### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs J

une 20, 2001
STATE OF TENNESSEE v. ROBERT EA RL JOHNSON
Direct Appeal from the Criminal Court for Davidson County No. 98-A-87 J. Randall Wyatt, Jr., Judge

No. M2000-01647-CCA-R3-CD - Filed October 8, 2001

The defendant, Robert Earl Johnson, was convictedof first-degr ee murder and se

ntenced to life in prison w ithout the possibility of parole. In this appeal, Defendant arg ues insufficiency of the evid ence, i mproper investigative procedures by the police, error s by the trial court regarding admissibility

of evidence and jury

instructions, impro

per comments

by the prosecutor during closing argument, sentencing errors, and ineffective assistance of counsel. After a review of the record, we affirm the judg

ment of the trial c

ourt. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt Affirmed.

T HOMAS T. W OODALL , J., de livere d the opinion of the court, in which D AVID G. H AYES , J., and T ERRY L AFFERTY , Sp.J., joined.
Larry B. H oove r, Nashville, Tennessee (on appeal); Karl Dean, District Public Defender; Wendy Tucker, Assistant Public De fender; and Jodie

Bell, Assistant Pub

lic Defender, Nashville, Tennessee (at trial) for the appellant, Robert Earl Johnson.

Paul G. Summers, Attorney General and Reporter; El izabeth B. Marney, As sistant Attorney General; Vict or S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION
The defendant, Robert

Earl Johnson, and his brother, Roderick Johnson, were indicted for first-degree

murder in connec

tion with the killing of William Edwin Binkley on October 24, 1997. A Davidson County jury found De fen dant guilty of first degree murder and his brother, thecodefendant at trial, gui l ty of second-degree murder. After a sentencing hearing, the jury found sufficient evidence of a statutory aggrava ting ci rcumst

ance in Defendant’s case, i.e., that “the murder
was especially

heinous, atrociou

s, or cruel in that it involved torture or serious physical abuse bey ond that necessary to produce death,” see Tenn. Code Ann. § 39-13-204(i)(5), and senten ced him, accordingly, to life without the possibility of parole.-2-

On appeal, Defend

ant specifically

argues the foll

owing issu es: (1) the evidence was insufficient

to support his convic

tion; (2) t he trial court erred by allowing the victim’s hearsay statement into evidence at trial; (3) the tri al courterred when it all owed a witness to te

stify in violation of Tenn. R. Evid. 61 5; (4) the trial co urt erred by

allowing the prosecutor to make improper and prejudicial remarks during its closing argument; (5) the trial court erred by refusing Defendant’s request to instruct the jury regarding the minimum mandatory length of a sentence for lif e imprisonment; (6) law enforc ement authorities

failed to adequa

tely investig

ate Defendant’s case; (7) the State failed to prove the existence of the statutory aggravating circ umstance beyond a

reasonable doubt; and (8) Defendant received ineffective assistance of counsel at trial.

FACTUAL BACKGROUND

On the even ing o f Oct obe r 24 , 19 97, Wil lia m Ed win Bin kle y was att acke d an d st abb ed fo rtyone times in his apartme

nt on Whitsett Road in

Nashville, Tennessee. The stabbings resulted from
an altercation between the victim, Binkley, and two men who were observed both when they entered the victim’s apartment and when they departed approximately one hour later. One o

f the suspects
was subsequently identified asDefendant by two eyewitnesses present at the c rime scene; the other
was not positively identified by the ey ewitnesses, but Defendant’s brother, Roderick Johnson, was found guilty of se

cond-degree

murder as the othe

r offender in the

kill ing based o n additional evidence presented at the trial. The case of Roderick Johnson is not before the Court in this appe al.

The altercation began shortly after Defenda nt and his brother knocked on thedoor o f Binkley’s apartment at approximately 9:00 p.m. and wer e admitted inside. Within afew minutes,
someof the neighb ors heard y elling and sounds of a struggle

--like someone wa

s being phy

sically thrown and dragged about the apartment. The neighbor living in the apartment adjacent to Binkley’s reported that he heard one of t he p erpe tra tor s sh out , “W here ’s m y mon ey? I want my money ” and “I’m going to shoot you.” The neighbo r wh o lived in the apar

tment directly

below the skirmish heard Binkley cry out, “O

h God, help me. The

y’re killing

me. Oh God, help

me.” The commotion continued for approximately one hour. At least three residents living in nearby apartment s calle d 911 to report the melee, but they were unable to talk with anyone f or at least twenty minutes. The neighbors who did finally make c ontact wit h the emergency dispatcher were infor med that there were not enough police

officers availa

ble to respond to the

ir call.

Vickie Miller, one of the neighbors who became frustrat e d by her own

futile attempts to
secure police assistance, telephoned Binkley’s mother, France s Hampton, at work a nd told her to
come home immediately

“because someo

ne was killing Will

ie [Binkley ].” Hampton lived in the
sameapartment complex as her son. Arriving at home a few minutes later, she observed a crowd of residents gathered at the bottom of the stairs leading to her son’s apartment. They cautioned her that the two men seen entering Binkley’s apartment earlier had not come out yet. Notwithstanding the warning, Hampton marched up the stairs and banged the door to her son’s apartment three or four times shouting, “Open the door. Open the door.” She received no response.-3-

Hampton had walked half-way back down the stairs when the door to Binkley’s apartment suddenly flew open. Two African-American men emerged. The first was tall and slim; the second
was shorter and heavier. Both men passed Hampton, who had remained standing on the stairs, and then pushed past the crowd which had gathered at the bottom. As the stockier man passed Hampton, he pausedbri efl y. She noticed he was sweating profusely; he wiped his face w ith a cloth and threw it on the ground. Hampton “looked him right in the face” at this point. Although it was dark that night, Hampton claimedshe was able to see the stockier man well

enough to positive

ly identify

him later as the Def

endant.

The two men headed immediately for the parking lot. Hampton called out for som

eone to get the license

number of

their car, and then ran up the stairs into her son’s apartment. The interior was in great disarray, and Binkley was lying on the floor in a fetal position. His neck was cut and blood was everywhere, but he was still conscious and made the following state ment to Hampton: “Momma, I didn’t owe th em any money . I didn’t owe them any money.” As the ambulance prepared to transport Binkl

ey to Vande

rbilt Hospital, the police officers began to arrive. Hampton followedthe ambulance and h er son to Vanderbilt Hospital where he died three days later, on October 27, 1997. The cause of death was determined to be the combined result of forty-one stab wounds to the head, neck, tors o, and extremities; s

ome of the wounds w

ere superficia

l, but others, i.e., the wounds to the lun g and liver, wer

e termed “critic

al.” The doctor w

ho testif ied at tria

l regarding the cause o f de ath further opine d that more than one

weapon was proba

bly used to kil

l Bin kle y.
Derrick Shawn Barrett and his wife liv ed i n th e sam e apa rtm ent com ple x as Bin kle y. Just prior to the stabbing incident, at approximately 8:30 or 9:00 p.m., the Barretts were returning from
a shopping trip when Mr. Barrett noticed an African-American infant asleep in a ve hicle as they walkedthrough the apa

rtment parking l

ot. The baby

was strapped into

a child’s car

seat located on the back seat of the vehicle, the windows were down, and the vehicle was unattended. The Barretts
were concerned for the

baby’s saf

ety. Since th

ey could see the parking lot from their apartment, they went home and kept a watch on the car from their window. After twenty or thirty minutes passe d and no one came to

check on the baby, Barrett wrote down the license plate number of the car, and Mrs. Barrett called 911 to report the possibility that someone m ay h ave abandoned a child. Approximately

one hour after Barrett first noticed the infant, he observed two men walk hurri

edly
across the parking lot and get into the car with the baby in it. I

t was dark and he c

ould not see their face s, but he was able to determine that they were African-A merican. Barrett described the talle r man as extremely

“hyper” a

nd “on the move.” T

he shorte r, hus ky man seeme

d calmer and “in control.” The husky man drove the vehicle; he backed up slowly, and then headed for

the exit with the headlights off. When the men reached the road, the headlights came on and the vehicle bega n to accelerate. When the police arrived, Barrett gave them the lice nse number of

the car. Because Binkley’sand Barrett’s apartments were located in different buildings, Barre tt heard none of the commotio n that had o ccurred at Bi nkley’s build ing.

