense). 

In this case, at the Defendant’s first trial in 1998, the trial court instructed the jury 

as follows:

When you retire to consider your verdict in indictment number 98-

01034, you will first inquire, is the defendant guilty of Murder in the First 

Degree as charged in the First Count of the indictment? If you find the 

defendant guilty of this offense, beyond a reasonable doubt, your verdict 

should be,

“We, the Jury, find the defendant guilty of Murder in the First 

Degree as charged in the First Count of the indictment.”

If you find the defendant not guilty of this offense, or if you have a 

reasonable doubt of his guilt of this offense, you will acquit him thereof and 

then proceed to inquire whether or not he is guilty of Murder in the First 

Degree During the Perpetration of a Robbery as charged in the Second Count 

of the indictment. 16

 

16 Since the Defendant’s 1998 trial, the practice as to sequential jury instructions on counts of first 

degree premediated murder and felony murder has changed. Now, when a defendant faces charges of both 

first degree premeditated murder and felony murder, trial courts have been advised to instruct the jury to 

return a verdict on both charges. If the jury returns a guilty verdict on both, the convictions are merged, as 

they are alternative methods of committing the same offense—first degree murder. See State v. Cribbs, 
- 19 -

Thus, the Defendant’s first jury was given sequential or “acquittal first” jury instructions. 

The jury convicted the Defendant of first degree murder, aggravated robbery, and theft of 

property. Having returned a guilty verdict on the first degree murder count, the jury in the 

first trial did not consider the felony murder count. 

In advance of the second trial, the Defendant filed a motion to dismiss the felony 

murder charge on double jeopardy grounds. In support, the Defendant argued the jury’s 

failure to return a verdict on the felony murder count in the first trial amounted to an 

acquittal, which prevented a second trial on that charge. The trial court denied the motion. 

It noted that the trial court in the first trial gave a sequential jury instruction in which it 

instructed the jury to first render a verdict on the first degree murder charge (Count 1), and 

then on the felony murder charge (Count 2) or a lesser included offense. On this basis, the 

trial court in the second trial concluded that the double jeopardy protections of the United 

States Constitution and Tennessee Constitution did not apply. The Defendant raised this 

issue again in his motion for a new trial, and the trial court denied it for the same reason.

On direct appeal, the Court of Criminal Appeals considered the same issue. It

reached the same conclusion as the trial court:

The jury at the Defendant’s first trial was instructed to consider the 

felony murder charge only if it returned a not guilty verdict for premediated 

murder. A jury is presumed to follow the trial court’s instructions. We 

conclude that in this case the lack of a jury verdict on the felony murder count 

at the first trial was not an implicit acquittal and that double jeopardy 

principles were not violated at the second trial. The Defendant is not entitled 

to relief on this basis.

Rimmer, 2019 WL 2208471, at *9 (citation omitted).

We agree with the lower courts. Based on the sequential jury instructions given in 

the 1998 trial and the subsequent verdict, once the jury found the defendant guilty of first 

degree premeditated murder (Count 1), we presume it stopped its deliberations without 

considering the felony murder charge (Count 2). Thus, the jury in the first trial did not 

have a full opportunity to consider the felony murder count before it rendered its verdict, 

so double jeopardy did not prevent the State from prosecuting the Defendant for felony 

murder in the second trial. See, e.g., Price v. Georgia, 398 U.S. 323, 329 (1970) (holding

double jeopardy prevents retrial on the greater charge when the first jury “was given a full 

opportunity to return a verdict” on the greater charge and returned a verdict on the lesser 

 

967 S.W.2d 773, 788–89 (Tenn. 1998). 
- 20 -

charge instead (quoting Green v. United States, 355 U.S. 184, 191 (1957))). Accordingly, 

we affirm the trial court’s denial of the Defendant’s motion to dismiss the felony murder 

count.

C. Amnesty International Double Jeopardy Argument

Amicus Amnesty International argues the Double Jeopardy Clauses of the United 

States Constitution and the Tennessee Constitution barred the Defendant’s second trial 

because of alleged prosecutorial misconduct in the first trial and sentencings. The State 

argues, and we agree, that the Defendant waived this double jeopardy argument by failing 

to raise it in his motion for new trial and on appeal. See State v. Harbison, 539 S.W.3d 

149, 164 (Tenn. 2018) (“To preserve the double jeopardy issue, [the defendant] had to raise 

it in his motion for new trial and appellate brief.”). Nevertheless, because this is a capital 

case, we conduct a plain error review of this issue. See State v. Odom, 336 S.W.3d 541, 

555 n.9 (Tenn. 2011) (applying a plain error standard of review but noting the issue could 

also be reviewed pursuant to Tennessee Code Annotated section 39-13-206(b)’s mandate

that a court reviewing a capital case “shall first consider any errors assigned and then . . . 

shall review the sentence of death” and the outcome would be the same).17

In order for an appellate court to conclude that plain error has occurred, all of the

following factors must be present: (1) the record must clearly establish what occurred in 

the trial court; (2) a clear and unequivocal rule of law must have been breached; (3) a 

substantial right of the accused must have been violated; (4) the accused must not have

waived the issue for tactical reasons; and (5) consideration of the error is necessary to 

achieve substantial justice. State v. Martin, 505 S.W.3d 492, 504 (Tenn. 2016). Here, the 

retrial of the Defendant did not violate a clear and unequivocal rule of law.

Double jeopardy does not preclude “the government from retrying a defendant who 

succeeds in getting his first conviction set aside, through direct appeal or collateral attack, 

because of some error in the proceedings leading to conviction.” Lockhart v. Nelson, 488 

U.S. 33, 38 (1988); see also State v. Harris, 919 S.W.2d 323, 328 (Tenn. 1996) (“[N]o 

constitutional provision prevents retrial after a reversal for legal error.”). Moreover, 

despite Amnesty International’s arguments to the contrary, prosecutorial misconduct 

prevents retrial only when, through the misconduct, the prosecutor intended to force the 

defendant into moving for a mistrial and succeeded in doing so. State v. Tucker, 728 

S.W.2d 27, 31 (Tenn. Crim. App. 1986). The alleged prosecutorial misconduct in this case 

did not involve forcing the Defendant into moving for a mistrial.18

 

17 The outcome of our review would be the same under Tennessee Code Annotated section 39-13-

206(b).

18 The Defendant alleged that the prosecutor in the first trial committed misconduct by: withholding 
- 21 -

The proper remedy for any alleged prosecutorial misconduct in this case was a new 

trial, which the Defendant requested and received.19 See, e.g., State v. Honeycutt, 54 

S.W.3d 762, 769 (Tenn. 2001) (new trial for ineffective assistance of counsel); State v.

Goltz, 111 S.W.3d 1, 10 (Tenn. Crim. App. 2003) (new trial for prosecutorial misconduct 

that did not involve forcing the defendant into a mistrial). The Defendant is not entitled to 

relief on grounds of double jeopardy.

II. Motion to Suppress DNA Evidence

Next, the Defendant asserts the trial court erred by denying his request to dismiss 

the indictments or suppress DNA evidence collected from the maroon Honda because 

evidence was destroyed when the MPD released the vehicle before the defense had an 

opportunity to inspect it. In response, the State equates the vehicle to a crime scene and

argues the MPD did not have a duty to retain the vehicle for years, particularly when it 

properly collected and preserved the evidence contained inside the car before releasing it. 

Again, we agree with the State. 

A. Standard of Review

To review a trial court’s decision regarding the fundamental fairness of a trial 

conducted despite missing or destroyed evidence, we apply a de novo standard. State v. 

Merriman, 410 S.W.3d 779, 791 (Tenn. 2013). If we conclude the trial would be 

fundamentally unfair without the missing or destroyed evidence, then we review the 

remedy imposed by the trial court for an abuse of discretion. Id. at 791–92. 

B. Ferguson Analysis

The Due Process Clause in the United States Constitution and its counterpart in the 

Tennessee Constitution both give every criminal defendant the right to a fair trial. U.S. 

Const. amend. XIV, § 1; Tenn. Const. art. I, § 8. “To facilitate this right, a defendant has 

a constitutionally protected privilege to request and obtain from the prosecution evidence 

that is either material to guilt or relevant to punishment.” State v. Ferguson, 2 S.W.3d 912, 

915 (Tenn. 1999) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). This right imposes 

a duty on the State to produce all evidence that raises reasonable doubt as to the guilt of 

the defendant. Id. (citing United States v. Agurs, 427 U.S. 97, 110–11 (1976)).

 

exculpatory evidence; destroying exculpatory evidence; filing motions that contained misrepresentations; 

knowingly directing a witness to provide false testimony; and failing to inform the Defendant about a 

possible conflict of interest. As noted above, the post-conviction court rejected these claims.

19 Again, the post-conviction court granted the Defendant relief based on ineffective assistance of 

counsel, not the alleged prosecutorial misconduct.
- 22 -

In Ferguson, the Court considered the course of action to take when allegedly exculpatory 

evidence is lost or destroyed before it is produced to the defense. See id. Ferguson held 

that, as an element of due process, fundamental fairness requires review of the entire record 

to ascertain the effect of the destroyed or missing evidence. Id. at 914. It adopted a

balancing test for determining whether the defendant can have a trial that is fundamentally 

fair in the absence of that evidence. Id. at 917.

Under the Ferguson balancing test, the reviewing court first considers whether the 

State had a duty to preserve the missing evidence. Id. Subject to Rule 16 of the Tennessee 

Rules of Criminal Procedure and other applicable laws, including Brady, the State has a 

duty to preserve potentially exculpatory evidence that cannot be obtained by other 

reasonably available means. Id.; Merriman, 410 S.W.3d at 792. The Ferguson Court 

explained:

Whatever duty the Constitution imposes on the States to preserve evidence, 

that duty must be limited to evidence that might be expected to play a 

significant role in the suspect’s defense. To meet this standard of 

constitutional materiality, evidence must both possess an exculpatory value 

that was apparent before the evidence was destroyed, and be of such a nature 

that the defendant would be unable to obtain comparable evidence by other 

reasonably available means.

2 S.W.3d at 917 (quoting California v. Trombetta, 467 U.S. 479, 488–89 (1984)). 

If the reviewing court concludes the State had a duty to preserve the evidence in 

question and failed to do so, then it must determine whether destruction of the evidence 

violated the defendant’s due process rights. This determination is made by balancing the

following factors: (1) the degree of negligence involved in the destruction or loss of the 

evidence; (2) the significance of the destroyed evidence, considered in light of its probative 

value and the reliability of secondary or substitute evidence that remains available; and (3) 

the sufficiency of the other evidence used at trial to support the conviction. Id.; Merriman, 

410 S.W.3d at 785.

20

 If the reviewing court decides a trial without the evidence would be

fundamentally unfair, the remedies may include dismissal of the charges or a jury 

 

20 In Merriman, we noted that a Ferguson analysis may be conducted pre-trial. We cautioned, 

however, that evidence to be presented at trial is reviewed only to put the missing evidence into context and 

allow the court to craft the appropriate remedy, if necessary. It is not reviewed for the purpose of 

determining the defendant’s guilt or innocence beyond a reasonable doubt. The trial court retains discretion 

to reserve its ruling on a Ferguson motion until the evidence has been presented at trial. Merriman, 410 

S.W.3d at 789–90. In the instant case, because this was the Defendant’s second trial, the trial court was

able to view evidence that had substantially been presented to jurors in the previous trial and reviewed by 

appellate courts. 
- 23 -

instruction explaining how the jury is to consider the lost or destroyed evidence. Ferguson, 

2 S.W.3d at 917.

Ferguson was applied by our Court of Criminal Appeals in State v. Hollingsworth,

in which the intermediate appellate court considered a trial court’s denial of a motion to 

dismiss an indictment. No. E2015-01463-CCA-R3-CD, 2017 WL 111331, at *14 (Tenn. 

Crim. App. Jan. 11, 2017), perm. app. denied, (Tenn. May 24, 2017). In that case, the 

victim’s car was collected as evidence after her death in 1997. The car was processed by 

police and then released to the victim’s family. Id. The defendant was not charged with 

the victim’s murder until 2014, long after the vehicle was released. Id. The defendant

moved for dismissal of the indictment for murder on grounds that the release of the vehicle 

deprived him of the right to a fair trial. The trial court denied the motion. Id.

On appeal, the intermediate appellate court in Hollingsworth first observed that the 

vehicle was not lost or destroyed; the State released it to the victim’s family after 

processing pursuant to police department policy. See id. (explaining that Ferguson does 

not impose a duty on the police to collect evidence in a particular manner). Moreover, 

samples taken from the vehicle as part of the investigation were preserved as evidence and 

available to the defendant for analysis. Id. The appellate court held that the State did not 

have a duty to retain and preserve the vehicle itself, particularly over the many years of 

trial, retrials, and resentencing. Id. at *15.

In the alternative, the Hollingsworth court reasoned that, even if the State had a duty 

to preserve the vehicle, its absence did not deprive the defendant of a fundamentally fair 

trial. Id. The vehicle was released pursuant to an established policy, not through 

negligence or bad faith. Given police department storage limitations, the department was 

not required to hold the vehicle from 1997 until 2014. Id. Moreover, the amount of 

evidence taken from the vehicle and preserved was significant. It included photographs of 

the vehicle’s interior and exterior; photographs and measurements of tire tracks found in 

the defendant’s backyard; samples taken from the vehicle that were tested by the TBI and 

the results of those tests; and samples of foliage taken from the vehicle and the defendant’s 

backyard. In light of all of this evidence, the vehicle itself would not have been particularly 

significant. Id. Finally, the evidence presented at trial was sufficient to convict the 

defendant of second degree murder, so “[e]ven if third party DNA was found inside the 

victim’s car, it would not have explained the other substantial evidence of the [d]efendant’s 

guilt.” Id. In those circumstances, the Court of Criminal Appeals concluded, the 

defendant’s trial was fundamentally fair, so the trial court did not err in denying the 

defendant’s motion to dismiss the indictment. Id.

In the case at bar, the Defendant moved to dismiss the indictments or suppress DNA 

evidence collected from the maroon Honda because the vehicle was released before the 
- 24 -

Defendant had the opportunity to inspect and independently test it. According to the 

Defendant, the fact that no blood from the victim was found in the car’s trunk, even after a 

witness testified he saw someone at the Memphis Inn place a large object in the trunk, 

would have been exculpatory. Depriving him of the ability to inspect and independently 

test the vehicle, the Defendant argued, deprived him of the right to a fundamentally fair 

trial.

In its denial of the motion, the trial court held that the State did not have a duty to 

retain the vehicle. Under Ferguson, the trial court could have stopped there, but it went 

further. The trial court also found that, apart from the cuttings and other items collected 

from the Honda, the vehicle itself constituted material evidence because it “potentially” 

had “exculpatory value” and comparable evidence could not be obtained by other means. 

However, in balancing the three Ferguson factors, the trial court concluded the Defendant 

could receive a fundamentally fair trial in the absence of the Honda. It found the first factor 

weighed in the Defendant’s favor because the release of the vehicle was intentional. 

However, the trial court found in favor of the State as to the other two factors: the 

significance of the lost or destroyed evidence in contrast to the secondary or substitute 

evidence and the sufficiency of the remaining evidence. The trial court noted that the 

evidence from the interior of the car connected the Defendant to the victim’s murder and 

that any exculpatory value potentially gleaned by testing the trunk was speculative. It 

found that the evidence without the vehicle was sufficient for conviction. Under Ferguson, 

then, the trial court held that the release of the maroon Honda did not violate the 

Defendant’s due process rights, so it denied the motion.

The Court of Criminal Appeals likewise concluded that the State did not have a duty 

to preserve the vehicle. Consequently, it found no error in the trial court’s denial of the 

Defendant’s motion to dismiss the indictments or suppress the DNA evidence collected 

from the maroon Honda. Rimmer, 2019 WL 2208471, at *11. The Defendant argued 

further that the trial court erred in declining to give a Ferguson jury instruction concerning 

the State’s release of the vehicle. The Court of Criminal Appeals rejected this argument as 

well on the basis that the State had no duty to preserve the vehicle. Id.

After review of the record, we agree with the lower courts that the State did not have 

a duty to preserve the maroon Honda for later production to the Defendant. The efforts to 

retrieve evidence from the vehicle before its release were thorough and extensive. After 

the Defendant was pulled over in Indiana, Johnson County Sheriff’s Office employees 

searched the vehicle and inventoried evidence in the presence of MPD officers. A positive 

presumptive blood test was conducted and preserved as to at least one of the reddish-brown 

stains in the vehicle’s back seat. Investigators took ninety-six photographs of the vehicle

and its contents, including photographs of the trunk after the inside cover was removed. 