At 10:15 p.m. that same evening, Brandy Stoops, another neighbor, left her apartment and walkedtoward the parki

ng lot. Like th

e Barretts, Stoops’ apartment

was located too great a distance-4-

from Binkley’s apartment

for her to hear any of

the disturbance while at home. When she reached the parking lot, however, she heard numerous people shouting for an ambulance. At the same moment, she observed two African-American men pushing through a crow

d of people, appa

rently in an attempt to reach

a blue, four-door car

parked in the parking lot. One man was thin, the other
was husky, and she t

estified at tria

l th at s he co uld see t he fa ce of the hus ky on e “cl ear a s da y” because he stared at her

when they passed by. When the two men reached the car and the thin man hesitated, the husky one banged on the roof of the car shouting, “Come on, let’s go, let’s go,” and then they both jumped into the vehicle. The husky man entered the driver’s side and the men started to drive away

with the headlig

hts off, but turned them on when they reached the street. Day s later, when Stoops discovered what had happened to Binkley, she told the police what she had witnessed and selected Defendant from a photog raphic lineup as t he husky man

she saw in the par

king lot. Stoops said that she was unable to identify the thin man because the light was poor and his body was turnedaway f rom h er; by contrast, she claimed her view of the husky suspect was much better. When asked at

trial whether she was certain that Defendant was the husky man she observed in the park ing l ot, she ans were d aff irm ati vel y.
Officers from the Metro Police Department did not arrive at the crime scene until the Metro Fi re De partment was in the process of transporting Binkley to the hospital. (The ac tual time the police arrived

was not given in the record.) The first police officer on the scene, Edward Westerman, commenced

the investigation. Derrick Barrett gave him the license number of the vehicle which had containedthe unattended baby and which he had also observe

d leaving the pa

rking lot with its lig

hts off. A registration

check revealed the

vehicle was owned by Roderick Johnson, Defendant’s brother and co-defendant a

t trial. At approximately 11:15 p.m., Officer George Bouton, from the Identification

Division, also arrived to recover and collect evidence Officer Bouton took photographs of the blood stains locatedthroughout Binkley’s apartment and the broken furniture in eachroom. He also atte mpted to recover

fingerprints, b

ut was unab le to obtain any that were identifiable. Bouton explained at trial that he d i d not process the white towel allegedly used by Defendant to wipe his face because no one informed him of its existence or potential relevance.

When Binkley died on October 27, 1997, the case of ficially be came a homicide investigation and Detective Jef

f West, assigned t

o the Homicide Division, was placed in charge. West first reinterviewed

the witnesses who were at the c rimescene the night of the killing, including Hampton, the victim’s mother; the Barretts, who reported the license number of

the suspicious vehi

cle; Stoops, the witness who saw the husky suspect “clear as day ”; and the various neighbors who were situated at the bottom

of the sta

irs when t

he two susp

ects exite d Binkley ’s apartm ent. We st was able t o obtain consistent

descriptions of the suspects, but he did not acquire any

names as a result

of these interviews.

Defendant

became a suspect in the killing shortly after the police discovered that t

he vehicle observed by Barre tt at the crime scene was registered to Defendant’s brother, Roderick Johnson, and Roderick informed Detective West that he had met the victim through Defendant. The day after the police talke d with Roderick, October 28, 1999, West showed the victim’s mother, Hampton, a photographic

lineup c onsisting of twelve photographs of African-American males: two groups of-5-

six photographs each. Photographs of Defendant and his bro t her were included in the lineup but pl ace d in different groups. Hampton identified Defendant as the man she saw coming out of her son’s apartment, but did not recognize Rod erick from his photograph. L ater, Stoops similar

ly identified Defendant from an ide n tical photographic array but similarly failed to recognize Roderick. The remainder of t

he witne sses who were present at the apartment complex during the stabbing fail ed to r ecognize either Defendant or Rod

erick from the ph

otographs. Reg

arding photogr

aphic lineups in general, West testified at trial that it is the policy of the Metro Police Department to do whatever they can to ensure that the photographic lineups th ey use are not suggestive: the photographic

arra ys usually cont

ainpersons of the same race, age, build, hairstyle, et c etera. When askedat trial why the investigators did not conduct a physical

lineup in Defenda

nt’s case, West repliedthat photograph

ic lineups are quicker and easier to perform. West claimed that, for practical reasons, the police department has a lmost stopped using

physical lin

eups altogethe

r, and in the ten years he has been a detective, he has neve r used one.

On November 5, 1997, Detective West gave Officer Charles Ray Blackwood, assigned to the Identification

Division, a screwdriver

to process as evidence. The screwdriver was discovered by Binkley’smother, Hampton, approximately a week after the stabbing as she was straightening her son’s apartment. It was jammed under a coffee table

with only the tip visible. West and Blackwood discussed whet her th e screwdriver should be processed for blood or fingerprint evidence, and ultimately

decided that blood

evidence would b

e most helpful to

the case. Since the screwdriver had been handled since the

killing, the offic

ers believed tha

t tests for finge

rprints would not be

fruitful.

Th e next da y, November 6, 1997, Officer Ray mond Rader was assigned to process the vehicle belonging to Roderick Johnsonwhich Barrett had observed leaving the crime scene after the stabbings. Officer Rader examined the interior for possible blood samples and took photographs of the vehicle, but he did

not attempt to reco

ver prints becau

se he received no re

quest from any

one to do so. On the driver’ s seat was a stain which appeared

to be blood. Samples of material recovered from the seat of the vehicle and the screwdriver were sent to the Tennessee Burea u of Investigation’s crime lab for analysis, which subsequently deter mi ned that both items contained human blood bel ongi ng to the vic tim , Bi nkl ey.

At trial, Defendan

t testified that he

met the victim, Bink

ley, appro ximately a ye ar prior to Binkley’sdeath. At that

time, Binkley and Defendant lived within a couple of blocks of each other and used drug s together (specifically, marijuana, cocaine, a nd alcohol). Defendant claimed that although he eventually quit using drugs, he maintained a friendship with Binkley to help him quit also. Defendant would also see Binkley frequently on his way to or

from the local pay telephone. Because Defendant did not have a telephone in his home, he used the pay phone near Binkley’s apartment to make calls and would stop by the apartment to visit him. Defendant testified that his brother, Roderick, also knew where Binkley lived.

Defendant

fiurther testified t

hat he oft en loaned Binkle y money . For instance, i n early October 1997, Defendant observed Binkley fighting with some people over a debt for coc aine that
was given Binkley on credit. Defendant paid Binkley ’s debt to keep the drug dealers from harming-6-

him. Lat er that same month, Binkley approached Defendant for more money. Binkley confe ssed that he had “smoked his money up,” but said that he wou

ld be evicted fro

m his apartment if

he could notpay rent. Defendant initially ref used to help him. However, he later relented and gave Binkley approximately

forty-five dollars. Defendant testified that he never expected Binkley to pay him back for that favor, or any other “loan” for that matter.