The vehicle and items taken from it were then securely transported for processing, first to 
- 25 -

Memphis and later to the TBI. Once at the TBI, the maroon Honda was photographed, 

inventoried, and vacuumed for hair and fiber samples. Upholstery and carpet samples were 

cut for fiber analysis, and items taken from the vehicle were tested for the presence of 

human blood. Investigators conducted serological analysis of the interior of the vehicle to 

confirm the presence of human blood in the back seat.

The items taken from the vehicle, the bloody patches of upholstery cut from the 

back seat of the vehicle, and the abundant photographs of the vehicle were all preserved

and available to the Defendant for analysis. Under these circumstances, the vehicle itself 

had little apparent exculpatory value, and its release back to the owner did not leave the 

Defendant unable to obtain comparable evidence through the investigatory materials that 

remained available to the defense. See Ferguson, 2 S.W.3d at 917. The State had no duty 

to retain the vehicle. 

In the alternative, even if the State had a duty to preserve the vehicle, the release of 

the maroon Honda back to the owner did not violate the Defendant’s due process rights.

First, there was no negligence involved in the State’s failure to retain the vehicle. Id. As 

in Hollingsworth, the Honda in this case was released pursuant to policy because law 

enforcement authorities did not have the storage capacity to retain it indefinitely. 2017 WL 

111331, at *14.

Second, the vehicle itself had little significance as evidence; the Defendant offers 

only speculation as to the probative value of being able to physically inspect the trunk. Per 

the DNA tests, the blood at the crime scene matched the blood found inside the Honda, and 

both were consistent with being the blood of the victim. The existence of blood of a third 

party or the absence of any blood whatsoever in the trunk would not negate this evidence. 

Finally, the other evidence used at trial was overwhelming. See Ferguson, 2 S.W.3d 

at 917. As summarized above, while incarcerated for rape of the victim, the Defendant 

expressed a desire to kill her. A witness described seeing a maroon Honda parked close to 

the night entrance of the Memphis Inn around 1:40 a.m. the night the victim disappeared, 

and saw a man place something heavy and wrapped in a blanket into the vehicle’s trunk. 

DNA tests determined blood found at the scene and inside the Honda the Defendant drove 

was consistent with that of the victim. Immediately after the victim disappeared, the 

Defendant went to see his brother to get assistance cleaning blood from the Honda’s 

interior, stopped going to work, and embarked on a cross-country trip, leaving behind his 

last paycheck. The Defendant later confessed to the murder in conversations with a fellow 

inmate, complete with accurate descriptions of the crime scene. Finally, the Defendant 

tried to escape custody on multiple occasions. 
- 26 -

Consequently, even if the State had a duty to preserve the Honda, which it did not, 

the release of the vehicle did not result in a fundamentally unfair trial. Accordingly, we

affirm the trial court’s denial of the Defendant’s motion to dismiss the indictments or 

suppress DNA evidence.

III. Rule 404(b) Evidence

The Defendant next asserts the trial court erred under Tennessee Rule of Evidence 

404(b) in admitting evidence of his prior convictions and escape attempts because the 

danger of unfair prejudice outweighed the probative value of the evidence. As a result, the 

Defendant contends, the jury was permitted to convict him based on his bad character rather 

than the circumstantial evidence presented at trial.

In response, the State argues the prior crimes against the victim were relevant to 

establish the Defendant’s motive and intent, and the prior escape attempts indicated the 

Defendant’s consciousness of guilt. It maintains that the related jury instructions 

minimized the prejudicial impact of the evidence. We agree with the State.

A. Standard of Review

The parties agree that, before it admitted the evidence at issue, the trial court 

substantially complied with the procedural safeguards in Rule 404(b), so we review its 

decision for an abuse of discretion. State v. Jones, 450 S.W.3d 866, 891 (Tenn. 2014);

State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). Trial judges abuse their discretion 

when they cause injustice to the complaining party by applying an incorrect legal standard, 

reaching an illogical conclusion, or basing a decision on an erroneous assessment of the 

evidence. State v. McCaleb, 582 S.W.3d 179, 186 (Tenn. 2019) (citing Lee Med., Inc. v. 

Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)). In applying the abuse of discretion standard, 

appellate courts should not substitute their judgment for that of the trial court. Id. Rather, 

appellate courts should determine whether the evidence supports the factual basis for the 

trial court’s decision, whether the trial court properly applied the pertinent law, and whether 

the trial court’s decision was within the range of acceptable alternatives. Id.

B. Tennessee Rule of Evidence 404(b)

Rule 404(b) of the Tennessee Rules of Evidence provides that evidence of other 

crimes, wrongs, or acts is not admissible to show conformity with the character trait at 

issue but may be admissible for other purposes, such as motive, intent, or identity. See

State v. Berry, 141 S.W.3d 549, 582 (Tenn. 2004). Rule 404(b) seeks to prevent 

convictions based on mere propensity evidence. To that end, before a trial court may admit 

evidence of other crimes, wrongs, or acts, Rule 404(b) requires it to utilize the following
- 27 -

procedural safeguards: 

(1) The court upon request must hold a hearing outside the jury’s 

presence;

(2) The court must determine that a material issue exists other than 

conduct conforming with a character trait and must upon request state on the 

record the material issue, the ruling, and the reasons for admitting the 

evidence;

(3) The court must find proof of the other crime, wrong, or act to be clear 

and convincing; and

(4) The court must exclude the evidence if its probative value is 

outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b)(1)–(4); State v. James, 81 S.W.3d 751, 758 (Tenn. 2002). 

In the context of Rule 404(b), this Court has defined “unfair prejudice” as an “undue 

tendency to suggest decision on an improper basis, commonly, though not necessarily, an 

emotional one.” DuBose, 953 S.W.2d at 654 (quoting State v. Banks, 564 S.W.2d 947, 951 

(Tenn. 1978)). Rule 404(b) analysis of material evidence requires trial courts to balance

probative value against the danger of unfair prejudice; the more probative the evidence, the 

lower the chance of unfair prejudice becomes. State v. Mallard, 40 S.W.3d 473, 488 (Tenn. 

2001).

C. Convictions for Rape and Assault

In this case, the Defendant filed a motion to suppress evidence admitted in his first 

trial relating to his convictions for rape and aggravated assault. Pursuant to Rule 404(b), 

the State then filed notice of its intent to introduce certain evidence at the retrial, including: 

(1) evidence of the Defendant’s January 1989 assault and rape of the victim, the 

Defendant’s guilty plea, and the sentence imposed by the trial court; and (2) evidence of 

the Defendant’s attempts to escape jail after his arrest for first degree murder and 

burglary.21 

 

21 The State also sought to introduce evidence the Defendant engaged in other domestic abuse of 

the victim. As to this evidence, the trial court held the State failed to meet the clear and convincing standard 

of Rule 404(b), so it denied the request. This ruling was not challenged on appeal. The State also sought 

to introduce evidence that the maroon Honda the Defendant was driving when he was arrested in Indiana 

had been reported stolen. At the Rule 404(b) hearing, the parties agreed to draft a stipulation explaining 

the defendant was pulled over and detained in Indiana for a reason unrelated to the disappearance of the 
- 28 -

Prior to trial, the trial court held a Rule 404(b) hearing at which it heard testimony 

from two witnesses―the victim’s daughter, Tracye Ellsworth Brown, and the MPD officer 

who responded to the victim’s call for help during the attack, Clifford Freeman. Ms. Brown 

was six years old at the time of the attack in January 1989. She was at home when the 

Defendant assaulted and raped her mother, and she testified about her recollection of the 

events. Officer Freeman testified about the victim’s state when he arrived at the scene, 

statements the victim made about the attack, and the subsequent apprehension of the 

Defendant.

The trial court held that the Defendant’s guilty plea, conviction, and incarceration 

for the 1989 rape and assault of the victim were admissible under Rule 404(b). It found 

the State had proven the rape and assault by clear and convincing evidence. The trial court 

noted that the evidence included proof of the relationship between the Defendant and the 

victim as well as proof of the Defendant’s malice and hostility toward the victim. This 

evidence was probative of identity, motive, intent, and premeditation, all non-propensity 

reasons for its admission. The trial court then held that the danger of unfair prejudice to 

the Defendant did not outweigh the probative value of the evidence.

Likewise, after reviewing the initial trial testimony of Mr. Lescure and Mr. Conaley, 

the trial court found their statements about the Defendant’s intent to harm the victim after 

his release from prison were probative of intent, motive, identity, and premeditation. It 

held that the danger of unfair prejudice to the Defendant did not outweigh the probative 

value of the statements. The trial court ruled the testimony of Mr. Lescure and Mr. Conaley 

would be admissible under Rule 404(b) so long as it was consistent with the evidence

presented at the first trial.

Nevertheless, the trial court excluded proffered evidence of the details of the

Defendant’s attack on the victim. It decided that evidence of those details presented a 

strong risk of inflaming the passions of the jury and a danger of unfair prejudice to the 

Defendant. The trial court also excluded the testimony of Ms. Brown as to the underlying

events because she was a young child at the time of the rape and her recollection was hazy; 

the trial court held it did not meet the clear and convincing standard.

The Court of Criminal Appeals affirmed the trial court’s admission of evidence 

relating to the rape and assault of the victim. It concluded the trial court had properly found 

the evidence was probative of issues other than the Defendant’s bad character or propensity 

to commit murder and had carefully balanced the probative value of the evidence against 

the danger of unfair prejudice. Rimmer, 2019 WL 2208471, at *15.

 

victim, so the trial court dismissed this portion of the State’s motion as moot.
- 29 -

As noted, the Defendant does not contend the trial court failed to follow the 

procedural requisites of Rule 404(b). Instead, he maintains the trial court erred in holding 

that the probative value of this evidence outweighed the danger of unfair prejudice. See

Tenn. R. Evid. 404(b)(4). 

This Court has previously held that prior instances of domestic abuse by a defendant 

against a victim can be admissible under Rule 404(b). See, e.g., State v. Jarman, 604 

S.W.3d 24, 51 (Tenn. 2020) (affirming admissibility of evidence of defendant’s prior 

alleged assault of victim to show defendant’s intent and state of mind); State v. Smith, 868 

S.W.2d 561, 574 (Tenn. 1993) (in capital murder case, affirming admissibility of evidence 

of defendant’s prior assaults of two of the victims, his estranged wife and her son, to show 

defendant’s hostility, malice, intent, and settled purpose to harm them). But see State v. 

Gilley, 173 S.W.3d 1, 7 (Tenn. 2005) (noting “there is no per se rule of admissibility under 

Rule 404(b) for prior acts of abuse committed by a defendant against a victim”).

In this case, the evidence at issue includes: Ms. Brown’s reference to the 

Defendant’s rape and assault of her mother and her mother’s visits with the Defendant in 

jail afterwards; Richard Rimmer’s statement that his brother pled guilty to raping the 

victim; judgment forms documenting the Defendant’s guilty pleas to aggravated assault 

and rape; Mr. Conaley’s testimony about anger the Defendant expressed toward the victim; 

Mr. Conaley’s testimony regarding the Defendant’s threat to kill the victim if she did not 

share unrelated personal injury settlement money with him; Mr. Conaley’s observations 

about the Defendant’s demeanor when he talked about the victim; Mr. Lescure’s testimony 

about the Defendant’s threat to “kill the funky bitch” after his release from prison; and Mr. 

Lescure’s observations about the Defendant’s demeanor when he talked about the victim.

Clearly the evidence at issue has probative value and also presents potential for 

unfair prejudice. The trial court found explicitly that the evidence was probative of 

identity, motive, intent, and premeditation and held that its probative value outweighed the 

danger of unfair prejudice to the Defendant. The trial court also acted to mitigate the risk 

of unfair prejudice by excluding evidence of the details of the 1989 rape and assault. The 

trial court then took a further step by giving the following limiting instruction to the jury: 

If from the proof you find that the defendant has been convicted of 

Rape or Aggravated Assault, you may not consider such evidence to prove 

his disposition to commit such a crime as that on trial. The evidence may 

only be considered by you for the limited purpose of determining whether it 

proves motive; that is, such evidence may be considered by you if it tends to 

show a motive of the defendant for the commission of the offenses for which 

he is presently on trial.

. . . .
- 30 -

Such evidence of other crimes, if considered by you for any purpose, 

must not be considered for any purpose other than those specifically stated 

in this instruction.

We presume the jury followed these instructions. See State v. McKinney, 74 S.W.3d 291, 

310 (Tenn. 2002) (presuming the jury followed the trial court’s limiting instructions 

regarding the consideration of victim impact evidence). 

Considering the entire record, we must conclude the trial court did not abuse its 

discretion. We affirm its decision to admit evidence of the Defendant’s prior convictions 

for rape and aggravated assault, including the statements made to Mr. Conaley and Mr. 

Lescure during his subsequent incarceration for those offenses.

C. Escape Attempts

The State also sought to introduce evidence of the Defendant’s escape attempts in 

Indiana, Ohio, and Tennessee for the purpose of showing consciousness of guilt. The 

Defendant moved to exclude this evidence under Rule 404(b) as well. 

The trial court reviewed the prior trial testimony of James Allard, Richard Skaggs, 

Tony Lomax, and Dennis Tillman about the Defendant’s escape attempts. After 

performing the balancing required under Rule 404(b), it ruled their testimony would be 

admissible in the second trial. The trial court noted that defense counsel had ample

opportunity to cross-examine these witnesses at the first trial, and it held that the evidence 

was clear and convincing. It determined that the evidence was relevant to establish 

consciousness of guilt. In light of the dissimilarity of the crime of escape and the crime of 

murder, it found that a jury would be unlikely to use the evidence of escape as propensity 

evidence. To diminish the potential for unfair prejudice, the trial court indicated it would 

give a limiting instruction to the jury and ultimately did so.

The Court of Criminal Appeals reviewed the testimony at issue, as well as evidence 

of homemade “shanks” found in the Defendant’s cell in Indiana which served to 

corroborate the evidence of his plans to escape. Rimmer, 2019 WL 2208471, at *15. It 

held the trial court did not abuse its discretion in admitting evidence regarding the 

Defendant’s escape attempts. Id. 

It is well established that evidence of escape or attempted escape after the 

commission of a crime can be relevant and admissible at trial to show guilt, knowledge of

guilt, and consciousness of guilt. State v. Burton, 751 S.W.2d 440, 450 (Tenn. Crim. App. 

1988); see also Craig v. State, 455 S.W.2d 190, 193 (Tenn. Crim. App. 1970) (citing 22A 

C.J.S. Criminal Law § 631) (affirming admission of testimony about defendant’s escape 
- 31 -

from custody when brought to the courthouse for a preliminary hearing as evidence of guilt, 

knowledge of guilt, or consciousness of guilt); State v. Taylor, 661 S.W.2d 695, 698 (Tenn. 

Crim. App. 1983) (“It is universally recognized that testimony as to flight, attempted flight 

or concealment after the commission of an offense or after one is accused of a crime is 

relevant evidence which may be shown as a criminating circumstance . . . .”). The stage of 

the proceedings in which the escape attempt occurs is of no consequence; it is admissible 

regardless of the time that passed since the defendant’s arrest. Burton, 751 S.W.2d at 450.

The evidence at issue concerned the Defendant’s flight in a prisoner transport van, 

his attempted escape in Indiana, homemade shanks found in his cell,22 and his attempted 

escape in Tennessee. After reviewing the record, we agree with the Court of Criminal 

Appeals that the trial court properly analyzed this evidence under Rule 404(b). We note as 

well that the trial court mitigated any potential for unfair prejudice by giving the jury two

limiting instructions. The first: 

If from the proof you find that the defendant has committed any 

escape or plan or attempt to commit an escape, you also may not consider 

any such evidence to prove his disposition to commit such a crime as that on 

trial. This evidence may only be considered by you for the limited purpose 

of determining whether it tends to prove flight. The fact of flight alone does 

not allow you to find that the defendant is guilty of the crimes for which the 

defendant is now on trial, but if flight is proven, you may consider the fact 

of flight with all of the other evidence when you decide the guilt or innocence 

of the defendant. The rules for this consideration are set out in the following 

instruction on flight.