Defendant

testified that

on the evening of October 23, 1997, the day prior to the stabbing, he bought himself something to drink at a local liquor

store and then stop

ped by Bink

ley’s apar tment. Binkley and a friend of his named Joe were smoking cocaine and drinking beer, and Def endant drank for a while with them. Whe n Binkley st

epped into anothe

r room, Joe started r

ifli ng throu gh Binkley’swallet. Defendant told him to stop it, but Joe became belligere nt a nd Defendant lef t. Later, Defendant enco

untered Joe aga

in and Joe hit him

withhis fist. Defenda

nt hit Joe back with the bottle he was car

rying, an d headed for Bin

kley’s apa

rtment to make sure

he was all right. Binkley was angry about something and accused Defendant of

rummaging thro

ugh his belongin

gs. Defendant testified that

he triedto explain that Joe was responsible but B inkley was to o “high” to listen. Defendant left Binkley’s apartment--that was the last time he saw him alive.

Defendant

testified that

the next d ay, October 24, 1997, the date of the stabbing, he had a fight with his wife before she went to work. Later that afternoon, Roderick asked him to

come to their sister’s house for dinner, but Defendant declined because he wanted to be at home when his wife returned from wo

rk. His wife arr

ived at home at app

roximately

9:00 or 9:30 p.m. Defendant fixed her dinner, and they stayed hom e for the rest of the eveni ng. At trial, Defendant’s wife corroborated Defendant’s testimony, testifying that he was home when she arrived at 9:15 p.m. and did not lea ve until so metime the next morn ing.
According to Defendant, he first learned of the attack against Binkley on Monday , October 26, 1997. His brother’s fiance erroneously informed him that Binkley had been shot and the police had tried to implicate Roderick. When Defendant arrived at home, his wife told him that the police wantedto talk to him also. He telephoned the police the next day and was arrested on Thursday , October 30, 1997, a few days later.

Defendant

claimed that he voluntarily gave the police

a statement beca

use he had nothing to hide. Defendant

wanted the police

to investigate wh

ether his sister’ s boyfriend , BasoFelder, was the man who was actually with his brother, Roderick, at Binkley ’s apartment. Defendant told the investigators that he and Felder were similar in appearance and Felder wa s freque ntl y seen with Roderick. However, when Hampton was shown a photograph of Felder at trial, she denied that he
was the man she saw coming out of her son’s apartment. In addition, Defendant’s sister, T amm y Denise Chatman, testified

that Felder and

Roderick were a

t home with her on Oc

to ber24, 1997, from approximately

6:00 p.m. until after mid night. At trial, Ro

derick also clai

med to be at his sister’s home on the evening of October 24 and admitted to having no explanation for how his car coul d have been simultaneously observed at Binkley ’s apartment. Roderick admitted that he w a s caring for his fiance’s fifteen-month-old daughter that night and that he often traveled with a baby’s car seat in his vehicle.-7-

Hampton testified that on October 25th or 26th, a day or two before Binkley died, she was riding in the hospi

tal elevator on he

r way to see her son when the door opened and Defendant was standing there, waiting to get on the elev ator. T hey looked at each other for a moment, then Defendant

turned away and qu

ickly disa

ppeared down a stair well. This upset Hampton. She reported the sighting to a doctor, but he assured her that the man she had observed was an employ ee and that herson was safe on the hospital’s “security floor.” Hampton testified that since she had
numerous other thin gs to worry about at the time, she did not report the incident to the police. It was
a day or two later, on October 28th, that Hampton identified Defendant from photographic lin

eups. However, she testified that her identification of

Defendant was based on a comparison of the man in the photograph with the man who emerged from her son’s apartment, and not the man at the hospital. Contrary to H ampton ’s testimony, Defendant testified that he did not recall ever seeing Binkley’smother

at Vanderbilt and, at that time, he did not know Binkley was being treated ther e.
ANALYSIS
I. Sufficiency of the Evidence

Defendant

contends that the evidence adduced at trial is insufficient to sustain his conviction. Spe cif ica lly, Defendant asse rts that the eviden

ce against him is largely circumstantial in nature and that the only dire

ct evid ence presented by the State at trial, namely , the testimony of the two eyewitnes ses, is fraught with evidentiary problems. In sum, Defe ndant argues that

becau se the circumstantial evidence, stand ing alone, is

insufficient to co

nvict him and the ey

ewitnesstestimony is fatally unreliable, the jury’s verdic t cannot stand. We disagree.

When ev identiary sufficiency is questioned on appe al, the standard of review is whet her, afte r considering all the evidence in the light most favorable to the State, any rationa l trier of fact c

ould have fo und all the essential elements of the offense beyond a reasonable doubt. See Ja ckson v

. Virginia , 443 U. S . 307, 318-319, 99 S. Ct. 2781, 2789, 61 L .Ed.2d 560 (1979); State v. Hall , 8 S.W.3d 5 93, 599 (Tenn. 1999); Tenn. R. App. P. 13(e). In determining the sufficiency of t h e evidence, we will not reweigh the evidence or substitute our own inferences for those drawn by

the trier of fact. State v. Pierce , 23 S.W.3d 289, 293 (Tenn. 2000); State v. Ca bbage , 571 S.W.2d 832, 83 5 (Ten n.1978). Instead, on appeal, the State is entitled to the strongest legitimate view of the evid ence and to all reasonable and legitimate inferences that may be drawn therefrom. H all , 8 S.W.3d at 599. A guilty

verdict by a jury, approved by the trial court, accredits the testimony of the witnes ses for the S tate and resolve s all conflicts in f

avor of the prose

cution’s theory

, effectively removing the presumption of innocence and replacing it with a presumption of guilt. See State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997). Questions concerning the credibility of witnesses, the weight and value of evidence, and factual issues raised by the e vidence ar e matters to be resolved by the trier of fact, not this Court. Pierce , 23 S.W.3d at 293; Bland , 958 S. W.2d at 659 . The defendant bears the burden of demonstrating that the ev i dence is insufficient to support his or her conviction. State v. Pike , 978 S.W.2d 904, 914 (T enn. 1998); State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982).-8-

As relevant here,

first degree murder is defined as the “premeditated and intentional killing of another.” Te nn. Code Ann. § 39-1 3-202 (1997). Af ter reviewing

the facts in the lig

ht most favorable to the State, we find that the evidence is sufficient to support Defendant’s conviction. The proof shows that Defend

ant k new th e victim, Binkley, and where he lived. Binkley ’s mother observed Defendant leavingBi nkley’s apartment with another man only minutes bef ore she discovered

Binkley’s wounded and bloody body therein . Minutes later, another eyewitness saw Defendant

and an unidentifie

d man leaving the

crime scene in a

vehicle which wa

s registered to Defendant’s brother. Binkley’s blood was later discovered on the driver’s se at of that vehicle. Last ly, although five persons gave po lice general p

hysical des

criptions of the tw

o suspects

but were unable to positively i

dentify eith

er man from a phot

ographic lineu

p, all fiv e desc riptions were consistent with each other and also match ed the physical characteristics of Defendant and his brother

. Defendant

maintains that the evidence us ed to prove his guilt w as largely circumstantial. Even so, a crime may be proven wholly by circumstantial evidence. Duchac v. State , 505 S.W.2d 237, 241 (Tenn. 1973). Our reviewof the facts is the same whether the finding of guilt is based on direct or circumstantial evidence. State v. Brown , 551 S.W.2d 329, 331 (Tenn. 1997). Defendant’s principal challenge actually concerns the direct evidence

presented by

the State at trial: the testimony of two eye witnesses . Defendant argues that the eyewitnesses’ testimony must be disregarded as unreliable bec ause, among other things, the photographic lineups from which the ey ewitnesses selected Defendant as the man they observed on October 24, 1997 wer e not prepa

red pro perl y. Defendant

further contend

s that, even if the lineups were reliable, the identification by the victim’s mother cannot withstand scrutiny under the factors set forth in State v. Dyle , 899 S.W.2d 607 (Tenn. 1995). As a preliminary

matter, we note th

at it i s unclear fr om Defendant’s b rief whether he

is arguing that the photographic identifications are inadmissible because improper

preparation caused themto be unnecessarily suggestive, or t hat th e “unreliable” identification evidence was given improper weight by the jurors when they appar ently chose no t to disreg ard it. In add ition to classifying

the photographi

c identif ications as unreliable, Defendant also de scribes them as “tainted,” “faulty,”and “unable to wit hstand scrutiny

” which seems to in

sinuat e inadmissibility. Issues concerning admissibility are usually and properl y raised in a pre-trial mot ion to suppress. No twithstanding this ambiguity, Defendant is not entitled to relief because, for the reasons following , we find the photographic identifications are admissible an d the proper weig

ht to be given this evidence is a mat

ter for the jury

to determine, not th

is Court.

To recount, the two ey ewitnesses i n this case are Hampton, the victim’s mother who identified Defendant as the man she saw leaving her son’s apartment, and Stoops, the neighbor who observed Defendant get into his brother’s vehicl e and drive away . Defendant main tains that both eyewitnes s identifications sh ould be disrega

rded as unreliab

le for two reason

s: (1) the photographi

c lineups failed to contain a photograph of Baso Felder , the man Defendant alleges may have accompanied

his brother on the night of the s tabbing, and ( 2) the lineups fai led to contain photographs of other Africa n-American male

s who frequented

the neig hbor hood surrounding Binkley’s apartment.-9-

Photographs contained in a photographic lineupare not required to mirror the accused. State
v. Hall , 97 6 S. W.2 d 12 1, 1 53 ( Ten n. 1 998 ). T he l aw re qui res mer ely tha t the police refrain from unnecessarily

suggestive identification procedures. See Neil v. Biggers , 409 U.S. 188, 198-99, 93 S.Ct. 375, 381-82, 34 L.Ed.2d 401 (1972). Thus, “a photogr aphic identification is a

dmissible unless, basedupon the totality of the circumstances, ‘the confrontation conducted . .. was so unnecessarily suggestive

and conducive to

irreparable mistaken identification that [the defendant] was denied due processof law.’” Hall , 976 S.W.2 d at 153 (qu oting Stovall v. Denno , 388 U.S. 293, 301-302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, 1206 (1967)).
According to the record, Detective West testified that t he procedure us

ed by the of

ficers to select photographs for the lineup in this case was , as is the practice with all lineups, not weighted for or against any particular person. Fur ther, the police officer

s in charge of th

e investigation d

id everything

practicable to ensure that the identification was free from suggestion on their part, e.g., the photographs we

re of men who wer

e similar with resp

ect to age, build

, and hairsty

le. We note that although a photograph of Baso Felder was allegedly not included in the photographic lineup, the record shows that Hampton had the opportunity to view a photog raph of Felder in court at which pointshe testified that

Felder was not th

e man who came out

of her son’s apa

rtm ent. Thus , it appears that the presence of Felder’sphotograph in the lineup would have b

een immaterial, a

nd its absence cannot be said to h ave prejudiced

Defendant. Since Defendant did not providethis Court witheither a

photograph of Felder or a copy of the photog raphic array he contends was unreliable,
we are unable to co

nsider this specif

ic matter further. As a result, we conclude that the photographic identification was not so unnecessarily suggestive and conducive to irre para b le mistaken identification that Defendant was denied due proce ss of law and, therefore, the identifications from the lin eup were pro perl y adm iss ibl e for con sid erat ion by th e ju ry.
Defendant

also claims that, evenif the photographic lineups were reliable, the testimony of Ham pton cannot withstand s

crutiny whe

n considered unde

r the factors use

d in evaluating e

yewitn es s testimonyset forth in State v. Dyle , 899 S.W.2d 607 (Tenn. 1995). He maintains that bec

ause it was dark and Hampton was distraught, her state of mind was such that she did not have the “capacity and opp ort uni ty” to adequately see Defendant for purposes of reliable identification as required by law.

Def endant’s reliance on Dyle is misplaced. In Dyle , the supreme court promulgat ed jur y instructions to be givenin cases where a witness’ identific

ation of the defe

ndant is a material issue and the defendant requests the instruction. See id. at 612 (the court outlined four factors to be used by the jury in

considering witness identification testimony). In effe ct, Defendant

is arguing that the jury did not pro perly f

ollow the instructions given by the trial judge concerning witness identifica tion and this caused it to g

ive Hampton’s unr

eliable identif

i cation excessive weight. Defendant’s argument is based on pure speculation, however. Our review has revealed no proof in the recor d that the jury committed

any er ror in a rri vin g at i ts v erdi ct, and Defe nda nt’ s br ief fai ls t o ci te t o an y. The proper weight to give Hampton’s testimony turns on her credibility , and questions concerning the credibility

of witnesses, the weight and value of evidence, and factual issues raised by the evidence
are matters for the jury, not this Court. See State v. Bland , 958 S.W.2d 651, 659 (T

enn. 1997 ). We may presume that the jury observed the witnesses at trial and eval uat ed t hei r cre dib ili ty. This Court-10-

will notreweigh evidence or substitute our inferences for those drawn by the jury

. State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). Further more, the recor

d reveals t

hat the jury received proper instructions as promulgate d in Dyle con cerning witnes s testimony. Sin ce a jury is

presumed to follow the ins tru cti ons give n by t he trial judge, State v. Williams , 977 S.W.2d 101, 106 (Tenn. 19 9 8), we may infer by its verdict that the jury rejected Defendant’s account of his activities on October 24, 1997, and accreditedthe testimony of the State’s eyewitnesses. In a similar vein, we may further infer that the jury rejected the testimony of Defendant’s wife, the basis for Defendant’s alibi defense. See Forbes v. State, 559 S.W.2d 318, 324 (Tenn. 1977) (credibility of alibi witnesses and the weight to be given their testimony are determined e xclusively by the jury

).

Defendant

contends that Stoop’s identification was als o un rel iab le. Ess ent ial ly, Defendant claims that Stoops was familiar with his face because he frequented the apartment compl ex and because she s aw him regu larly as he walked by the a partment building to use the pay telephone locatednearby. De

fendant submits tha

t because she co

uld not see clear

ly in the dark conditions that existe d that evening, she subconsciously based her identification on a familiarity with his face, rather than an observation of him in the parking lot. However, this arg ume nt involves a determination regarding Stoops’ credibility which, as noted above, is the sole province of the jur y. Bland , 958 S.W.2d at 659.

On appeal, the State is entitled to the strongest legitimate view of the evidence and al

l reasonable

and legitimate inferences which may be drawn therefrom. Cabbage , 571 S.W.2d at 835. Acco rdi ngly, after a thorough review of the record and the arguments pre se nted, we find the evidence sufficient to sustain Defendant’s conviction. Defendant is not entitled to relief on this issue.
II. Admissibility of V

ictim’s Hearsa

y Statement

Defendant

contends the tria

l court erred by

allowing the vic

ti m’s in admissible hearsay statement into evidence at trial. Defendant asserts that the statement did not qualify as either a dying declaration, Tenn. R. Evid. 804(b)(2), or an excited utterance, Tenn. R. Evid. 803(2). Defendant further argues that, given the emotional impact of the statement and the tenuousness of the State’s
case against Defendant, the trial court’s error cannot be deemed harmless and, thus, his conviction must be reversed and dismissed. We disagree.