Such evidence of other crimes, if considered by you for any purpose, 

must not be considered for any purpose other than those specifically stated 

in this instruction.

And the second:

The flight of a person accused of a crime is a circumstance which, 

when considered with all the facts of the case, may justify an inference of 

guilt. Flight is the voluntary withdrawal of oneself for the purpose of evading 

arrest or prosecution for the crime charged. Whether the evidence presented 

proves beyond a reasonable doubt that a Defendant fled is a question for your 

determination.

 

22 The Defendant also argues the evidence regarding the shanks was admitted in violation of the 

Fifth Amendment of the United States Constitution and Tennessee Rules of Evidence 401, 402, and 403. 

The Defendant references no caselaw and makes only a skeletal argument. This argument is without merit. 
- 32 -

The law makes no precise distinction as to the manner or method of 

flight; it may be open, or it may be a hurried or concealed departure, or it 

may be a concealment within the jurisdiction. However, it takes both a 

leaving the scene of the difficulty and a subsequent hiding out, evasion, or 

concealment in the community, or a leaving of the community for parts 

unknown, to constitute flight.

If flight is proved, the fact of flight alone does not allow you to find 

that a defendant is guilty of the crime alleged. However, since flight by a 

Defendant may be caused by a consciousness of guilt, you may consider the 

fact of flight, if flight is so proven, together with all of the other evidence 

when you decide the guilt or innocence of a defendant. On the other hand, 

an entirely innocent person may take flight and such flight may be explained 

by proof offered, or by the facts and circumstances of the case.

Whether there was flight by a Defendant, the reasons for it, and the 

weight to be given to it, are questions for you to determine.

Again, we presume the jury followed these instructions. McKinney, 74 S.W.3d at 310. 

Under all of these circumstances, we conclude the trial court’s decision to admit 

evidence of the Defendant’s escape attempts was not an abuse of its discretion. 

IV. Mandatory Review of Death Sentence

This Court is statutorily required to review the Defendant’s death sentence. See

Tenn. Code Ann. § 39-13-206(a)(1) (2018). Our review must include whether (1) the death 

sentence was imposed in an arbitrary fashion; (2) the evidence supports the jury’s findings 

of statutory aggravating circumstances; (3) the evidence supports the jury’s finding that the 

aggravating circumstances outweighed any mitigating circumstances; and (4) the capital 

sentence is excessive or disproportionate to the penalty imposed in similar cases, 

considering both the nature of the crime and the defendant. Id. § 39-13-206(c)(1)(A)–(D).

 

A. Arbitrariness in Imposition of Death Penalty

In his supplemental brief to this Court, the Defendant does not seek modification of 

his sentence. Rather, he asks the Court to vacate his convictions and order another new

trial. In his supplemental brief, the Defendant also raises, for the first time, a general 

arbitrariness challenge to his death sentence, presumably because this Court ordered the 

parties to brief the issue for oral argument. Regardless of the Defendant’s failure to raise 

this issue before now, we are statutorily required to consider whether his death sentence 
- 33 -

was imposed in an arbitrary manner. Id. § 39-13-206(c)(1)(A).

After considering the arguments made by the Defendant and analyzing all pertinent 

law, we conclude the jury in this case did not render an arbitrary verdict of death. Our 

review reveals that the trial court conducted both the guilt and penalty phases of trial in 

accordance with the applicable statutes and procedural rules. The evidence was more than 

sufficient to support the guilty verdict. The jury sentenced the Defendant to death after it 

found beyond a reasonable doubt one aggravating circumstance―one or more convictions

for a felony with statutory elements involving violence to a person―and also found beyond 

a reasonable doubt that this aggravating circumstance outweighed any mitigating 

circumstances. The State presented certified copies of four judgments of conviction for 

prior violent felonies committed by the Defendant, and the Defendant waived his right to 

present mitigating evidence. The imposition of the death penalty was not arbitrary.23

B. Aggravating Circumstance

Before imposing the death penalty or life imprisonment, juries must unanimously 

find the existence of at least one aggravating circumstance beyond a reasonable doubt. See 

Tenn. Code Ann. § 39-13-204(i) (2018 & Supp. 2020). 

In this case, the jury found beyond a reasonable doubt one aggravating 

circumstance: “The defendant was previously convicted of one (1) or more felonies, other 

than the present charge, whose statutory elements involve the use of violence to the 

person.” Id. § 39-13-204(i)(2). In this context, “violence” is defined as “physical force 

unlawfully exercised so as to injure, damage, or abuse.” State v. Jones, 568 S.W.3d 101, 

139 (Tenn. 2019) (quoting State v. Fitz, 19 S.W.3d 213, 217 (Tenn. 2000)). If the elements 

of the felonies on which the State relies in support of aggravated circumstance (i)(2) can 

 

23 The Defendant claims his death sentence was arbitrary because the decision to seek the death 

penalty is left to the whim of a prosecutor and is often a product of outside pressures, like the media. Both 

the United States Supreme Court and this Court have concluded that the discretion afforded to prosecutors 

in deciding whether to seek the death penalty does not render the penalty arbitrary or capricious. Gregg v. 

Georgia, 428 U.S. 153, 199 (1976); State v. Brimmer, 876 S.W.2d 75, 86 (Tenn. 1994). The Defendant 

further contends it was arbitrary because the guilty verdict in this case was based on circumstantial 

evidence. This argument is counter to well-established Tennessee precedent. “[T]he cases have long 

recognized that the necessary elements of first-degree murder may be shown by circumstantial evidence.” 

State v. Brown, 836 S.W.2d 530, 541 (Tenn. 1992). Finally, the Defendant asserts the death penalty should 

not be an option in a trial with errors. We have held repeatedly that defendants, even in capital cases, are 

not entitled to a perfect trial. See, e.g., State v. Hutchison, 482 S.W.3d 893, 921 (Tenn. 2016) (“[T]he 

Constitution entitles a criminal defendant to a fair trial, not a perfect one.” (alteration in original) (quoting 

Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986))); State v. Hawkins, 519 S.W.3d 1, 38 (Tenn. 2017) 

(affirming a death sentence despite harmless error in admitting the defendant’s statement); State v. Willis, 

496 S.W.3d 653, 730 (Tenn. 2016) (affirming a death sentence despite harmless error in double-counting a 

single felony-murder aggravating circumstance). We respectfully reject these arguments. 
- 34 -

be satisfied without proof of violence, then the trial court must examine the facts underlying 

the convictions before it allows the State to present evidence of use of violence. State v. 

Sims, 45 S.W.3d 1, 12 (Tenn. 2001).

Here, to support its contention that the Defendant was previously convicted of one 

or more felonies whose statutory elements involved the use of violence, the State relied on 

the Defendant’s convictions of assault with intent to commit robbery with a deadly weapon 

(case number 85-00448); aggravated assault (case number 85-00449); aggravated assault 

(case number 89-02737); and rape (case number 89-02738). Aggravated assault can be 

proven without evidence of violence. See id. at 10–11 (noting the trial court properly found 

that aggravated assault “does not necessarily involve the use of violence to another person” 

in that the offense “may be committed by intentionally or knowingly causing the victim to 

reasonably fear imminent bodily injury by use or display of a deadly weapon” (footnote 

omitted)). The trial court below was already familiar with the facts underlying the 

Defendant’s 1989 aggravated assault conviction from reviewing the lengthy pretrial 

testimony related to it. It also reviewed the indictment for the Defendant’s 1985 conviction 

for aggravated assault, which stated the Defendant “[d]id unlawfully, knowingly, willfully 

cause, or attempt to cause serious bodily injury.” Based on this, the trial court held the 

underlying facts involved the use of violence. Only then did the trial court allow the State 

to present evidence of the aggravated assault conviction to the jury.

During the guilt phase of the trial, the State submitted evidence of the Defendant’s 

1989 aggravated assault and rape convictions, including certified copies of those 

judgments. In the penalty phase of the trial, the State entered into evidence certified copies 

of judgments reflecting the Defendant’s 1985 guilty pleas to assault with intent to commit 

robbery with a deadly weapon and aggravated assault. The State argued all four 

convictions should be considered in support of the aggravating circumstance. The jury 

unanimously agreed.

The Defendant does not challenge the underlying felony convictions presented by 

the State, nor does he dispute that they involve an element of violence.

The record in this case shows the trial court followed the proper procedures in

admitting the evidence relating to the Defendant’s violent felony convictions. The record 

contains certified judgments for all four convictions. We hold that the evidence fully 

supports the jury’s finding that the State proved aggravating circumstance (i)(2) beyond a 

reasonable doubt.

 

C. Aggravating Circumstances Outweigh Mitigating Circumstances

Tennessee law also requires us to assess whether “[t]he evidence supports the jury’s 
- 35 -

finding that the aggravating . . . circumstances outweigh any mitigating circumstances.” 

Tenn. Code Ann. § 39-13-206(c)(1)(C). The Defendant waived his right to present 

mitigating evidence during the penalty phase of the trial, and the trial court found his waiver 

was knowing and voluntary. Despite the waiver, the trial court instructed the jury that it 

could consider any mitigating evidence presented during the course of trial. After 

considering all of the evidence, in returning a verdict of death, the jury found beyond a 

reasonable doubt that the aggravating circumstance outweighed any mitigating 

circumstances.

From our review, the record contains little if any mitigating evidence to weigh 

against the aggravating circumstance. We hold that the evidence fully supports the jury’s 

finding that the aggravating circumstance in this case outweighed any mitigating 

circumstances.

 

D. Proportionality Review

Finally, Tennessee law requires the Court to determine whether the sentence of 

death in this case is excessive or disproportionate to the penalty imposed in similar cases. 

Id. § 39-13-206(c)(1)(D). In doing so, we consider whether the death sentence in this case 

is aberrant, arbitrary, or capricious in that it is “disproportionate to the punishment imposed 

on others convicted of the same crime.” State v. Bland, 958 S.W.2d 651, 662 (Tenn. 1997) 

(quoting Pulley v. Harris, 465 U.S. 37, 43 (1984)). 

To perform this review, we employ a precedent-seeking method of comparative 

proportionality review, in which we compare this case with other cases involving similar 

crimes and similar defendants. The pool of cases to be compared consists of “first degree 

murder cases in which the State sought the death penalty, a capital sentencing hearing was 

held, and the jury determined whether the sentence should be life imprisonment, life 

imprisonment without possibility of parole, or death,” without regard to the sentence that 

was imposed. State v. Rice, 184 S.W.3d 646, 679 (Tenn. 2006) (citing State v. Godsey, 60 

S.W.3d 759, 783 (Tenn. 2001); Bland, 958 S.W.2d at 666).

The death sentence for the Defendant must be deemed disproportionate if this case 

is “plainly lacking in circumstances consistent with those in cases where the death penalty 

has been imposed.” Bland, 958 S.W.2d at 668. Thus, in our proportionality review, we 

examine “the facts and circumstances of the crime, the characteristics of the defendant, and 

the aggravating and mitigating circumstances involved.” State v. Stevens, 78 S.W.3d 817, 

842 (Tenn. 2002). Specifically, we consider:

(1) the means of death; (2) the manner of death; (3) the motivation for the 

killing; (4) the place of death; (5) the victim’s age, physical condition, and 
- 36 -

psychological condition; (6) the absence or presence of premeditation; (7) 

the absence or presence of provocation; (8) the absence or presence of 

justification; and (9) the injury to and effect upon non-decedent victims.

State v. Reid, 164 S.W.3d 286, 316 (Tenn. 2005) (citing Bland, 958 S.W.2d at 667). We 

also consider several factors about the Defendant, including his (1) record of prior criminal 

activity; (2) age, race, and gender; (3) mental, emotional, and physical conditions; (4) role 

in the murder; (5) cooperation with authorities; (6) level of remorse; (7) knowledge of the 

victim’s helplessness; and (8) potential for rehabilitation. Id. at 316–17.

Here, the evidence indicates that the means of death was a violent and bloody attack 

involving blunt or sharp force. The manner of death could not be confirmed because 

authorities were never able to locate the victim’s body.

As to the motivation for the killing, the evidence shows that the Defendant and the 

victim had a tumultuous off-and-on romantic relationship that included the Defendant’s 

assault and rape of the victim and his 1989 guilty plea to the same. The evidence shows 

that, while he was incarcerated for these offenses, the Defendant repeatedly blamed the 

victim for his incarceration, expressed anger toward her, and told fellow inmates he 

planned to kill the victim upon his release. 

The evidence indicates the place of death was the victim’s place of employment. 

The Defendant went there the night of February 7, 1997 while the victim worked the 

overnight shift as a motel night clerk in a high crime area to support her family. The motel 

lobby office where the victim worked was secure; the door remained locked at night and 

the victim interacted with customers through a clear shield with a drawer. Despite the 

Defendant’s past brutalization of the victim, she maintained a relationship with him. The 

Defendant took advantage of the victim’s trust; when the Defendant came to the motel with 

at least one other male, the victim let them in. The evidence indicated the victim was killed 

in a bloody, violent encounter there at the motel, and her body was placed in the maroon 

Honda.

At the time of her death, the victim was forty-five years old. As to the victim’s 

physical condition and psychological condition, the evidence indicated she was leading a 

productive life with a happy marriage and a close relationship with her mother and her 

teenage daughter. The victim was also close to her son, who depended on the victim for 

support and care regarding conditions arising out of severe burns he had sustained as a 

child. At the time of her death, the victim babysat her son’s daughter, the victim’s 

granddaughter, multiple times a week. 
- 37 -

The evidence of the Defendant’s conversations with Mr. Lescure and Mr. Conaley

indicates the murder was premeditated. When the Defendant spoke to them about his anger 

at the victim and his intent to kill her once he got out of prison, the subject matter of the 

conversation caused him to foam at the mouth and sweat as he spoke. Approximately a 

year later, the Defendant followed through on his threat. 

The record does not contain any evidence of provocation or justification for the 

murder. 

The evidence shows that the effect of the victim’s murder on the non-decedent 

victims—her family—was profound. Her husband, mother, daughter, and son all enjoyed

a close and loving relationship with the victim, and they were greatly affected by her 

absence from their lives. During the penalty phase of the trial, the victim’s mother testified 

that the fact that the victim’s body was never found made closure for the family all the 

more difficult. The family was forced to have a memorial service for the victim without a 

body. The victim’s mother testified about the mental and emotional effect of not knowing

exactly how her daughter died and whether she was in pain or fear at the time of her death.

We next consider several factors about the Defendant. A white male who was thirtyone years old at the time of the offenses, the Defendant had a significant record of violent 

crime, including assault with the intent to commit robbery with a deadly weapon, rape, and

two counts of aggravated assault. As to the Defendant’s mental, emotional, and physical 

conditions, the evidence shows he had an emotional and physical reaction when he talked 

about his anger at the victim and his intent to kill her. Although there was proof at trial 

that potentially two other males accompanied the Defendant to the Memphis Inn the night 

the victim disappeared, the testimony of the Defendant’s fellow inmates about the 

Defendant’s descriptions of the murder indicates that he played an active role in killing the 

victim. This is consistent with the proof about the Defendant’s past relationship with the 

victim, the proof of his motive, the evidence of premeditation, and his decision to leave 

immediately afterward on a cross-country trip, driving a vehicle stained with the victim’s 

blood. 

The evidence shows the Defendant did not cooperate with authorities. After the 

murder, the victim’s body was never located. The Defendant’s conversations with other 

inmates indicated he disposed of the body, but instead of directing authorities to the body, the 

Defendant marveled that they had never found it. Moreover, after the murder, the Defendant 

attempted to escape from custody on three occasions. His plan to escape custody in Indiana, 

as described to a fellow inmate, included “grabbing a guard,” and homemade shanks were later 

found in his cell. After he stole a prisoner transport van in Ohio, the Defendant put public 

lives in danger by engaging in an extended high-speed chase. All told, the evidence indicates 

the Defendant has no remorse and no potential for rehabilitation. 
- 38 -

Based on our thorough review of the record and Supreme Court Rule 12 reports,24

we conclude that the death sentence imposed in this case is neither excessive nor 

disproportionate to the penalty imposed in similar cases. We previously affirmed the death 

sentence rendered following the Defendant’s first trial and second sentencing hearing, 

citing a string of decisions upholding the death penalty where the defendant’s violent 

felony history is the sole aggravating circumstance. Rimmer, 250 S.W.3d at 36 (citing 

State v. Copeland, 226 S.W.3d 287, 306–07 (Tenn. 2007); State v. Cole, 155 S.W.3d 885, 

907–09 (Tenn. 2005); State v. Dellinger, 79 S.W.3d 458, 475–77 (Tenn.