Tennessee Rule of

Evidence 804(b)(2) provides the circumstances that allow for the hearsay rule exception known as a dying declaration: “I n a prosecution for homicide, a statement made by the victim while believing that the declarant's death was imminent and co ncerning the cause or circumstances of what the declarant believed to be impending death.”

This Court has previously held that it is not necessary that the declarant st

ate unequivocal

ly
a belief that

death is imminent. State v. Maruja Paq uita Coleman , No. 01C01-9401-CR-00029, 1997 WL 438 169 at * *5, Dav ids on C oun ty (Tenn. Cri m. App., Nashville, July 31, 1997) perm. to app. denied(Tenn. April 1998). “Awareness of impending death has been inferred from the lan guage and condition of the de

clarant, the facts and circumstances surrounding the statement, and medical-11-

testimonyconcerning the seriousness of the vi ctim’s condition.” Id. (ci tat ion s om itt ed). Impo rta ntl y, it is not nece ssary that the victim die shortly after making the statement to qualify for the hears a y exception as a dying declaration if the requirements of the rule a re satisfied. Id.

There are four

preliminary facts that must be proven prior to admitting a hearsay statement under the exception for a dying declaration: (1) the declara nt must be dead, (2) the statement must be admitted only in a homicide prosecution in w hich the declarant is the victim, (3) the statement must concern the cause or circumstances of death, and (4) the declarant must have spoken or written the statement under the belief that death was imminent. See Neil P. Cohen, etal., Tennessee Law of E vid ence, § 835[2] (4th ed. 2000). The last provides the indicia of reliability and truth that justifies admission of the statement. Id. The burden is on the proponent of the hearsay statemen t to justify its admission as an exception to the hearsay rule of exclusion by proving the existence of the preliminary facts by

a preponderance of

the evidence. See State v. Stamper , 863 S.W.2d 404, 405 (Tenn. 1993). If the trial court finds that it is more probable than not that the preliminary

facts exist, the evidence is admissible.

In the case sub judice , the record rev eals that the trial cour

t allowed Hampton t

o testify that Binkley made the following

statement as he la

y bleeding

on the floor of his

apartment: “Momma, I didn’t owe them any money. I didn’t owe them any money.” This statement was allegedly uttered only minutes after the stabbing occurred, and Binkley died three days later.
During the pre-trial hearing on Defendant’s motion to suppress this statement, the trial court ruledthat the statement

was admissi

ble under the dying declaration exception in Tennessee Evidence Rule 804(b)(2). As a basis for its ruling, the trial court specifica lly found t

hat the statement was made by the decla

rant, that is, the victim, who w

as deceased at

the time of the hea

ring; that the ca

se involved prosecution for a homicide; that thestatement concerned the circumstances of the death; and that the declarant ma de the statement w

hile believing th

at his death was imm

inent. The tr

ia l court observed th

at the analy

sis in State v. Maruja Paq uita Coleman , No. 01C01-9401-CR-00029, 1997 WL 438169, D

avidson County

(Tenn. Crim. App., Nashville, July 31, 1997), applied

in this
case and provided the s

tandard for admi

ssibility under this

exception. The trial court further found that the declarant

was conscious of the peril of his situation and believed that death was impend ing. The trial court

noted that, according to case law, the victim is not required to explicitly state that he
or she believes dea

th is imminent to

have this exception apply. Specifically, the trial court found the medical examiner’s report, indicating that the victim suffered from multiple stab wounds to the head, torso, extremities, lung, liver, diaphragm, kidney, and other organs , con firmed that the victim’s condition was sufficiently serious at the tim e of his statement to permit an inference that he was aware of his impending death.
During appellate revie

w, “a trial court

’s fin d ings of fact in a suppression hearing will be upheld unless the evidence prepondera tes o therwise.” State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). Questions of witne ss credibility

, the weight and v

alue of evidenc

e, and resolution o

f conflicts in the evidence are entrusted to the trial court as the trier of fact. Id. The prevailing party in th e suppression hearing is entitled on appeal to the “strongest legitimate view of the evidence at the-12-

hearing as well as all

reasonable and

legitimate

inferences that may be drawn from that evidence.” Id.

Defendant

argues that,

under State v. Hampton , 24 S.W.3d 823 (Tenn. Crim. App. 2000), in order for a statement to qualify as a dying dec laration, the declarant must have “had a certain belief that rapid death was inevitable.” Yet, a close reading of our decision in Hampton reveals that this
was not our

holding, but

a quote from one of a number of treatises examined during the course of
our analysis. See id. at 829. Moreover , “rapidly”

is a highly s

ubjective deter

mination and, possib

ly for this reason, this word was not used in the rule providing this hearsay exception. The law requires only that the declarant believed death was “imminent”; proof that the dying declarant believed that death would come within a specified number of hours or minutes is not reasonable . One authority states that the rationale for this exception is that one facing imminent death will be truthful for fear of “eternal consequences.” SeeNeil P. Cohen, et al., Tennessee Law of Evidence, § 835[2] (4th ed. 2000). Clearly, the

declarant’s belief

is the crucia

l factor. As prev

iously obser

ved, the fact tha

t a victim does not actually die shortly thereafte r does not preclude

its admission as a

dying declaration if the other requirements of the rule are satisfied. Coleman , 1997 WL 438169 at **5.

A lthough Defendant concedes that Binkley was “badly injured,” he asserts that theStat e presented absolutely n

o proof that Binkl

ey had the r

equisite belief in

his own imminent death. We disagree. According to the medical report, the cause of death was determined to be the combined result of forty-one stab wounds to the head, neck, torso, and extremities; some of the wounds were superficial,

but others, i.e., the wounds to the lung and liver, were “critical.” The testimony of the neighbors indicated that Binkley was attacked for almost an hour

before the suspects depart ed. By the time the commotion ended and his mothe r rushed to

his side, Binkley’s blood was everywhe re. Given the facts, Binkley’s belief that his death was imminent can be readily inferred. Since the evidence supports the trial court’s conclusi on that the victim wa

s aware of his impe

nding death

at the time he made the statement to his mother, we cannot say that the evidence

preponderates

against the trial court’ s conc lusion that Binkley’s statement was a dying declaration. Hence, it was admissible

under the hearsay

exception for dying

declaration, Tenn. R. Evid. 804(b)(2), and the trial court did not err. Defendant is not entitled to relief on this issue.

Because we have determined the victim’s statement is admissible for the reasons above, it is unnecessary

to address Defendant’s argument against admissibility under the he arsay exception for excited utterances, Tenn. R. Evid. 803(2). Even if admission of the victim’s hearsay statement
was e rro r, Defendant’s argument that it cannot be harmless “given the emotional impact of the statement and the tenuousness of the State’s case” against Defendant has no merit. Defendant’s brief contains no argument or

citation to authori

ty in support of his assertion that the statement affected the result of his trial. In addition, proof of Defendant’s guilt was not “tenuous,” as he has asserted. Defendant is not entitled to relief on this issue.

III. Tennessee Evidence Rule 615-13-

Defendant co ntends tha t the trial court erred b y allowing a witness to testify in violation of Tennessee Evidence Rule 615. The record reflects that the trial court permitted

the co-defenda

nt, Roderick Johnson, to recall th

e victim’s mother,

Hampton, to testify

after her initia

l t esti mony during the State’s case-in-chief against Defendant. Defendant claims that because Hampton had b een present in the courtroom since her initial testimony, Te nnes see Evidence Rule 615 precluded her from being recalled.