2002); McKinney, 74 S.W.3d at 314; State v. Chalmers, 28 S.W.3d 913, 920 (Tenn.

2000); State v. Keough,

25 18 S.W.3d 175, 184 (Tenn. 2000)). 

There are other cases in which this Court has affirmed the death sentence based on 

the sole aggravating circumstance of the defendant’s violent felony history. See, e.g., State 

v. Thomas, 158 S.W.3d 361, 382 (Tenn. 2005); State v. Smith, 993 S.W.2d 6, 21 (Tenn. 

1999); State v. Adkins, 725 S.W.2d 660, 662 (Tenn. 1987). 

In this Court’s review of Mr. Rimmer’s first capital conviction, we also cited prior 

cases in which the jury imposed the death penalty after a conviction for the murder of a 

current or estranged significant other. Rimmer, 250 S.W.3d at 36 (citing State v. 

Stephenson, 195 S.W.3d 574, 596 (Tenn. 2006), abrogated on other grounds by Watkins, 

362 S.W.3d 530; State v. Ivy, 188 S.W.3d 132, 157 (Tenn. 2006); State v. Faulkner, 154 

S.W.3d 48, 63 (Tenn. 2005); Stevens, 78 S.W.3d at 822–23; State v. Suttles, 30 S.W.3d 

252, 255 (Tenn. 2000); State v. Hall, 8 S.W.3d 593, 595–96 (Tenn. 1999); State v. 

Porterfield, 746 S.W.2d 441, 443–44 (Tenn. 1988)).

There are additional cases in which this Court has affirmed the death penalty for 

murder involving estranged lovers and other domestic disputes. See, e.g., State v. Clayton, 

535 S.W.3d 829, 836–37 (Tenn. 2017) (defendant lethally shot his girlfriend and her 

parents); Smith, 868 S.W.2d at 583 (defendant murdered his estranged wife and her two 

sons from a prior marriage); State v. Johnson, 743 S.W.2d 154, 155–56 (Tenn. 1987) 

(defendant suffocated his wife with a plastic bag); State v. Cooper, 718 S.W.2d 256, 256 

(Tenn. 1986) (defendant shot his estranged wife four times at her place of employment).

This Court has also affirmed the death penalty in cases where the circumstances of 

the murder involved severe beating. See, e.g., State v. Nichols, 877 S.W.2d 722, 725 (Tenn. 

1994) (victim, discovered in a pool of blood, died two days after the defendant repeatedly 

 

24 Tennessee Supreme Court Rule 12 requires trial courts to file extensive reports in all cases in 

which the defendant is convicted of first degree murder. These reports include data about the crime, the 

defendant, and the punishment imposed. See Tenn. Sup. Ct. R. 12(1) & app. 

25 Keough involved a defendant who murdered his estranged ex-wife.
- 39 -

hit her in the head with a piece of lumber while he raped her); State v. Barber, 753 S.W.2d 

659, 660 (Tenn. 1988) (defendant murdered the victim by beating her multiple times in the 

head during a burglary); State v. McNish, 727 S.W.2d 490, 491 (Tenn. 1987) (victim died 

after being severely beaten with a vase). 

Combining these two circumstances, as in the instant case, at least three death 

penalty cases have involved the brutal beating of a significant other. See, e.g., Faulkner, 

154 S.W.3d at 62–63 (defendant killed his wife by hitting her in the head and face with a 

skillet and a metal horseshoe; the sole aggravating circumstance was subsection (i)(2));

Hall, 8 S.W.3d at 597 (victim, the estranged ex-wife of the defendant, sustained at least 

eighty-three separate wounds, including several blows to head, before she drowned in a 

pool); Porterfield, 746 S.W.2d at 444–45 (defendant, hired by the victim’s wife to murder 

her husband, killed him by beating him in the head with a tire iron twenty-one times). 

No two cases are identical, and we need not find an identical comparative case. Ivy, 

188 S.W.3d at 158. We need only analyze similar first degree murder cases in which the 

State sought the death penalty, there was a capital sentencing hearing, and the sentencing 

jury decided whether the sentence should be life imprisonment, life imprisonment without 

the possibility of parole, or death, “regardless of the sentence actually imposed,” to 

determine whether the punishment here is disproportionate to the punishment of others 

convicted of the same crime. Godsey, 60 S.W.3d at 783; Bland, 958 S.W.2d at 662. It is 

not. 

Based on our review of the record in this case and our review of other cases in which 

the death penalty was sought, we hold that the sentence of death imposed in this case is not 

disproportionate to the penalty imposed for similar crimes under similar circumstances. 

The Defendant is not entitled to relief on this basis.

CONCLUSION

For the reasons set forth above, we hold: (1) in light of sequential jury instructions 

given in the first trial, double jeopardy principles did not bar retrial on the felony murder 

count; (2) alleged prosecutorial misconduct in the first trial did not trigger double jeopardy 

protections; (3) the State did not have a duty to preserve the maroon Honda, so the trial 

court did not err in denying the Defendant’s motion to suppress DNA evidence from the 

vehicle; (4) under Tennessee Rule of Evidence 404(b), the trial court did not err in 

admitting evidence of the Defendant’s prior convictions for rape and aggravated assault

and his subsequent sentence, including the statements made to Mr. Conaley and Mr. 

Lescure; (5) the trial court did not err under Rule 404(b) in admitting evidence of the 

Defendant’s escape attempts, including the corroborating evidence of homemade shanks 

found in his cell; (6) imposition of the death penalty is neither arbitrary nor 
- 40 -

disproportionate given the circumstances of the crime; (7) the evidence supports the jury’s 

finding that the State proved beyond a reasonable doubt aggravating circumstance (i)(2) 

under Tennessee Code Annotated section 39-13-204; (8) the evidence supports the jury’s 

finding beyond a reasonable doubt that the aggravating circumstance outweighed any 

mitigating circumstances; and (9) the sentence of death is neither excessive nor 

disproportionate to the penalty imposed in similar cases. We agree with the conclusions 

of the Court of Criminal Appeals as to the remaining issues and have included the relevant 

portions of its opinion in the attached appendix. We affirm the convictions and the 

sentence. 

 

The sentence of death shall be carried out as provided on the 10th day of May, 2022, 

unless otherwise ordered by this Court or other proper authority. It appearing that the 

Defendant, Michael Rimmer, is indigent, the costs of this appeal are taxed to the State of 

Tennessee. 

____________________________

HOLLY KIRBY, JUSTICE
- 41 -

APPENDIX

(EXCERPTS FROM THE DECISION OF THE COURT OF 

CRIMINAL APPEALS)

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

September 5, 2018 Session

STATE OF TENNESSEE v. MICHAEL RIMMER

Appeal from the Criminal Court for Shelby County

No. 98-01033, 98-01034 Chris Craft, Judge

___________________________________

No. W2017-00504-CCA-R3-DD

___________________________________

[Introduction omitted]

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed 

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which THOMAS T.

WOODALL and NORMA MCGEE OGLE, JJ., joined.

Paul Bruno, Nashville, Tennessee; and Robert Parris, Memphis, Tennessee, for the 

appellant, Michael Rimmer

Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor 

General; Andrew C. Coulam, Senior Counsel; Rachel M. Stephens and Pamela S. 

Anderson, District Attorneys General Pro Tem, for the appellee, State of Tennessee.

OPINION

PROCEDURAL BACKGROUND

[Omitted]

ANALYSIS
- 42 -

I. Sufficiency of the Evidence and Indictments

The Defendant contends that no evidence connected him to the crimes, but his 

argument focuses on whether the indictments provided him with adequate notice that other 

persons could have been involved in the crimes. The Defendant argues that the evidence 

showed that two other men committed the murder and that no evidence supports a theory 

of criminal responsibility. The State responds that ample evidence connected the 

Defendant to the murder and to the robbery and that “the fact that others might have been 

involved was not an element of the charged offenses.” Further, the State argues that 

criminal responsibility is a theory of guilt and need not be stated in an indictment.

A. Sufficiency of the Evidence

In determining the sufficiency of the evidence, the standard of review is “whether, 

after viewing the evidence in the light most favorable to the prosecution, any rational trier 

of fact could have found the essential elements of the crime beyond a reasonable 

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see State v. Vasques, 221 S.W.3d 

514, 521 (Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence 

and all reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The 

appellate courts do not “reweigh or reevaluate the evidence,” and questions regarding “the 

credibility of witnesses [and] the weight and value to be given the evidence . . . are resolved 

by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see State v. 

Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).

“A crime may be established by direct evidence, circumstantial evidence, or a 

combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v. 

Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review ‘is the same whether 

the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331 

S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 

2009)). A conviction may be based upon circumstantial evidence alone. See Dorantes, 

331 S.W.3d at 380-81.

First degree murder is the unlawful, intentional, and premeditated killing of another. 

T.C.A. §§ 39-13-201 (2014), 39-13-202(a)(1). In the context of first degree murder, intent 

is shown if the defendant has the conscious objective or desire to cause the victim’s 

death. State v. Page, 81 S.W.3d 781, 790-91 (Tenn. Crim. App. 2002); T.C.A. § 39-11-

106(a)(18) (2010) (amended 2011, 2014) (defining intentional as the “conscious objective 

or desire to engage in the conduct or cause the result”). A premeditated act is one which 

is
- 43 -

done after the exercise of reflection and judgment. “Premeditation” means 

that the intent to kill must have been formed prior to the act itself. It is not 

necessary that the purpose to kill preexist in the mind of the accused for any 

definite period of time. The mental state of the accused at the time the 

accused allegedly decided to kill must be carefully considered in order to 

determine whether the accused was sufficiently free from excitement and 

passion as to be capable of premeditation.

Id. § 39-13-202(d). The question of whether a defendant acted with premeditation is a 

question of fact for the jury to be determined from all of the circumstances surrounding the 

killing. State v. Davidson, 121 S.W.3d 600, 614 (Tenn. 2003). Proof of premeditation may 

be shown by direct or circumstantial evidence. State v. Brown, 836 S.W.2d 530, 541 

(Tenn. 1992).

As relevant here, first degree felony murder is “[a] killing of another committed in 

the perpetration of or attempt to perpetrate any . . . robbery[.]” T.C.A. § 39-13-202(a)(2) 

(2014).

Aggravated robbery is defined, in relevant part, as “the intentional or knowing theft 

of property from the person of another by violence or putting the person in fear,” “where 

the victim suffers serious bodily injury.” Id. §§ 39-13-401(a) (2014), -402(a)(1). Theft of 

property occurs when “with the intent to deprive the owner of property, [a] person 

knowingly obtains or exercises control over the property without the owner’s effective 

consent.” T.C.A. § 39-14-103(a) (2014).

There was strong direct and circumstantial evidence establishing that the Defendant 

participated in the victim’s murder and the aggravated robbery of the victim. The 

Defendant discussed his plan to kill the victim and to hide her body when he was previously 

incarcerated for assaulting the victim. Witnesses testified that a maroon car was seen at 

the motel, and the Defendant was seen with a maroon Honda the day after the victim’s 

disappearance. The Defendant was driving the maroon Honda at the time of his arrest, and 

the car contained blood and DNA consistent with that of the victim. The motel bathroom 

contained the victim’s blood and DNA, and the victim was never seen after the early 

morning hours of February 8, 1997. Testimony established that $600 and several sets of 

bed sheets were missing from the motel office. Some of the missing money was from a 

lockbox kept in a back room, and the victim kept the key to the box on her person. The 

Defendant told another inmate that he had been in the back room “doing something” after 

he shot the victim in the chest, that she “got up,” and he shot her in the head. One of the 

witnesses saw a man place an object rolled up in a blanket in the trunk of a maroon car that 

was backed into a parking place with its open trunk facing toward the building. The car 

sank when the object was placed in the trunk.
- 44 -

Witnesses and investigators described a bloody scene indicative of a violent 

struggle, supporting the conclusion that the victim suffered serious bodily injury. Witness 

testimony also established that two perpetrators participated in the offenses. Mr. Allard 

testified that the Defendant confessed to being present at the motel and to actively 

participating in the attack against the victim. Several hours after the victim disappeared, 

the Defendant arrived at his brother’s home Mississippi in a maroon Honda, which was 

muddy. The Defendant’s shoes were muddy, and he asked his brother to dispose of a 

shovel and to assist him in cleaning blood from the backseat of the car.

Following the victim’s disappearance, the Defendant also disappeared for 

approximately one month. He stopped going to work and did not pick up his last paycheck, 

although his supervisor described the Defendant as reliable. Receipts found in the Honda 

showed that the Defendant had traveled throughout the country before his arrest in Indiana. 

After his arrest, he told Mr. Allard that he had murdered the victim and hid her body. The 

Defendant also attempted to escape from police custody on three occasions. We conclude 

that sufficient evidence supports the first degree premeditated murder, first degree felony 

murder, and aggravated robbery convictions.

B. Sufficiency of the Indictments

An individual accused of a crime has the right to be informed of the nature and cause 

of an accusation against him. U.S. Const. amend. XI, XIV; Tenn. Const. art. 1, § 9. 

Pursuant to Tennessee Code Annotated section 40-13-202 (2012), an indictment

must state the facts constituting the offense in ordinary and concise language, 

without prolixity or repetition, in such a manner as to enable a person of 

common understanding to know what is intended and with that degree of 

certainty which will enable the court, on conviction, to pronounce the proper 

judgment . . . .

Our supreme court has said that an indictment is sufficient if it provides adequate 

information to enable the defendant to know the accusation against which he must defend, 

furnishes the trial court with an adequate basis for entry of a proper judgment, and protects 

the defendant from double jeopardy. See State v. Hill, 954 S.W.2d 725, 727 (Tenn. 

1997); see also Wyatt v. State, 24 S.W.3d 319, 324 (Tenn. 2000). The supreme court has 

held that “indictments which achieve the overriding purpose of notice to the accused will 

be considered sufficient to satisfy both constitutional and statutory requirements.” State v. 

Hammonds, 30 S.W.3d 294, 300 (Tenn. 2000). In this regard, “specific reference to a 

statute within the indictment may be sufficient to place the accused on notice of the charged 

offense.” State v. Sledge, 15 S.W.3d 93, 95 (Tenn. 2000). The indictment “need not allege 
- 45 -

the specific theory or means by which the State intends to prove each element of an offense 

to achieve the overriding purpose of notice to the accused.” Hammonds, 30 S.W.3d at 300. 

Thus, the State is not required to assert a theory of criminal responsibility in the charging 

instrument. State v. Lemacks, 996 S.W.2d 166, 172-73 (Tenn. 1999).

The indictments were not included in the appellate record, but they were read into 

evidence at the trial. The aggravated robbery indictment in No. 98-01033 read as follows:

Count 1, The grand jurors of the State of Tennessee . . . present that 

[the Defendant], during the period of time between February 7th 1997, and 

February 8th, 1997, in Shelby County, Tennessee, and before the finding of 

this indictment, intentionally or knowingly did take from [the victim] a sum 

of money of value by violence or putting [the victim] in fear. And the victim 

. . . suffered serious bodily injury, in violation of Tennessee Code Annotated 

39-13-402 . . . .

The murder indictment in No. 98-01034 stated:

Count 1, The grand jurors of the [S]tate of Tennessee . . . present that 

[the Defendant] during the period of time between February 7th 1997, and 

February 8th, 1997, in [C]ounty of Shelby, Tennessee, and before the finding 

of this indictment did unlawfully, intentionally, and with premeditation kill 

[the victim] in violation of Tennessee Code Annotated 39-13-202 . . . .

Count 2[,] The grand jurors of the State of Tennessee . . . present that 

[the Defendant], during the period of time between February 7th, 1997, and 

February 8th, 1997, in Shelby County, Tennessee, did unlawfully, with the 

intent to commit robbery, kill [the victim] during the perpetration of or 

attempt to perpetrate robbery, in violation of Tennessee Code Annotated 39-

13-202 . . . .

The elements of aggravated robbery, premeditated murder, and felony murder were 

clearly set forth in the indictment, along with the statutes for each. The Defendant contends 

that the State’s rebuttal closing argument included statements that other persons were 

involved in the crimes and that these assertions “surprised” him. However, the State is not 

required to set forth its theory of guilt in the indictment. The State’s argument was based 

on the proof submitted at trial, including witness testimony that more than one person was 

participated in the crimes at the motel on the night the victim disappeared. The Defendant 

is not entitled to relief on this basis.

II. Double Jeopardy
- 46 -

[Omitted]

III. Motion to Suppress DNA Evidence

[Omitted]

A. Collateral Estoppel

[Omitted]

B. Due Process Violation

[Omitted]

IV. State’s Opening Statement

The Defendant next asserts that the trial court erred in not striking the State’s 

opening statement or in not declaring a mistrial when the prosecutor said that the car had 

been “taken.” The Defendant argues that the State’s reference to the car implied it had 

been stolen, which violated the court’s pretrial order prohibiting the State from referring to 

the car as stolen, pursuant to Tennessee Rule of Evidence 404(b), and due process. The 

State disagrees, arguing that reference to the car as “taken” did not violate the court’s 

pretrial ruling, that Rule 404(b) does not apply to opening statements, and that any due 

process violation was by failing to object at the trial and in the motion for new trial.

In addition to the aggravated robbery and murder charges, the Defendant was 

indicted for the theft of the Featherstons’ maroon Honda. However, the trial court severed 

the theft charge prior to trial. The court determined that the theft was not part of the same 

criminal transaction as the murder and aggravated robbery. It also prohibited the State 

from eliciting evidence that the car had been stolen. However, the court permitted the State 

to show that the Defendant had control of the car before and after February 7, 1997, in 

order to establish that he was the perpetrator of the aggravated robbery and murder. It 

recognized that the Defendant’s possession of the car before and after the victim’s 

disappearance was “very material” to his identity as the perpetrator.

In the opening statement, the prosecutor said the following:

[F]rom February 8th through March 5th, [the Memphis Police Department] 

had been looking for [the Defendant] everywhere they could. They also 

knew that there was, obviously, some interest in this vehicle, maroon vehicle, 

and they ended up locating that - - a friend that had worked with [the 
- 47 -

Defendant] owned a vehicle matching that description. And learned that that 

vehicle had been taken from outside [the Featherstons’] home. And so the 

police are going to be on the lookout for this tag number and this vehicle.

At the conclusion of the statement, the Defendant objected to the State’s use of the word 

“taken,” moved to have the statement stricken, and argued that it was grounds for a mistrial. 

According to the Defendant, the State’s words gave a “clear implication” that he had stolen 

the car, violating the court’s order. The State argued that its statement did not violate the 

court’s ruling because the car could have been borrowed or have been missing due to a 

misunderstanding.

The trial court determined that the State did not violate its order or necessitate a 

mistrial. The court found that the State had a right to show that the Defendant took the car 

and that the car was missing but not that any crime was committed when the car was taken. 

The court emphasized that the State would not be allowed to elicit testimony about whether 

the Defendant had permission to take the car or whether the police were called in response.

Opening statements “are intended merely to inform the trial judge and jury, in a 

general way, of the nature of the case and to outline, generally, the facts each party intended 

to prove.” State v. Reid, 164 S.W.3d 286, 343 (Tenn. 2005). Opening statements are not 

evidence. State v. Thompson, 43 S.W.3d 516, 523 (Tenn. Crim. App. 2000). Trial courts 

should allow the parties to present “a summary of the facts supportive of the respective 

theories of the case, only so long as those ‘facts are deemed likely to be supported by 

admissible evidence.’” State v. Sexton, 368 S.W.3d 371, 415 (Tenn. 2012) 

(quoting Stanfield v. Neblett, 339 S.W.3d 22, 41-42 (Tenn. Ct. App. 2010)). Therefore, 

opening statements should “be predicated on evidence introduced during the trial” and 

should never refer “to facts and circumstances which are not admissible in

evidence.” Sexton, 368 S.W.3d at 415.

A trial judge should declare a mistrial if manifest necessity arises. Arnold v. State, 

563 S.W.2d 792, 794 (Tenn. Crim. App. 1977). Manifest necessity occurs when “no 

feasible alternative to halting the proceedings” exists. State v. Knight, 616 S.W.2d 593, 

596 (Tenn. 1981). “The granting or denial of a mistrial is within the sound discretion of 

the trial court.” State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 

1996); see State v. Jones, 802 S.W.2d 221, 222 (Tenn. Crim. App. 1990). This court will 

only disturb that decision if the trial court abused its discretion. State v. Adkins, 786 

S.W.2d 642, 644 (Tenn. 1990).

The Defendant cites to a single authority to support his argument that the use of the 

word taken during the opening statement was improper. In State v. James C. Greene, Jr., 

the defendant challenged his conviction on the basis that the State referred to inadmissible 
- 48 -

hearsay in its opening statement. No. 03C01-9407CR00247, 1995 WL 564939, at *1 

(Tenn. Crim. App. Sept. 26, 1995). The trial court prohibited the State from introducing 

evidence that the police had conducted surveillance on the defendant based on information 

that he was involved in illegal activity. During the opening statement, the prosecutor said, 

“[T]he Third Judicial Drug Task Force had information that [the defendant was] dealing 

drugs.” The defendant immediately objected to relevance and requested a mistrial. The 

court overruled the motion for a mistrial but sustained the objection and advised the jury 

to disregard the statement and not consider it for any purpose. Id. at *3.

On appeal, this court held that the defendant was not harmed by the prosecutor’s 

statement and that a mistrial was not required. Id. at *4. The proof adduced at the trial 

showed that the defendant was an admitted drug abuser but was not a seller. The court 

concluded that the proof offered at the trial was not affected by the opening statement and 

that the jury acquitted the defendant of possession with intent to sell or deliver. Id.

James C. Greene, Jr. is distinguishable from the present case because in James C. 

Greene, Jr., the prosecutor explicitly defied the trial court’s order. However, in the present 

case, the trial court concluded that the State’s comment did not run afoul of the pretrial 

order and reiterated that the State was allowed to show that the Defendant had possession 

of the car before and after the victim’s disappearance to establish his identity as the 

perpetrator. The court attempted to balance the State’s right to use the evidence to prove 

the perpetrator’s identity and the Defendant’s right to fairness by excluding evidence of the 

theft. We conclude that the court did not abuse its discretion in refusing to strike the 

opening statement or to grant a mistrial. The Defendant is not entitled to relief on this 

basis.

The Defendant also contends that the use of the word taken was a Fifth Amendment 

due process violation. He did not object on this basis at the trial, and the general contention 

is the extent of his argument on appeal. “In this jurisdiction, a party is bound by the ground 

asserted when making an objection. The party cannot assert a new or different theory to 

support the objection . . . in the appellate court.” State v. Adkisson, 899 S.W.2d 626, 634 

(Tenn. Crim. App. 1994). When a party asserts new grounds in the appellate court, the 

issue is treated as waived. Id. at 635. Furthermore, “[i]ssues which are not supported by 

argument, citation to authorities, or appropriate references to the record will be treated as 

waived in this court.” Tenn. Ct. Crim. App. R. 10(b). The Defendant’s failure to object 

on this basis at the trial or to adequately address the issue in his brief qualifies the issue for 

waiver. However, we will review this issue for plain error.

Five factors are relevant
- 49 -

when deciding whether an error constitutes “plain error” in the absence of an 

objection at trial: “(a) the record must clearly establish what occurred in the 

trial court; (b) a clear and unequivocal rule of law must have been breached; 

(c) a substantial right of the accused must have been adversely affected; (d) 

the accused did not waive the issue for tactical reasons; and (e) consideration 

of the error is ‘necessary to do substantial justice.’”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting Adkisson, 899 S.W.2d at 641-

42). All five factors must exist in order for plain error to be recognized. Id. at 283. 

“[C]omplete consideration of all the factors is not necessary when it is clear from the record 

that at least one of the factors cannot be established.” Id. In order for this court to reverse 

the judgment of a trial court, the error must be “of such a great magnitude that it probably 

changed the outcome of the trial.” Id.; Adkisson, 899 S.W.2d at 642. A defendant carries 

the burden of proving that the trial court committed plain error. See State v. Bledsoe, 226 

S.W.3d 349, 355 (Tenn. 2007).

The Defendant has not shown that the State’s use of the word taken amounted to a 

violation of due process that adversely affected a substantial right. “For a ‘substantial right’ 

of the accused to have been affected, the error must have prejudiced the appellant. In other 

words, it must have affected the outcome of the trial court proceedings.” State v. Maddin, 

192 S.W.3d 558, 562 (Tenn. Crim. App. 2005). The State’s single use of the word taken 

in its opening statement comported with the trial court’s previous ruling and with the 

evidence presented at trial. The Defendant is not entitled to relief on this issue.

V. Evidence of Prior Assault on Victim and Escape Attempts

[Omitted]

VI. William Baldwin’s Testimony

The Defendant asserts that the trial court erred in prohibiting William Baldwin from 

testifying about a statement made by an MPD detective. The Defendant argues that 

exclusion of this evidence violated Tennessee Rules of Evidence 401 and 402. He also 

asserts that the MPD lost a video recording made by Mr. Baldwin, which violated Brady v. 

Maryland, 373 U.S. 83 (1963). The State asserts that the court did not err because the 

proffered testimony was hearsay from an unknown police officer and was irrelevant. The 

State further responds that the Brady issue has been waived because it was not raised in the 

motion for new trial.

William Baldwin was an evidence technician for the Johnson County, Indiana 

Sheriff’s Department. Before Mr. Baldwin testified at the trial, the Defendant sought 
- 50 -

permission to question Mr. Baldwin outside the presence of the jury regarding a statement 

he overheard when he processed the car. According to the Defendant, Mr. Baldwin 

overheard an MPD detective say, “Well, it looks like the n----r did it.” The State opposed 

admission of the statement, arguing that Mr. Baldwin could not identify the person who 

allegedly made the statement and that it was inadmissible hearsay. The Defendant admitted 

that there was never an African-American suspect and that the evidence would not be 

offered to prove that an African-American committed the crime. However, he argued that 

the evidence was exculpatory. The Defendant surmised that if he could prove Detective 

Shemwell made the statement, the statement was relevant to Detective Shemwell’s 

credibility. The trial court ruled that the evidence was irrelevant and inadmissible. The 

court further expressed skepticism that Mr. Baldwin heard what he thought he heard, noting 

that “Rimmer did it” sounded very similar and made more sense in context.

Evidence is relevant and generally admissible when it has “any tendency to make 

the existence of any fact that is of consequence to the determination of the action more 

probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401, 402. 

Questions regarding the admissibility and relevancy of evidence generally lie within the 

discretion of the trial court, and the appellate courts will not “interfere with the exercise of 

that discretion unless a clear abuse appears on the face of the record.” State v. Franklin, 

308 S.W.3d 799, 809 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 

2007)).

A trial court abuses its discretion when it applies an incorrect legal standard or 

reaches a conclusion that is “illogical or unreasonable and causes an injustice to the party 

complaining.” State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006). Relevant evidence, 

however, “may be excluded if its probative value is substantially outweighed by the danger 

of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of 

undue delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R. 

Evid. 403.

We conclude that the trial court did not abuse its discretion by determining that the 

proffered evidence was not relevant. The Defendant admitted there was never an AfricanAmerican suspect. The Defendant is not entitled to relief on this basis.

The Defendant also argues that the exclusion of this evidence “violated the Fifth 

Amendment to the United States Constitution.” This general contention is the extent of his 

argument. Although the Defendant raised the issue in his motion for a new trial, he did not 

contemporaneously object at the trial. See Adkisson, 899 S.W.2d at 634; Tenn. Ct. Crim. 

App. R 10(b); Tenn. R. Evid. 103(a), (b). In any event, we will review the issue for plain 

error.
- 51 -

“An evidentiary ruling ordinarily does not rise to the level of a constitutional 

violation.” State v. Powers, 101 S.W. 3d 383, 397 (Tenn. 2003) (citing Crane v. Kentucky, 

476 U.S. 683, 689 (1986)). To determine whether the exclusion of evidence rises to the 

level of a constitutional violation, courts consider the following: (1) whether the evidence 

is critical to the defense, (2) whether it bears sufficient indicia of reliability, and (3) whether 

the interest supporting exclusion is substantially important. State v. Brown, 29 S.W. 3d 

427, 433-34 (Tenn. 2000).

The excluded evidence in this case was not critical to the defense because the 

Defendant conceded that there was never an African-American suspect. A substantial right 

of the Defendant was not adversely affected. See Smith, 24 S.W.3d at 282. The Defendant 

is not entitled to relief on this issue.

Finally, the Defendant alleges that law enforcement’s failure to preserve the 

videotape and to provide it to the defense violated Brady. The Defendant did not raise this 

issue at the trial or include the issue in his motion for new trial and his appellate argument 

is limited to one sentence. See Adkisson, 899 S.W.2d at 634; Tenn. Ct. Crim. App. R 10(b). 

Our review is limited to plain error.

Mr. Baldwin testified that he videotaped his inventory of the car and that the 

recording contained audio. The recording allegedly captured the statement, “[T]he n----r 

did it.” Mr. Baldwin testified that he thought he provided the recording to the MPD but 

that he was not sure. Mr. Baldwin explained that the recording was not listed on the 

computer inventory list of all the items turned over to the MPD. He thought that he gave

“everything” to the MPD and said that he had no reason to retain the recording. However, 

he had no record of providing it to MPD.

The defense argued that Mr. Baldwin’s testimony supported its theory that the MPD 

intentionally destroyed the recording because the recording pointed to someone other than 

the Defendant as a suspect and that the MPD, and Detective Shemwell in particular, had 

“tunnel vision” in investigating the Defendant.

The trial court found that no evidence supported the Defendant’s theory that 

Detective Shemwell intentionally destroyed the recording. The court noted that the 

detective had no reason to destroy the recording to cover up the possible identity of an 

African American suspect because there was no indication that an African-American 

suspect existed. The court concluded that the “whole thing is just an absolute nonissue.” 

However, the court allowed the defense to ask Mr. Baldwin whether a videotape was made, 

whether he remembered giving it to MPD, and whether it was available at the time of trial.
- 52 -

The Due Process Clause of the Fourteenth Amendment to the United States 

Constitution and article I, section 8 of the Tennessee Constitution afford every criminal 

defendant the right to a fair trial. See Johnson v. State, 38 S.W.3d 52, 55 (Tenn. 2001). As 

a result, the State has a constitutional duty to furnish a defendant with exculpatory evidence 

pertaining to his guilt or lack thereof or to the potential punishment faced by a 

defendant. See Brady, 373 U.S. at 87.

In order to show a due process violation pursuant to Brady, the defendant must 

prove by a preponderance of the evidence that (1) he requested the information, unless it 

is obviously exculpatory, (2) the State must have suppressed the information, (3) the 

information must be favorable to the accused, and (4) the information must be 

material. State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). Favorable evidence includes 

that which “challenges the credibility of a key prosecution witness.” Johnson, 38 S.W.3d 

at 56-57 (internal quotation marks and citation omitted). Evidence is material when “‘there 

is a reasonable probability that, had the evidence been disclosed to the defense, the result 

of the proceeding would have been different.’” Id. at 58 (quoting Edgin, 902 S.W.2d at 

390).

The Defendant has not shown that a clear and unequivocal rule of law was breached 

because the evidence does not show that the recording was material. A recording of one 

of the investigating detectives stating “the n----r did it” would not have cast doubt on the 

Defendant's identity as the perpetrator. Although the recording would have established 

that a detective engaged in unprofessional conduct, there is no reasonable probability that 

the jury would have acquitted the Defendant based upon the comment. The Defendant is 

not entitled to relief on this issue.

VII. Drawing of the Honda Backseat

The Defendant alleges that the trial court erred when it allowed into evidence a 

drawing of the backseat of the car. According to the Defendant, the drawing did “not 

reflect the true condition of the backseat” and was admitted in violation of Tennessee Rule 

of Evidence 403. The State disagrees, claiming that the court’s determination that the 

drawing would assist the jury was reasonable.

Tennessee Rule of Evidence 403 states that, “although relevant, evidence may be 

excluded if its probative value is substantially outweighed by the danger of unfair 

prejudice, confusion of the issues, or misleading the jury, or by considerations of undue 

delay, waste of time, or needless presentation of cumulative evidence.” The decision to 

admit evidence will be reversed “only when the court applied an incorrect legal standard, 

or reached a decision which is against logic or reasoning” and the admission of the evidence 
- 53 -

“caused an injustice to the party complaining.” State v. Gilliland, 22 S.W.3d 266, 270 

(Tenn. 2000) (quoting State v. Shirley, 6 S.W.3d 243, 249 (Tenn. 1999)).