This issue was not

included in Defendant’s motion for new trial. Accordingly, Def endant’s allegationof error may be waived under Rule 3(e) of Te nnessee’s Rules of Appellate Procedure, State v. Walker , 910 S.W.2d 381, 386 (Tenn. 199 5), unless the issue

would result in the dismissal of the prosecution against the accused if found meritorious. State v. Kee l , 882 S.W.2d 410, 416 (Tenn. Crim. App. 1994). The nature of this issue requires it to be included in the motion for new trial.
Notwithstanding waiver, Defen dant would sti ll not be entitled to relief on this issue. The record reveals that

during a jury-out hearing at the close of Defendant’s proof, the trial court heard argum ent concerning thi

s issue from counse

l for the co-def

endant, Roderick

, and counsel fo r Defendant. Roderick wanted to recall Hampton to testify regarding whether she recognized the man in the photograph of Baso Felder as the same man who exited her son’s apartment the night of the stabbing. Defendant’ s counsel ob jected on the gr

ound that allowing

her testimony

would violate Rule 615 of Tennessee’s Rul es of Evidence, “Exclusion of witnesses.” Commonly referred to as “the rule,” Rule 615 requires the court to order witnesses, including rebuttal witnesses, excluded at trial upon request of e

ither party

until after the witness has testified at trial and forbids disclosure of live testimony to th

e excluded witness

es by any means. However, the rule does not forbid testimony of a witness called at

the rebuttal stag

e of a hearing

if, in the court’s d

iscretion, counse

l is genuinely surprisedby the

need for the unsequestered witness’s testimony and demonstrates such need to the satisfaction of the trial court. The rule is activated by request for seque stration by a party, and the record shows that Defendant filed the proper motion requesting that witnesses be sequestered.

At the conclus ion of the j ury-out hearin g, the trial court permitted the co-defendant to recall Hampton to testify, but limited her testimony

to answering one question: whether she recognized the
man in the photograph of

Baso Felder. The

trial court state

d that admitting Ha

mpton’s answer did not thwa rt the purpose of the rule, which is “to keep witnesses from sitting in the cour troom , listening to witnesses that are going before them and then shap

e their testimony to conform to that,” and further noted that “[t]he underlying purpose of a trial is to try to reach the truth.”
After the jury returned, the following colloquy transpired:

Roderick’s Counsel: I’d direct your attention to the photograph that appears on that document. You have previou sly testifie

d that you identified in a photo spread the p hotograph

of Mr. Robert Johnson [Defendant] as the person that you spoke to a s coming down the st

eps [of your s

on’s apartment]; is

that correct?-14-

Hampton: Yes, sir.

Roderick’s Counsel: I would like for you to look at the photograph tha t y ou have before you. And I’d like to ask y ou if you were mistaken and, indeed, the person that you saw coming down the steps was that individualor you still feel that looking at that photograph, and looking at Mr. Robert Johnson, that is

Mr. Johnson or is that --
Hampton: It’s Mr. Johnson.
Roderick’s Counsel: Thank you.

Cle arl y, the brief testimony of Hampton did littl e more than reaffirm her identification of Defendant

as the man who emerged from the victim’s apartment immediately prior to the discovery of her son’s bloody body on the floor therein. Eve n if the trial court’s decis ion to allow the testimonywas error, it would not requiredismissal of the charges against Defendant and, therefore waiver is approp

riate. Tenn. R. Ap

p. P. 3(e); see Keel , 882 S.W.2d at 416.
Further, the trial court did not abuse its discretion in this matter. The rule do es not forbid testimony of a

witness called at

the rebuttal stag

e if, in the court’s discretion, counselis genuinely surprisedby the need for the unsequestered witness’s testimony and demonstrat e s such need. According to the record, the photograph was initia lly admitted into evidence during Defendant’s testimonyin his case-in-chief earl ier that same day. Therefore, a finding of surprise is c onsistent withthe facts, and need was established when Defendant suggested that Roderick Johnson committed the murder with his friend, Baso Felder, instead of himself. Defe

ndant is not entitled to relief on this issue.

IV. The Prosecut

or’s Closing Argum

ent

Defendant

next complains that th

e trial court erred by allowing the prosecutor to make improper and prejudicial remarks during its closing argument. Specifically, Defenda nt claims that the prosecutor’s comments suggested to the jury that they must convict Defendant to prevent the “system” from failing the victim one more time. Defendant contends that the prosecutor’s remarks interjected

extraneous and illegitimate considerations into the jury’s decision-making and the trial court should have interceded, notwithstanding the failure of Defendant to object.

In this case, the comment in i ssue a ppeared in the following context during the State’s closing argum

ent:

We know through the testimony of one of the def

endants that [the vic

tim] did drugs. And I guess one

could say, well, maybe he

ought to kn ow since he s aid, “I used dr ugs with him.” And he may have used drugs, ladies and gentleme n. We don’t know. And quite frankly

, it shouldn’t m

atter . Now you know, I say that and you kind of lo ok at me and probably

think, well, what do

you mean, it s

houldn’t matt

er. O f-15-

course it matters if people

use drugs, but it shouldn’t mat ter in this particu lar case whether or not you

look at [the victim’s] death differently. And I would ask y ou not to look at his death diffe r ently than if it said he worked s

even year s at the same restaurant,

but I don’t believe

he ever used drugs a day in his life. I f anyone here, at the conclusion of this c

ase believes tha

t somehow or anothe

r Willi am Bi nkl ey got what he deserved on O

ctober 24th, 1997,

then, certa

inl y, this system has failed William Binkley one more time.

To pre serve this is sue for appeal, Defendant should have objected to the prosecutor’s remarks at trial. Because he failed to do so, this issue may be waived under Rule 36(a) of Tennessee’s Rules of Appellate Procedure. Nevertheless, we shall address Defendant’s conten tion that t he jury was unduly influenced by the State’s “extremely powerful” and “blatantly improper” argument.

In general, closing argument is subjec t to the trial court’s

discretion. Counse

l for both prosecution and defense

are general

ly permitted

wide latitude in ar

guing their

cases to the jury. State
v. Bigbee , 885 S.W.2d 797, 809 (Tenn. 1994). Argument must be temperate, predicated on evidence introducedduring the trial, relevant to the issues being tried, and not otherwise improper under the facts or law. State v. Keen , 926 S.W.2d 727, 736 (Tenn. 1994). The prosecutor must refrain from argument des igne d to inf lam e th e ju ry and sho uld res tri ct i ts c omm ent ary t o ma tte rs p rop erl y i n evidence at trial. Coker v. State , 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995).

The State argues that the prosecutor’s comment was intended mer

ely to defus

e any possib

le prejudice that the jurors might have against the victim based on his drug use. After a careful reading of the prosecutor’s closing argument, we agree that this is a reasonable interpretation and find that the prosecutor’s statement did not exceed the proper bounds of argument when it submitted to the jury that it should not bas

e its verdict on a finding that the victim “got what he deserve

d” because of his drug usage. There was proof that the police department failed to properly respond to the 911 calls. We see nothin

g improp er in the manner w ith which the prose

cutor linked these

facts. Therefore, notwithstanding waiver, Defendant is not entitled to relief on this issue.
V. Jury Instruction Concerning Length of Sentence

Defendant also argu es that the trial court erred by refusing Defe ndant’s request to instruct the jury rega

rding the minimum ma

ndatory len

gth of a sente

nce for life imprisonment at the guilt/ innocen ce phase of his trial. Defendant concedes that his request is prohibited by the rec ent amendment

to Tennessee Code Annotated section 40-35-201(b), effective July 1, 2000, but argues that the current ver

sion of the statute

is unconstitutional and, therefore, the trial court erred by rely ing upon it in refusing

Defendant’s re

quest.