TBI agent and forensic serologist Samera Zavaro testified that she processed the car 

for blood evidence. When she located a reddish-brown stain, she conducted a presumptive 

blood field test. If the surface was fabric and resulted in a positive presumptive test, she 

took cuttings of the stained area and later conducted tests of the cuttings to determine 

whether they contained human blood. If the stain was found on a hard surface, she swabbed 

the surface and performed a second test using the swab. She identified photographs of the 

car, including the backseat. She testified that because the interior fabric was also a reddishbrown color, it was difficult to discern stains from the photographs alone. However, she 

said that it was easier to see the stains when personally viewing the evidence. Accordingly, 

she made several drawings of the car in which she depicted the areas where stains were 

found, including the backseat.

When the State attempted to introduce the backseat drawing, the Defendant objected 

on the basis that the drawing was not the best evidence and was not accurate. He claimed 

that the drawing depicted more blood than the photographs. The trial court overruled the 

objection, pointing to Agent Zavaro’s testimony that the stains were difficult to see in the 

photographs alone. The court found that the drawing would assist the jury’s understanding 

and admitted the evidence. The court noted that the accuracy of the drawing could be 

challenged on cross-examination.

Although the Defendant does not elaborate in his brief about how admission of the 

evidence violated Rule of Evidence 403, his objection at the trial was based on the danger 

of misleading the jury. The trial court admitted the evidence based upon a finding that the 

drawing would assist the jury in understanding where in the backseat the blood was located. 

The Defendant did not ask Agent Zavaro questions challenging the accuracy of the 

drawing. The court did not abuse its discretion in admitting the evidence, and the 

Defendant is not entitled to relief on this basis.

The Defendant also asserts that admission of the backseat drawing violated the Fifth 

Amendment of the United States Constitution. He did not object on this basis at the trial 

and did not adequately address the issue in his appellate brief. See Adkisson, 899 S.W.2d 

at 634; Tenn. Ct. Crim. App. R 10(b). As such, our review is limited to plain error.

An evidentiary ruling rarely rises to the level of a constitutional 

violation. See Powers, 101 S.W.3d at 397. Furthermore, we have already determined that 

admission of the backset drawing was proper under the Rules of Evidence. We conclude 

that the Defendant’s allegation of constitutional error is without merit, and he has not 

established that admission was plain error. See, e.g., State v. Dustin Dwayne Davis, No. 
- 54 -

03C01-9712-CR-00543, 1999 WL 135054, at *5 (Tenn. Crim. App. Mar. 15, 1999); State 

v. Allan Brooks, No. 01C01-9510-CC-00324, 1998 WL 754315, at *11 (Tenn. Crim. App. 

Oct. 29, 1998). He is not entitled to relief on this issue.

VIII. Admission of James Allard’s Previous Testimony

The Defendant contends that the trial court erred in finding James Allard was 

unavailable and in allowing the State to present Mr. Allard’s testimony through a transcript 

of the previous trial. He asserts that the State’s efforts to locate Mr. Allard were “wholly 

insufficient” and that the prior testimony should have been excluded. The State responds 

that its efforts to locate Mr. Allard were reasonable and that the court did not err in 

declaring Mr. Allard unavailable and in admitting his previous testimony.

TBI Agent Charles Baker testified that he attempted to locate Mr. Allard through 

law enforcement databases as well as Google searches. He consulted “CLEAR,” which 

searched real estate records, criminal information, and both criminal and civil records. He 

also searched the State of Tennessee Justice Portal, which contained driver’s license 

information, vehicle information, criminal histories, and Tennessee Department of 

Correction information. He further searched the National Crime Information Center 

(NCIC) which he characterized as a national search through the FBI. Finally, he searched 

death records. He found a potential phone number but, after calling the number, 

determined it was a “dead end.”

On cross-examination, Agent Baker said that he did not attempt to contact Mr. 

Allard’s family because he did not have information about any family members. Agent 

Baker admitted that he was not aware Mr. Allard had been previously incarcerated in 

Indiana and said that he did not search for him through the Indiana Department of 

Correction.

The Defendant argued that the State’s efforts were insufficient. He asserted that 

Mr. Allard had a long criminal history and that if the right methods had been utilized, the 

State should have been able to identify his family members and gain more information 

about his whereabouts. The trial court found that the State’s efforts were reasonable. The 

court stated that it did not “know how else [the State] can go about finding a witness, if 

they don’t know who the family members are, other than Google searches and database 

searches.” The court noted that Mr. Allard’s imprisonment in Indiana nearly twenty years 

ago did not mean he was still in the state. The court found that the State was not required 

to send an investigator to every state in search of a witness.

The Constitution of the United States provides the accused in a criminal prosecution 

the right “to be confronted with witnesses.” U.S. Const. amend. VI. The Tennessee 
- 55 -

Constitution similarly provides the right “to meet witnesses face to face.” Tenn. Const. 

art. I, § 9. However, the right of confrontation is not absolute and must occasionally give 

way to considerations of public policy and necessities of the case. State v. Kennedy, 7 

S.W.3d 58, 65 (Tenn. Crim. App. 1999) (citing Jenkins v. State, 627 N.E.2d 789, 793 (Ind. 

1993)). Thus, the United States Supreme Court has refused to apply a literal interpretation 

of the Confrontation Clause which would bar the use of any hearsay. Idaho v. Wright, 497 

U.S. 805, 814 (1990).

In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court 

announced the test to determine admissibility under the Confrontation Clause of hearsay 

offered against an accused. Testimonial statements may not be offered into evidence unless 

two requirements are satisfied: (1) the declarant/witness must be unavailable and (2) the 

defendant must have had a prior opportunity to cross-examine the declarant/witness. Id. at 

68. “Where testimonial statements are at issue, the only indicium of reliability sufficient 

to satisfy constitutional demands is the one the Constitution actually prescribes: 

confrontation.” Id. at 68-69.

Mr. Allard’s previous testimony was testimonial; thus, the pertinent consideration 

is whether the State proved that the witness was unavailable. To accomplish this, “the 

State must prove that it made a good faith effort to secure the presence of the witness in 

question.” State v. Sharp, 327 S.W.3d 704, 712 (Tenn. Crim. App. 2010). “The ultimate 

question is whether the witness is unavailable despite good-faith efforts undertaken prior 

to trial to locate and present that witness. As with other evidentiary proponents, the 

prosecution bears the burden of establishing this predicate.” Crawford, 541 U.S. at 74-75. 

Good faith refers to the extent to which the State must attempt to produce the witness and 

is a question of reasonableness. Sharp, 327 S.W.3d at 712 (citing Ohio v. Roberts, 448 

U.S. 56, 74 (1980)). The trial court’s decision will be affirmed absent an abuse of 

discretion. Hicks v. State, 490 S.W.2d 174, 179 (Tenn. Crim. App. 1972).

Our supreme court considered what constitutes a good faith effort in State v. Armes, 

607 S.W.2d 234 (Tenn. 1980). In Armes, the State attempted to subpoena the witness 

before trial and discovered that the witness had disappeared. Id. at 236. This 

disappearance resulted in a mistrial. Id. One week before the second trial and again one 

day before the second trial, the State attempted to subpoena the witness, but the State was 

unable to locate the witness. Id. At the trial the State attempted to present the witness’s 

preliminary hearing testimony. Id. The State failed to provide any independent evidence 

of an attempt to locate the witness to prove the witness’s unavailability other than a 

statement by the prosecutor. The supreme court held that “[t]he prosecuting attorney’s 

statement to the Court concerning the efforts of the State’s investigator to locate the witness 

cannot be considered as evidence of proof on the issue of the State’s good faith 

effort.” Id. at 237. Our supreme court also determined that the State was on notice that 
- 56 -

extra effort would be required to locate the witness because he did not appear for the first 

trial date. Id.

Unlike Armes, the State in the present case produced independent evidence of its 

efforts to locate Mr. Allard. Nearly twenty years had passed between the first trial and the 

State’s attempts to locate Mr. Allard before the second trial. Agent Baker attempted to 

locate the witness using numerous search tools, including the NCIC database, which he 

explained was a national search through the FBI. Agent Baker developed one unsuccessful 

lead through a telephone number. The agent said he did not have information about Mr. 

Allard’s family members and was unable to contact them to gain more information. This 

evidence supports the trial court’s determination that the State made good-faith, although 

ultimately unsuccessful, efforts to locate the witness.

Given the passage of time and the independent evidence produced by the State, we 

conclude that the trial court did not abuse its discretion in determining Mr. Allard was 

unavailable. The Defendant is not entitled to relief on this issue.

IX. Rhonda Ball Johnson’s Testimony

The Defendant argues that the trial court erred in allowing Rhonda Ball Johnson to 

testify about conversations she had with William Conaley, alleging that it was inadmissible 

hearsay. He asserts that her testimony violated Tennessee Rules of Evidence 801 and 802. 

The State contends that the testimony was proper as prior consistent statements used to 

rehabilitate Mr. Conaley’s credibility.

Mr. Conaley was incarcerated with the Defendant at Northwest Correctional Center 

in 1993. He testified that the Defendant expressed his discontent that the victim had put 

him in prison. The Defendant told Mr. Conaley that the victim’s son, Chris Ellsworth, was 

going to receive money from a lawsuit and that the Defendant felt entitled to some of the 

money.

Mr. Conaley said that prior to his leaving on furlough, the Defendant asked him to 

relay a message to the victim. The Defendant wanted the victim to know that he expected 

to receive some of the money from the lawsuit and that if he did not get it, he would kill 

her. Mr. Conaley said that he relayed the threat to Ms. Johnson. However, Mr. Conaley 

did not report the threat to the authorities, and he was released on parole shortly thereafter.

In January 1996, Mr. Conaley returned to custody. In February 1997, Mr. Conaley 

read about the victim’s disappearance in a newspaper and told family members about the 

Defendant’s prior statements, but Mr. Conaley did not contact law enforcement. However, 
- 57 -

he said that approximately one week later, an MPD officer visited him in prison. He told 

the police about the Defendant’s threatening the victim.

On cross-examination, Mr. Conaley admitted that when the Defendant made the 

statements in 1993, Mr. Conaley had already been granted parole and was awaiting release. 

However, he admitted that when he spoke with law enforcement in 1997, the information 

might have gained him an earlier release. Nevertheless, he denied contacting law 

enforcement, and he said that it was Ms. Johnson who told the police about the Defendant’s 

threat after the victim disappeared. Mr. Conaley requested that he be transferred to the 

“annex” to finish his sentence, which he admitted was “easy time” in the prison system. 

He said that after talking to the police about the Defendant, he was moved to the annex.

Ms. Johnson testified that she was the victim’s niece. She was also childhood 

friends with Mr. Conaley. She confirmed that in 1993, Mr. Conaley told her about the 

Defendant’s threat against the victim.

Generally, out-of-court statements offered to prove the truth of the matter asserted 

are inadmissible evidence. See Tenn. R. Evid. 801, 802. However, when a defendant 

attacks a witness’s credibility, the State may rehabilitate the witness by offering evidence 

of a prior consistent statement. State v. Benton, 759 S.W.2d 427, 433 (Tenn. Crim. App. 

1988). Admission of prior consistent statements is authorized in two circumstances: (1) 

where the statement is offered to rebut the implication that the witness’s testimony was a 

recent fabrication; and (2) when deliberate falsehood has been implied. Id. Prior 

consistent statements are not ordinarily admissible for the sole purpose of bolstering a 

witness’s credibility. State v. Braggs, 604 S.W.2d 833, 885 (Tenn. Crim. App. 1980).

During Mr. Conaley’s cross-examination, the defense implied that Mr. Conaley 

fabricated the Defendant’s statement in 1997 because he faced years in prison and wanted 

to secure favorable treatment and early release. Thereafter, the State called Ms. Johnson, 

who testified that Mr. Conaley relayed the Defendant’s threat to her in 1993, when Mr. 

Conaley had already been granted parole and had no motivation to lie in order to cut a deal 

with police. That testimony was properly admitted to rebut the Defendant’s implication of 

recent fabrication, and this issue is without merit.

The Defendant also contends that admission of this evidence “was in violation of 

the Fifth Amendment of the United States Constitution.” The Defendant did not object on 

this basis at the trial and did not elaborate in his appellate brief as to how admission violated 

his constitutional rights. See Adkisson, 899 S.W.2d at 634; Tenn. Ct. Crim. App. R 10(b). 

Accordingly, our review is limited to plain error.
- 58 -

Because we have already determined that admission of Ms. Johnson’s statement 

was proper under the Rules of Evidence, we conclude that the evidence was not admitted 

in violation of the Defendant’s constitutional rights and that the Defendant has not 

established plain error. He is not entitled to relief on this basis.

X. Chris Ellsworth’s Testimony

The Defendant asserts that allowing Chris Ellsworth, the victim’s son, to show the 

jury his scars violated Tennessee Rules of Evidence 401, 402, and 403. The State responds 

that the court acted within its discretion to allow the evidence, which demonstrated the 

victim was unlikely to abandon her son, who had been badly burned, and rebutted the 

defense’s implication that the victim was not deceased. According to the State, the victim 

had provided extensive care to Mr. Ellsworth and would not have suddenly left.

At the trial, Mr. Ellsworth testified that he had been badly burned over 70% of his 

body in a water heater explosion and that he required extensive follow-up medical care. 

His mother was devoted to his care and frequently took him to LeBonheur Hospital as well 

as Shriners Hospital in Galveston, Texas, for treatment. She also worked with him daily 

on physical therapy for years after the accident. The State asked Mr. Ellsworth to show his 

scars to the jury. After the defense objected, the prosecutor explained that it wanted to 

show that the victim “was not the type of person that would have walked off without saying 

anything and leaving her children.” The trial court agreed that the evidence was relevant, 

pointing out that the defense had said in its opening statement that the victim might not be 

deceased. The court agreed that the evidence did not have “a lot of probative value” under 

Rule 403 but that there was minimal danger of unfair prejudice. Thereafter, Mr. Ellsworth 

displayed the scars on his forearms to the jury.

Evidence is relevant and generally admissible when it has “any tendency to make 

the existence of any fact that is of consequence to the determination of the action more 

probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401, 402. 

Relevant evidence, however, “may be excluded if its probative value is substantially 

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the 

jury, or by considerations of undue delay, waste of time, or needless presentation of 

cumulative evidence.” Tenn. R. Evid. 403.

The evidence was minimally relevant to support Mr. Ellsworth’s testimony about 

the severity of his injuries and to combat the defense’s argument that the victim might still 

be alive. The scars were a visual representation of the injuries described in the witness’s 

testimony, and no evidence showed that the Defendant had any involvement in Mr. 

Ellsworth’s injury. Despite the minimal relevance of the evidence, the Defendant has not 

articulated any prejudice he suffered based on the evidence’s admission. The trial court 
- 59 -

found that the probative value was not substantially outweighed by the danger of unfair 

prejudice, and the record supports its determination. The court did not abuse its discretion 

in allowing the jury to view the scars.

The Defendant asserts, in a cursory fashion, that admission of this evidence “was 

clearly done in violation of the Fifth Amendment of the United States Constitution,” an 

assertion that he did not raise at trial. See Adkisson, 899 S.W.2d at 634; Tenn. Ct. Crim. 

App. R 10(b). We review this issue for plain error.

The Defendant has not established that admission of the evidence was prejudicial or 

improper. Likewise, we have considered his allegation of a constitutional error that 

violated his due process rights and have determined that it is without merit. The Defendant 

is not entitled to relief on this basis.

XI. Tim Helldorfer’s Testimony Regarding William Conaley and James Allard

The Defendant alleges that the trial court erred in allowing Sergeant Tim Helldorfer 

to testify regarding statements made by Mr. Conaley and Mr. Allard, in violation of Rules 

of Evidence 801 and 802. The State contends that the testimony was prior consistent 

statements used to rebut implications on cross-examination about the Defendant’s threat 

and confessions.

Sergeant Helldorfer testified that he interviewed Mr. Conaley in prison and that he 

obtained a statement from Mr. Allard in Johnson County, Indiana in 1997. Sergeant 

Helldorfer stated that Mr. Allard’s previous testimony was consistent with the 1997 

statement.

The Defendant objected, arguing that the statements were hearsay and were prior 

consistent statements. He contended that admitting the statements because a witness’s 

credibility had been generally impeached was not the proper use of a prior consistent 

statement. The State asserted that the witness’s credibility became an issue on crossexamination and that it was proper to show they had “previously made these statements” 

to different individuals. The Defendant argued that Mr. Conaley’s 1997 statement was

fabricated and that the State could not provide a statement he made to someone else as 

proof that it was not a fabrication.

The trial court stated that “the jury has a right to hear that [Mr. Allard and Mr. 

Conaley] gave consistent statements to . . . the police . . . .” It explained that the statements 

were being offered to bolster the witness’s credibility. The court provided the following 

example to explain his ruling:
- 60 -

If someone sees something, let’s say they see someone run a light. 

And then they testify that they saw the person run the light.

And the other side says, he didn’t run the light, did he?

Yes he did.

And then [the witness] tells ten other people later on that he ran the 

light. I think the other side -- the first side has a right to put on the witnesses 

because he made that statement that he ran the light to many, many people 

over and over. To show his credibility on the stand, the credibility of his 

testimony.

It’s not being offered as substantive evidence. It’s being offered to 

show his credibility, that he made that statement to several people.

The court allowed the officer to testify that Mr. Conaley’s statements to police and at the 

trial were consistent. The court determined that the State could show Sergeant Helldorfer 

the transcript of Mr. Allard’s trial testimony and ask whether it was consistent with Mr. 

Allard’s statement to police. However, the contents of the transcript could not be admitted.

Out-of-court statements offered to prove the truth of the matter asserted are 

inadmissible at trial. See Tenn. R. Evid. 801, 802. However, when a defendant attacks a 

witness’s credibility, the State may rehabilitate the witness by offering evidence of a prior 

consistent statement. Benton, 759 S.W.2d at 433. Admission of a prior consistent 

statement is authorized in two circumstances: (1) where the statement is offered to rebut 

the implication that the witness’s testimony was a recent fabrication; and (2) when 

deliberate falsehood has been implied. Id. A prior consistent statement is not ordinarily 

admissible for the sole purpose of bolstering a witness’s credibility. Braggs, 604 S.W.2d 

at 885.

Here, the trial court’s comments reflect that the prior consistent statements were 

allowed merely to bolster the witness’s credibility. The statements admitted through 

Sergeant Helldorfer were not made “before any improper influence or motive to lie 

existed.” State v. Herron, 461 S.W.3d 890, 905 (Tenn. 2015) (citing Sutton v. State, 291 

S.W. 1069, 1070 (Tenn. 1927)). The defense’s cross-examination of these witnesses 

implied that the statements about the Defendant’s threat were fabricated in an effort to gain 

favorable treatment from the State. The statements to the police were not made before the 

purported motive to fabricate existed. Therefore, they were not prior consistent statements, 

and the court erred in admitting the statements.
- 61 -

Recognizing that all errors are not equal, our supreme court has established three 

categories of error—structural constitutional error, non-structural constitutional error, and 

non-constitutional error. Powers, 101 S.W.3d at 397; State v. Garrison, 40 S.W.3d 426, 

433-34 (Tenn. 2000); State v. Harris, 989 S.W.2d 307, 314-15 (Tenn. 1999). The 

distinctions between these categories dictate the standards to be applied when determining 

whether a particular error is harmless. State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 

2008). A trial court’s error in admitting evidence under the Tennessee Rules of Evidence 

falls into the category of non-constitutional error, and harmless error analysis under 

Tennessee Rule of Appellate Procedure 36(b) is appropriate. See State v. Clark, 452 

S.W.3d 268, 287 (Tenn. 2014); see also State v. James, 81 S.W.3d 751, 763 (Tenn. 2002) 

(noting that “[h]armless error analysis applies to virtually all evidentiary errors other than 

judicial bias and denial of counsel”). Pursuant to Rule 36(b), the defendant bears the 

burden of showing that a non-constitutional error “more probably than not affected the 

judgment or would result in prejudice to the judicial process.” T.R.A.P. 36(b); Rodriguez, 

254 S.W.3d at 372.

The Defendant has not carried his burden in showing that he was prejudiced by 

admission of this evidence. Indeed, he has not offered any argument related to the 

prejudicial effect of this error. After considering the entirety of the evidence presented at 

the, we conclude that the error was harmless. The defense was able to cross-examine Mr. 

Conaley and Mr. Allard about their motivations to lie in exchange for more favorable 

treatment. The substance of the testimony was already in evidence, and the jury was 

instructed not to consider the consistent statements as substantive evidence. Further, 

overwhelming circumstantial evidence established the Defendant’s guilt, including his 

previous relationship with the victim and motive for harming her, his threats to kill the 

victim, his confession to his cellmate, his possession of a car matching a description of the 

car seen at the motel, the presence in the car of blood and DNA matching the victim’s, and 

his actions in the days following the victim’s disappearance. Accordingly, the error was 

harmless, and the Defendant is not entitled to relief on this basis.

The Defendant also maintains that admission of this evidence violated the Fifth 

Amendment of the United States Constitution. He did not object on this basis at the trial 

and does not elaborate in his appellate brief as to how the Fifth Amendment was 

violated. See Adkisson, 899 S.W.2d at 634; Tenn. Ct. Crim. App. R 10(b). Our review is 

limited to plain error, and we conclude that the Defendant has not shown that the admission 

of this evidence affected a substantial right. The substantial right inquiry under the plain 

error doctrine mirrors the harmless error analysis under Rule 36(b). See Maddin, 192 

S.W.3d at 562. Upon consideration, we conclude, as well, that admission of the evidence 

did not violate the Defendant’s due process rights under the Fifth Amendment.

XII. Trial Court’s Limitation of Sergeant Helldorfer’s Testimony
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The Defendant contends that the trial court erred in limiting the defense’s 

questioning of Sergeant Helldorfer. He argues that the defense should have been allowed 

to ask during cross-examination whether Billy Wayne Voyles had been positively 

identified. The Defendant further asserts that Sergeant Helldorfer should have been 

allowed to testify about a document relating to the release of the maroon Honda. The State 

responds that the defense agreed to the limitation on testimony about the positive 

identification and cannot now claim error. Further, the State asserts that the document was 

inadmissible because it could not be authenticated by the witness.

A. Positive Identification

During its examination of Sergeant Helldorfer, the defense asked whether he was 

“aware that there was a positive identification made, that Billy Voyles was positively 

identified in the case.” The prosecution objected to the question, arguing it was hearsay. 

The court overruled the objection because it was admissible as a prior identification but 

stated that there was a question as to whether a witness made a “positive” identification. 

Defense counsel then said, “I will take the word positive out if that is the problem.” The 

court additionally noted that the Defendant needed to establish that the questioning was 

related to Mr. Darnell’s identification of Mr. Voyles. The defense again agreed and asked 

Sergeant Helldorfer whether “Mr. Darnell had identified Billy Wayne Voyles as an eye 

witness as being on the scene at the time during [the] investigation.” Sergeant Helldorfer 

answered affirmatively.

Tennessee Rule of Appellate Procedure 36(a) provides that “[n]othing in this rule 

shall be construed as requiring relief be granted to a party responsible for an error or who 

failed to take whatever action was reasonably available to prevent or nullify the harmful 

effect of an error.” The Defendant agreed to take the word positive out of the question 

posed to Sergeant Helldorfer, and he cannot now claim error on that basis. In any event, 

the Defendant has not explained how he was prejudiced by this limitation. Sergeant 

Helldorfer testified that Mr. Darnell identified Mr. Voyles as one of the men he saw in the 

motel office, and Mr. Darnell testified that he identified Mr. Voyles. The Defendant is not 

entitled to relief on this basis.

The Defendant also alleges that this limitation violated his Fifth Amendment rights 

under the United States Constitution. The Defendant did not raise this issue at the trial and 

does not provide any meaningful argument regarding this issue in his brief. See Adkisson, 

899 S.W.2d at 634; Tenn. Ct. Crim. App. R 10(b). We review the issue for plain error and 

conclude that the Defendant has not proven this limitation amounted to a due process 

violation or that a substantial right was adversely affected. The defense sought to elicit 

testimony that Mr. Darnell identified Mr. Voyles as one of the men at the motel. The court 
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did not allow the defense to use the word “positive” when pursuing this line of questioning 

because Mr. Darnell had not used the word when he testified about the identification. The 

Defendant agreed to remove the word “positive” from his question. Deleting the word 

from the question did not meaningfully change the witness’s testimony and had no effect 

on the outcome of the trial. The Defendant is not entitled to relief on this basis.

B. Towing Slip

During cross-examination, the defense showed Sergeant Helldorfer three 

documents, one of which was a towing slip for the Honda. When asked whether he 

recognized them, he replied that he only recognized the towing slip. The Defendant 

questioned Sergeant Helldorfer about the two unidentified documents. The State objected, 

arguing that the witness had not authenticated the documents. In response, the defense 

asserted that the three documents were received together in discovery and that Sergeant 

Helldorfer’s signature appeared on the towing slip. The defense asserted that one of the 

unidentified documents appeared to be the back of the towing slip, which had been 

authenticated by Sergeant Helldorfer. The defense explained that it was attempting to 

establish when the car was released and to whom, information that was reflected on one of 

the documents. However, Sergeant Helldorfer testified that the writing on the purported 

back of the towing slip was not his. He explained that he only wrote on the front of the 

towing slip and could not verify the information contained on the back. The trial court 

informed the Defendant that the witness had to authenticate the document purported to be 

the back of the towing slip before it could be admitted into evidence. Thereafter, the officer 

testified that his signature was on the towing slip, which reflected that the car was released 

on March 25. However, he did not have personal knowledge of where the car was taken 

after it was released. Because he could not identify the purported back of the towing slip, 

that document was not admitted into evidence.

Before a document is admitted into evidence, the party seeking admission generally 

must authenticate the document. State v. Troutman, 327 S.W.3d 717, 722 (Tenn. Crim. 

App. 2008); See Tenn. R. Evid. 901(a). Sergeant Helldorfer testified that he recognized 

the towing slip. However, he was unable to identify the document that the defense claimed 

was the back of the towing slip. The trial court did not abuse its discretion in refusing to 

admit the unauthenticated document, and this issue is without merit.

The Defendant again asserts a Fifth Amendment challenge to this issue, which was 

not a basis for objection at trial and is not adequately argued in his brief. See Adkisson, 

899 S.W.2d at 634; Tenn. Ct. Crim. App. R 10(b). We review the issue for plain error and 

conclude that the Defendant has not established that the trial court’s decision violated a 

clear and unequivocal rule of law. Because there was no error in the court’s decision to 

exclude this evidence based on a lack of authentication, the allegation of a constitutional 

error is without merit. The Defendant is not entitled to relief on this basis.
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XII[I]. Joyce Carmichael’s Testimony

Joyce Carmichael is the official records officer for the Tennessee Department of 

Correction. Ms. Carmichael testified that Tommy Voyles and the Defendant were both 

incarcerated at Lake County Regional Correctional Facility during a five-month period in 

1992. Later in the trial, another witness testified that Tommy and Billy Voyles were related 

and that the witness had seen them together, although the witness did not specify how they 

were related. Before her testimony, the defense objected to the relevance of evidence that 

Tommy Voyles had been incarcerated with the Defendant previously. The prosecutor 

argued that there was more than one person involved in the victim’s disappearance and that 

Tommy Voyles might have been involved. Thus, the State wanted to show the connection 

between the Defendant and Tommy Voyles. The defense pointed out that the only 

testimony regarding Tommy Voyles was that he had been previously married to the victim. 

The State further explained that “there appear to be multiple people involved in this” and 

that one of the individuals involved was identified by a witness as Billy Voyles. Thus, 

argued the State, “the fact that [the Defendant] has a close connection with a Tommy 

Voyles would be relevant.” The trial court admitted the testimony, noting that it was “not 

extremely probative but there’s absolutely no unfair prejudice.”

The evidence does not support the trial court’s determination that evidence 

attempting to connect the Defendant with Tommy Voyles was relevant. The evidence was 

too remote to be relevant to a material issue in the case. Tenn. R. Evid. 401 and 402. There 

was testimony that Tommy Voyles and the Defendant had been incarcerated in the same 

facility but not that they knew each other, were housed together, or interacted in any 

capacity during that time. Even if a “close connection” between the Tommy Voyles and 

the Defendant were proved, that connection does not result in a conclusion that a 

connection existed between the Defendant and Billy Voyles. The court’s admission of this 

irrelevant evidence was error, but we conclude that the error was harmless based upon the 

overwhelming circumstantial evidence of the Defendant’s guilt. See Tenn. R. App. P. 

36(b). The Defendant is not entitled to relief on this basis.

XIV. Prior Testimony of Unavailable Witnesses

The Defendant contends that the trial court erred in allowing previous testimony 

from witnesses, along with related exhibits, who were unavailable at the second trial. He 

alleges that the admission of this testimony was unfair because the witnesses were 

questioned by his previous counsel, who were found to be constitutionally ineffective. The 

State responds that each of the unavailable witnesses was subject to cross-examination and 

that counsel from the Defendant’s first trial were not ineffective in questioning witnesses.
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Pursuant to Tennessee Rule of Evidence 804(b), the former testimony of a declarant 

who is currently unavailable to testify is admissible. “Former testimony” is “[t]estimony 

given as a witness at another hearing of the same or a different proceeding . . ., if the party 

against whom the testimony is now offered had both an opportunity and a similar motive 

to develop the testimony by direct, cross, or redirect examination.” Tenn. R. Evid. 

804(b)(1). The similar motive requirement is met when the issues in the present case are 

“sufficiently similar” to the issues in the case in which the prior testimony was 

given. See State v. Howell, 868 S.W.2d 238, 252 (Tenn. 1993). The Constitution of the 

United States provides the accused in a criminal prosecution the right “to be confronted 

with witnesses.” U.S. Const. amend. VI.; see also Tenn. Const. art. I, § 9. However, “the 

Confrontation Clause only guarantees ‘an opportunity for effective cross-examination, not 

cross-examination that is effective in whatever way, and to whatever extent, the defense 

might wish.’” Pennsylvania v. Ritchie, 480 U.S. 39, 53 (1987) (quoting Delaware v. 

Fensterer, 474 U.S. 15, 20 (1985)). Our courts have upheld the admission of prior 

testimony given at a preliminary hearing, see State v. Bowman, 327 S.W.3d 69, 88-89 

(Tenn. Crim. App. 2009), and in another state, see Howell, 868 S.W.2d at 252.

The prior testimony of eight witnesses was read into evidence at the Defendant’s 

trial. With the exception of one witness, the prior testimony was from either the 

Defendant’s preliminary hearing or his first trial. The exception was the testimony of Dixie 

Presley, who testified at the previous trial and at the Defendant’s post-conviction 

evidentiary hearing. The post-conviction court determined that trial counsel were 

ineffective for failing to cross-examine Ms. Presley about the two men she saw at the motel 

on the night of the victim’s disappearance. However, she was specifically questioned about 

this matter at the post-conviction hearing, and this testimony was read into evidence at the 

Defendant’s second trial. Therefore, any failure to effectively cross-examine Ms. Presley 

at the first trial was satisfied by her questioning at the post-conviction hearing and the 

subsequent introduction of this evidence at the second trial.

The record reflects that the Defendant had an opportunity to, and in fact did, crossexamine each witness. The Defendant had a similar motive to develop the testimony of 

these witnesses during examination in the prior proceedings in which he was facing the 

same charges. Other than the exception discussed above, the Defendant was granted postconviction relief on the basis that his counsel were ineffective in investigating the case, not 

in examining witnesses. The Defendant has not cited any cases holding that prior testimony 

is inadmissible when post-conviction relief is granted for a reason unrelated to counsel’s 

examination of witnesses. Accordingly, he is not entitled to relief on this basis.

The Defendant also argues that admission of this prior testimony violated his Fifth 

Amendment rights. He did not object on this basis at trial and does not elaborate on this 
- 66 -

issue in his brief. See Adkisson, 899 S.W.2d at 634; Tenn. Ct. Crim. App. R 10(b). We 

review the issue for plain error.

Because we have determined that admission of the prior testimony was proper, we 

conclude that the Defendant has not shown that his due process rights were violated in this 

respect. No clear and unequivocal rule of law was breached, and the Defendant is not 

entitled to relief on this basis.

XV. Admission of Richard Rimmer’s Prior Inconsistent Statements

The Defendant alleges that the trial court should not have admitted Richard 

Rimmer’s prior inconsistent statements and related exhibits as substantive evidence. The 

State asserts that this evidence was properly admitted as a prior inconsistent statement and 

as past recollection recorded.