We are u n able to locate De fendant’s reque

st for this jury

instruction in the r

ecord. In its brief, the State admits to a similar inability

to locate the req

uest. It is the duty of th

e defendant to include accurate and a

ppropriate ref

erences to the r

ecord when submit

ting issues for a

ppellate review. SeeTenn. R. App. P. 27(g ). Fail ure t o include appropriate references to the record may-16-

result in waiver of such issues. See State v. Killebrew , 760 S.W.2d 228, 230-31 (Tenn. Crim. App. 1988). Notwithstanding the omission, we shall briefly address Defendant’s issue.

Th e statute controllin

g jury instr

uctions in matters o

f sentencing su

ch as this is T

ennesse e Code Annotated section 40-35-201. On May 1, 1998, Tennesse

e’s General Ass

embly passed Public Chapter No. 1041, an amendment to then-existing Tennessee Code Annotated section 40-35-201, which delet ed subsecti on (b) in it s entirety and s ubstitut ed the foll owing:

In all contested criminal cases, except for capital crimes which are governed by the procedures containedin [Tennessee Code Annotated] §§ 39-13-204 and 39-13-205, and as necessary

to comply with

the Constitution of Tennessee, article VI, section 14, [Tennessee Code Annotated] § 40-35-301, the judge shall not instruct the jury, nor shall the attorneys be permitted to comment at any time to the jury, on possible penalties for the offense charged nor all lesser included offenses.

Tenn. Code Ann. § 40-35-201 (Supp. 2000) (emphasis added). By contrast, the statutory provision in effect prior to

Defendant’s trial allowed the jury to “weigh and consider the meaning of a sentence of imprisonment for the offense ch arged,” which included “an approximate calculation of the minimum number of years a person sentenced to imprisonment . .

. must serve before reaching such person’s earliest relea

se eligibility

date.” See

Tenn. Code Ann. § 40-35-201(b) (1997) (amended by Acts 1998, ch. 1041, § 2; applies to all trials occurring after May 18, 1998).
App aren tly, Defendant’s re quest would

have been prope

r under the old

statute section. He argues that the new statute denies him due process of law, and cites State v. King , 973 S.W.2d 586 (Tenn. 1998) to support this argument. In King , our supreme cou rt heldthe statute in effect prior to the 1998 amendme

nt passed constitut

ional muster. Spec

ifically, th

e supreme court s

tated:

As a matter of

policy, the legislature has decided that the sentencing

information is relevant because jurors are better off having concrete infor ma tion on these issues rather than be ing lef

t to speculate on their own. The rationale for permitting an instruction on the range of punishment, even though the jury does not impose the sentence, is that in reality, “jurors will consider punishment anywa y and without direction may speculate to the possible detriment of a defendant. If nothing else, the instruction impresses upon the jurors the consequences of a guilty verdict.”

Id. at 592 (quoting David Raybin, Criminal Practice and Procedure § 30.73 (1985)).

Of course the supreme court’s reasoning in King is persuasive. However, this statute is no longer controlling on thi

s issue. Moreover

, the supreme cou

rt’s conclusion th

at the repealed

statute p assedconstitutional muster does not establish that the current statute fails to do so. The re cor d reflects that, at the conclusion of the guilt/innocence phase of Defendant ’s trial , the trial judge instructed the jur

y that a guilty verdict would require them to determine the sentence at a separate hearing and not

to consider punishment for the offense at that time. Later, at the s entencing he aring,-17-

the trial j udge instructed the jury that a sentence of lif

e without the possibi

lity of paro

le requires a defendant to serve a minimum of f

ifty-one ( 51) calendar y

ears before he

is eligible for release. Th

ese i nstructions comply with the current applicable statutory ma ndates for first degree murder

. Se e Tenn. Code Ann. §§ 39-13- 204, 40-35-501(h

)-(i) (Su pp. 2000) (section 40-35-501(i)(1) specifies
a min imum incarceration of 51 years for first degre e murder (85 percent of 60 years)). Sinc e Defendant’s brief contains no facts or legal

authority to

su p port his challenge to the statute’s
co nstitutio nal ity, and he has failed to show that he at least requested the jury instruction, we are unpersuaded that the trial court erred. Defendant is not entitled to relief on this issue.

VI. Law Enforcement

’s Investigation of De

fendant’s Case

Defendant

contends that the police officers and the district attorney’s office failed to conduct
a reasonable investigation of his case and that, but for this failure, he would not have been convicted. Spe cif ica lly, Defendant asse rts that the authorities in charge of investigating Binkley’s murder failed to discover importa

nt evidence, fa

il ed to proper ly test evide nce they did

discover, and fa

iled to conduct themselves properly during witness identification procedures.

It is not the duty of this Court to pass judgment regarding the investigative technique s used by law enforcement

unless they violate specific statutory or constitutional ma

ndates. Appeals t

o this Courtare based on allegations of errors committed by the trial court, the prosecutor’s office, or the assistance of defense coun sel, where such e

rrors prevente

d a fair trial or a

ffected the su

bst antial rights of the accused which resulted in the accused’s conviction. SeeTenn. R. App. P . 3 (b), 13; Tenn. R. Crim. P 37(b).

Defendant

appears to be chagrined by t he fact that alternate suspects were not discovered during the police investigation of Binkley’s killing. He argue s that the police and th

e district attorney have a duty

to reasonably

and properly

investigate

a case, including all re

asonable suspec

ts. However, Defendant’s brief cites nothing in the record which provides proof that the police failed to discover any

evidence (exce

pt a screwdrive

r which was subse

quently foun

d wedged under

neath
a coffee table), or that they blundered any testing procedures, or tha t t hey negle

cted to investiga

te any reasonable suspect. Moreover, the only citation Defendant provides in support of his argument is People v. Williams , 588 N.E.2d 983, 1016 (Ill. 19 91 ) (no abuse of discretion on the part of the State’s attorney w

here the exculpat

ory informa

tion allegedly

ignored by

the St ate was apparently known to even the media

prior to defenda

nt’s trial, y

et witness testimony indicated that it was never considered

worthy of pursuit, even

by the defense), which is not controlling authority in

this Court.
Nevertheless, we reviewed each of Defendant’s assignments of police bias and negligence and find nothing of merit or that amounted to mor

e than exercises o

f discretionary

judgment, typical of those which the police must perform every day. Here, Defendant was convicted for f irst degree murder based on the evidence

presented at trial. We have determine d this evidence is s

ufficient to sustain a guilty ve

rdict. We further

notethat, because the record reveals that Defendant’s allegations of police negligence were presented to the jury through the testimony of

various witnesses, we may
assume the jury con

sidered the possib

ility of police misconduct

, but discounted the

theory whe

n it-18-

co nvicted Defendant. In sum, since Defendant has presented no evidence of errors whi ch woul d have affected

the result of his trial on the merits, and the record contains no proof that Defendant’s substantial rights were affected, Defendant is not entitled to relief on this issue.
VII. Proof of Statutory Aggravating Circumstance