At trial the Defendant’s brother, Richard Rimmer, testified that he could not recall 

giving a statement to the police in 1997. The State showed Mr. Rimmer a copy of a 

statement dated February 18, 1997, and although he recognized his signature on the 

statement, he did not remember giving the statement. The prosecutor asked Mr. Rimmer 

about each question and answer provided in the statement. In two instances, he denied 

providing a particular answer, but he mostly stated that he had no memory of the statement. 

He testified that he had suffered several head injuries, which impacted his memory. The 

State also showed him drawings he allegedly made, but he denied making the drawings.

The State sought to have the statement and drawings admitted as substantive 

evidence under Tennessee Rule of Evidence 803(26). The trial court found that for the 

statements Mr. Rimmer denied making, they were prior inconsistent statements under 

Tennessee Rule of Evidence 613(b) and were admissible, if the court found they were 

trustworthy, pursuant to Rule 803(26), providing a hearsay exception for prior inconsistent 

statements. For the statements Mr. Rimmer did not remember making, the court found that 

he was an unavailable witness pursuant to Rule of Evidence 804(a)(3), and those questions 

and answers could be read to the jury. Both sides presented testimony relevant to 

competency at the time the statement was given.

The defense called Mr. Rimmer’s mother, Sandra Rimmer, who testified that Mr. 

Rimmer had received disability benefits since 1990 or 1991 due to a head injury that caused 

brain damage. She stated that his daily activities were impacted and that he “sometimes . 

. . thinks things are happening [that were] not happening.” Ms. Rimmer admitted that in 

1997, Mr. Rimmer was capable of living on his own, managed daily activities without 

assistance, and worked to support himself. She also said he was competent to enter into a 

lease agreement.
- 67 -

The State called Sergeant Helldorfer, who testified that he met with Mr. Rimmer on 

February 13 and 18, 1997. His impression was that Mr. Rimmer fully understood the 

questions asked and answered them appropriately. Sergeant Helldorfer said that he did not 

ask leading questions and that Mr. Rimmer provided the details. The February 18 

conversation was memorialized in a written statement. The officer also testified about Mr. 

Rimmer’s drawings. One drawing depicted the location of the blood in the backseat, and 

the other was a drawing of the shovel, of which the Defendant asked Mr. Rimmer to 

dispose. Sergeant Helldorfer confirmed that the statement and drawings about which Mr. 

Rimmer had been questioned were those obtained by Sergeant Helldorfer on February 18, 

1997.

In assessing whether the evidence was trustworthy, the trial court noted the level of 

detail contained in Mr. Rimmer’s answers. The court further found that the statement 

appeared to come from a competent person and not from someone who was intellectually 

disabled. The court determined that the statement was given under circumstances 

indicating its trustworthiness.

The trial court determined that the statements Mr. Rimmer denied making were 

admissible pursuant to Rule 803(26). The court further ruled that the drawings could be 

admitted into evidence, as Mr. Rimmer had denied making them. However, as to the 

statements for which Mr. Rimmer claimed a lack of memory, the court found those were 

not inconsistent statements and could not be admitted under 803(26). Rather, the court 

found that portions of the statement qualified as a past recollection recorded pursuant to 

Rule 803(5). Thus, those portions could be read into evidence but not admitted as an 

exhibit.

Hearsay is defined as “a statement, other than one made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove the truth of the matter 

asserted.” Tenn. R. Evid. 801(c). As a general rule, hearsay is not admissible during a 

trial, unless the statement falls under one of the exceptions to the rule against hearsay. 

Tenn. R. Evid. 802. However, many exceptions to the rule against hearsay exist. 

Tennessee Rule of Evidence 803(26) provides that a prior inconsistent statement that is 

otherwise admissible under Rule 613(b) is admissible as substantive evidence if the 

following prerequisites are met:

(A) The declarant must testify at the trial or hearing and be subject to 

cross-examination concerning the statement.

(B) The statement must be an audio or video recorded statement, a 

written statement signed by the witness, or a statement given under oath.
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(C) The judge must conduct a hearing outside the presence of the jury 

to determine by a preponderance of the evidence that the prior statement was 

made under circumstances indicating trustworthiness.

This rule has been interpreted to apply when a testifying witness claims a lack of 

memory. State v. Davis, 466 S.W.3d 49, 64 (Tenn. 2015).

Tennessee Rule of Evidence 613(b) permits the use of extrinsic evidence of prior 

inconsistent statements for the purpose of impeachment. The Rule provides that 

“[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless 

and until the witness is afforded an opportunity to explain or deny the same and the opposite 

party is afforded an opportunity to interrogate the witness thereon, or the interests of justice 

otherwise require.”

Additionally, Rule 803(5) provides another exception to the hearsay rule, which is 

commonly referred to as past recollection recorded. That rule deems admissible

[a] memorandum or record concerning a matter about which a witness once 

had knowledge but now has insufficient recollection to enable the witness to 

testify fully and accurately, shown to have been made or adopted by the 

witness when the matter was fresh in the witness’s memory and to reflect that 

knowledge correctly. If admitted, the memorandum or record may be read 

into evidence but may not itself be received as an exhibit unless offered by 

an adverse party.

The Defendant alleges that Mr. Rimmer’s prior statement should have been 

considered by the jury for impeachment purposes only. However, Rule 803(26) provides 

that an inconsistent statement may be admitted as substantive evidence when certain 

conditions are satisfied. Mr. Rimmer testified at the trial that the statement was written 

and signed by him, and the trial court conducted a jury-out hearing during which it 

determined the statement was trustworthy. The court did not err by admitting the prior 

statement pursuant to Rules 613(b) and 803(26). Additionally, the statement was properly 

admitted as a recorded recollection under Rule 803(5). The statement was taken shortly 

after the events in question, and Mr. Rimmer no longer remembered the statement. Further, 

the court allowed the statement to be read into evidence but did not admit it as an exhibit. 

Accordingly, Mr. Rimmer’s prior statement was admissible under 803(26) and 803(5), and 

the Defendant is not entitled to relief on this issue.

The Defendant again asserts a general Fifth Amendment challenge to the admission 

of this evidence, although he did not object on that basis at trial and does not provide 
- 69 -

meaningful argument on the issue in his brief. See Adkisson, 899 S.W.2d at 634; Tenn. Ct. 

Crim. App. R 10(b). Our review is limited to plain error. In that regard, we conclude that 

the Defendant has not established that he is entitled to plain error relief.

XVI. Kenneth Falk’s Testimony

The Defendant argues that the trial court erred in prohibiting the testimony of 

attorney Kenneth Falk regarding the success of a lawsuit concerning conditions at the 

Johnson County Jail in Indiana. The State responds that the evidence was properly 

excluded as it was irrelevant.

The Defendant offered the testimony of Mr. Falk to establish that the Defendant’s 

escape attempts were related to the conditions at the jail and did not reflect a consciousness 

of guilt. The State objected on relevancy grounds. The trial court allowed the testimony 

to rebut the implication that his escapes were based on guilt. However, the court prohibited 

Mr. Falk from testifying about any details the Defendant discussed with him.

Mr. Falk testified that was legal director of the American Civil Liberties Union 

(ACLU) of Indianapolis, Indiana. He said that in 1997, the Defendant contacted his office 

concerning the conditions at the Johnson County Jail. His office filed a lawsuit based on 

the Defendant’s complaints, although it was filed on behalf of other inmates because the 

Defendant was no longer confined in the jail by the time the lawsuit was filed. When the 

defense asked Mr. Falk whether the lawsuit was successful, the State objected. The trial 

court sustained the objection, stating there was no need “to talk about what happened in 

the lawsuit.”

The trial court did not abuse its discretion in limiting Mr. Falk’s testimony. The 

defense’s stated purpose in offering the evidence was to provide a reason, other than guilt, 

for the Defendant’s escape attempts. Mr. Falk established that the Defendant complained 

about the conditions and that a lawsuit was filed as a result. The court did not abuse its 

discretion in limiting the details of the lawsuit, including whether it was successful. The 

Defendant is not entitled to relief on this basis.

The Defendant maintains that excluding this evidence violated the Fifth 

Amendment of the United States Constitution. He did not object on this basis at trial and 

does not elaborate on the issue in his brief. See Adkisson, 899 S.W.2d at 634; Tenn. Ct. 

Crim. App. R 10(b). Thus, our review is limited to plain error.

To determine whether the exclusion of this testimony to the level of a constitutional 

violation, we consider the following: (1) whether the evidence is critical to the defense, (2) 
- 70 -

whether it bears sufficient indicia of reliability, and (3) whether the interest supporting 

exclusion is substantially important. See Brown, 29 S.W. 3d at 433-34.

The Defendant has not proven that the evidence was critical to his defense, and 

therefore, no substantial right was adversely affected. As noted above, the Defendant was 

able to establish through Mr. Falk’s testimony that conditions at the jail led the ACLU to 

file a lawsuit, which provided an alternative reason for the Defendant’s escape attempt. 

We cannot conclude that additional testimony that the lawsuit was successful would have 

changed the outcome of the trial. Accordingly, plain error relief is not warranted.

XVII. Marilyn Miller’s Testimony

The Defendant asserts that the trial court erred in not allowing Marilyn Miller to 

give an opinion on the length of time that the maroon Honda should have been kept by law 

enforcement. He alleges that her testimony would have supported his request for 

a Ferguson jury instruction. He claims that exclusion of this testimony violated Rules of 

Evidence 401 and 402. The State contends that the exclusion was proper and argues that 

the decision to provide a Ferguson instruction was a question of law for the court and that 

Dr. Miller’s testimony would not have assisted the jury. The State further responds that 

the proffered testimony was outside the scope of Dr. Miller’s expertise.

Dr. Miller testified that she was an associate professor of forensic science at Virginia 

Commonwealth University. She had a bachelor’s degree in chemistry, a master’s degree 

in forensic chemistry, and a doctorate in education. Before teaching, she spent fourteen 

years working as a forensic scientist and a crime scene investigator for three law 

enforcement agencies. Her duties included responding to and investigating crime scenes 

and analyzing evidence in a laboratory. She had taught for twenty-two years in the field 

of forensic science and crime scene investigation. The trial court admitted Dr. Miller as an 

expert in crime scene investigation, crime scene reconstruction, forensic science, and 

serology and blood spatter analysis.

The defense asked Dr. Miller whether she had an opinion regarding the length of 

time the maroon Honda should have been retained by law enforcement. The State objected, 

and the trial court sustained the objection. The court acknowledged that Dr. Miller was a 

crime scene expert but found that it was improper for her to give an opinion about the duty 

to preserve evidence as it related to Ferguson.

The Defendant asserts that this limitation violated Rules of Evidence 401 and 402. 

As previously discussed, Tennessee Rule of Evidence 401 defines “relevant evidence” as 

“evidence having any tendency to make the existence of any fact that is of consequence to 

the determination of the action more probable or less probable than it would be without the 
- 71 -

evidence.” Rule 402 provides, in part, that “[e]vidence which is not relevant is not 

admissible.”

The Defendant contends that Dr. Miller’s testimony would have assisted the jury in 

understanding “that the defense was not given ample opportunity to inspect and test the 

maroon Honda.” However, we agree with the State that this matter was relevant to whether 

there was a duty to preserve, and that was an issue solely within the purview of the trial 

court. Accordingly, the court did not abuse its discretion in ruling the testimony was 

inadmissible.

The Defendant contends that exclusion of this evidence violated the Fifth 

Amendment. Because he did not raise this issue at trial and does not provide argument 

regarding this issue in his appellate brief, our review is limited to plain error. See Adkisson, 

899 S.W.2d at 634; Tenn. Ct. Crim. App. R 10(b). We conclude that the Defendant failed 

to meet his burden in proving that exclusion of Dr. Miller’s testimony violated a clear and 

unequivocal rule of law. The evidence was not critical to the defense because the issue of 

the duty to preserve evidence is a matter of law for the trial court’s determination. Dr. 

Miller’s testimony would not have assisted the jury in its resolution of any issue in the case. 

The Defendant is not entitled to relief on this basis.

XVIII. Documents Related to Lawsuit against Shelby County Jail

Next, the Defendant asserts that the trial court should have admitted into evidence 

another prisoner’s affidavit about the prisoner’s experiences in the Shelby County Jail and 

about a 2000 contempt order. The State disagrees, arguing that these documents lacked 

probative value because they related to the jail’s conditions when the Defendant was no 

longer confined there and that the affidavit was inadmissible hearsay.

Attorney Robert Hutton testified that in 1996 or 1997 he filed a lawsuit against the 

Shelby County Jail, alleging that jail conditions violated the Eighth Amendment to the 

United States Constitution. Shelby County stipulated that the conditions were 

unconstitutional and agreed to make changes to the facility. The defense attempted to 

admit several documents related to the lawsuit, and the State objected. One of the 

documents was described as a contempt order, which contained “graphic, specific 

instances, everything from smack down tournaments . . . to gang rapes.” The State argued 

that no evidence reflected that the Defendant had personal knowledge of these activities 

and that it was irrelevant to show why he attempted to escape. The State also noted that 

several of the documents pertained to times when the Defendant was no longer confined at 

the jail. The defense argued that the documents described the jail as a “hell hole” and that 

the documents were relevant to establishing the Defendant’s state of mind at the time of 

the attempted escape.
- 72 -

The trial court found that the general information relating to the conditions at the 

jail and the county’s admission that they were unconstitutional were admissible. It 

excluded evidence of specific instances of conduct at the jail, unless the Defendant could 

establish a link between himself and the conduct. The court stated that the Defendant had 

“a right to show that the jail conditions were bad, as a possible reason that he might escape, 

but as far as showing that some gang member raped some other gang member in the jail, . 

. . that is far [afield].” Thus, the court permitted the defense to present the consent order 

in which Shelby County admitted the conditions were unconstitutional but not the 

additional litigation documents because “the majority of which took place when [the 

Defendant] was not in [the] jail.”

The purpose of the evidence was to provide a reason for the Defendant’s attempted 

escape other than a consciousness of guilt. Mr. Hutton’s testimony and the consent order 

established that conditions at the jail were unconstitutional and that the County agreed to 

make changes. The excluded documents generally detailed specific instances of violence 

and sexual assault, but the incidents were not connected to the Defendant, and he did not 

establish the excluded documents relevance. Therefore, the trial court did not abuse its 

discretion by prohibiting the admission of the relevant documents, and the Defendant is 

not entitled to relief on this basis.

The Defendant asserts that the exclusion of this evidence was a violation of the Fifth 

Amendment of the United States Constitution. He did not assert that issue at trial, and his 

cursory treatment of the issue in his brief qualifies it for waiver. See Adkisson, 899 S.W.2d 

at 634; Tenn. Ct. Crim. App. R 10(b). Our review is limited to plain error. We conclude 

that the specific instances of conduct the Defendant sought to introduce were not critical 

to the defense because nothing connected the Defendant’s experience at the jail to the 

unconstitutional conduct. Accordingly, the trial court’s exclusion did not affect the 

outcome of the trial. The Defendant has not established plain error and is not entitled to 

relief on this basis.

XI[X]. Non-Capital Sentencing

Finally, the Defendant raises one sentencing issue related to the application of an 

aggravating factor relative to his aggravated robbery conviction. He asserts that proof did 

not support a finding that he was a leader in the offense and that the trial court erred by 

applying this factor and ordering the sentence for aggravated robbery to be served 

consecutively to the death sentence. The State responds that the Defendant has waived this 

issue for failing to include a transcript from this portion of the penalty phase. Alternatively, 

the State asserts that the evidence supported application of the enhancing factor.
- 73 -

As the appellant, it was the Defendant’s burden to prepare an adequate record for 

appellate review. See State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). In the absence 

of an adequate record, this court must presume that the trial court’s ruling was 

correct. See State v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993); see 

also State v. Ivy, 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993) (holding that when the 

appellant contends that the sentence is excessive but does not include a transcript from the 

sentencing hearing, the issue of excessive sentences will be considered waived); Tenn. R. 

App. P. 24(b).

Without a transcript of the non-capital sentencing hearing, this court cannot evaluate 

the trial court’s application of the enhancement factor, and we presume the court’s action 

was correct. The Defendant is not entitled to relief on this basis.

X[X]. Mandatory Review

[Omitted]

[CONCLUSION]

[Omitted]