Defendant

argues that his s

entence of life

without the possibilit

y of parole must be reversed because the Stat e failed to prove that the murder involved “torture” or “serious physica l abuse” beyond a reasonable doubt, proof of which was a prerequisite to imposing Defendant’s sentence in this case. More specifically, Defendant contends that a finding of “torture ” or “serious physical abuse” beyo nd t hat nece ssa ry t o prod uce death must be analyzed separately under State v. Odom , 928 S.W.2d 18 (Tenn. 1996). Concerning “torture,” Defendant asserts that although Binkley was heard scre ami ng for his life at the beginning of the incident, the State failed to prove that he was conscious for the entire hour he was attacked. It follows that if Binkley was not fully conscious for the entire episode, he was also unable to feel sufficient pain to constitute “torture” for purposes of applying aggravating fac

tor (i)(5). With regard to “serious physical abuse,” Defe ndant further contends tha t be caus e th e me dic al e xam ine r was una ble to c onc lud e th at a ny one of the wounds, standing alone, could have caused death, forty-one stabbings constituted the minimum necesssary to consummate

the killing and the attack did not involve serious abuse beyond tha t ne cess ary t o produce death. The State asserts that the record reveals otherwise. We agree with the State.
According to the record, on February 20, 1998, the State filed timely notice that it intended to ask for a sentence of imprisonment for life without possibility of parole in the event Defendant
was convicted of first degree murder. See Tenn. Code Ann. § 39-13-208 (1997). A sentence of life withoutthe possibility of parole can be imposed only upon a unanimous finding by the jury that the Statehas proven beyond a reasonable doubt the existence of one or more of the statutory aggravating circumstances enumerated in the first degree murder sentencing statute. See Tenn. Code Ann. § 39- 13-204(i)(1997 ). In the case sub judice , the State relied upon the ev

idence presente

d during the gui

lt phase of trial to prove that the murder involved torture o

r serious phy

sical abuse suff

icient to apply aggravating

circumstance (

i)(5), i.e., that

“[t]he murder was e

specially heinous, atrocious, or cruel in that it involved torture or serious physical abuse bey ond that necessary to produce death.” Tenn. Code Ann. § 39-13-204(i)(5) (1997). Following a separate sentencing hearing, the jury determined that the State had prov

en the existence of

statu tory aggrav ating circumstance (i)(5) beyond a reasonable doubt and sentenced Defendant accordingly to life without the possibility of parole.

In State v. Odom , the supreme cou rt discussed the a

ggravating

circumstance us

ed in Defendant’s case and d e termined, among other things, that “torture” had been defined as “the infliction of severephysical or me ntal pain upon the victim while he or she remains alive and conscious.” Id. at 26 (citi ng State v. Williams , 690 S.W.2d 517, 529 (T enn. 1985). The c

ourt also found that when the leg

islature added th

e wor ds “or serious phy

sical abuse,” to t

he language

, it intended “serious physical abuse” to be distinct from “torture.” See id. The court determined that the word “serious” ref

erred to de gree of abuse ; that the abuse mus t be physica

l, as opposed to mental; and that “abuse”

is properly

defined as an “e

xcessive” act,

or one which makes “improper-19-

use of a thing,” or which uses a thing “in a manner contrary t

o the natural or legal rules for its use.” Id. (citing Black’s Law Dictionary 11 (6th ed. 1990)).

After considering the above definitions and the facts in this case, we concur with

the jury’s finding that such evidence w as proved bey

ond a reasonable

doubt. Numerous wi

tnesses at tria

l testified that they he

ard both the victim a

nd his attackers yelling and that the commotion lasted for approximately

one hour. The neighbors heard soun d s as though people and furniture were being thrown about the apartment, and one neighbor testified that the vi ctim “was al most thro wn through the wall, numerous times.” This evide nce is sufficient for a jury to find that infliction of severe physical or mental pain upon the victim occurred while

he was alive and c

onscious; in other w

ords, that Binkley was “tortured” be fore he died

. See State v. Blanton , 975 S.W.2d 269 (Tenn. 1998) (medical evidence that the victim may have remained alive for fifteen minutes during the attack or after receiving wounds was suffi cient to support a finding of “torture” for purposes of applying subsection (i)(5)). Add to th is the fact that the

victi m was stabb ed forty-one times, and “serious physical abuse” is likewise evident.

When a defendant appeals a sentence of imprisonmen t wi thout possibility

of parole, this Courtfirst considers any errors assigned and then review s the appropriateness of the sentence. Tenn. Code Ann. § 39-13-207(g ) (1 997). In rec ognition of the substantial discretio n afforded juror

s in determining which sentence t o impose, th

e statute governing ap

pellate review d

eclares that a sentence of life i n p rison without possibi lity of paro

le shall be conside

red appropriate

if the State provedbeyond a reasonable doubt at least one statut ory aggr avating circum

stance containe

d in section 39-13-204(i), and the sentence was not otherwise imposed arbitrari ly so as to constitute a gross abuse of the jury’s discretion. Id.
Here, the record reve

als that the trial c

ourt correctly

in s tructed the jury

as to the terms “heinous,” “atrocious,” and “cruel” as defined in State v. Williams , 690 S.W.2d 517, 52 9 (Tenn

. 1985). The trial judge also correctly instructed the jury that “torture” means “the infliction of severe physical or mental pain

upon the victim while he or she remains alive and conscious.” Id. at 529. For the reasons above, the evidence is sufficient to support a finding that the statutory circumstance in section 39-13-204(i)(5) existed beyond a reasonable doubt. See Blanton , 975 S.W.2d at 281 (the torture prong of (i)(5) merely requi res a jury finding that the victim remained conscious and sustained severe physical or mental pain and suffering between the infliction of the wounds and the time of death). Since the jury was given the proper instructions and we do not find a gross abu

se of discretion on their par

t, we also find Defendant’s sentence is appropriate. Defendant is not entitled to relief on this issue.

VIII. Ineffective Assistance of Counsel

Last ly, Defendant contends that the representation of his counsel at tria

l was constitutiona

lly deficient. His allegation of reversible err

or is three-fold.

First, Defendant contends that trial counsel-20-

was ineffective for failing to videotape the parking lot fo r p urposes of demonstrating the dark conditions at the crime scene. He claims that this evidence wa

s critical to his ca

se for the purpose of casting doubt

on t he t est imo ny of the eyewi tne sse s wh o pl aced him at t he cr ime scen e. S econ dly, Defendant

claims that trial counsel was ineffect i ve for failing to individually voir dire the jurors because this was crucial to eliminating jurors who harbored racial prejudices. (The v ictim in Defendant’s case was Cau casi an. ) Las tly, Defendant argues that trial counsel was ineffective for failing to a deq uat ely cross-examine the victim’s mother, Hampton, concerning inconsistencies in her tes tim ony. Defendant claims that Hampton’s failure to mention at the preliminary hearing that she
saw Defendant at Va

nderbilt Hospital, in light of her testimony regarding this observation at trial, revealed an inconsistency which demanded exploration in the presence of the jury at trial.

In State v. Burns our supreme cour t held that a claim o

f ineffective a

ss istance of counsel raisedon direct appeal is a mixed question of law and fact and, thus, is subject to a de novo review. Statev. Burns , 6 S.W.3d 453, 461 (Tenn.1999); Fields v. State , 40 S.W.3d 450 (Tenn. 2001). The de novo review of a trialcourt’s factual findings by an appellate court are entitled to a pr esumption of correctness , which is overcom e only when the preponderance of the evidence is contra ry to the trial court’s findings of fact. Fields , 40 S.W.3d at 458; Henley v. Sta te , 960 S.W.2d 572, 578 (Tenn. 19 97). By contra

st, when reviewin

g the trial cour

t’s application of

law to its factual f

indings “to determine whether counsel’s performance was deficient or whether the defenda nt was prejudiced by that deficiency, appellate courts conduct a p urel y de novo review, according to the trial court’s conclusions of law no deference or presumption of correctness.” Fields , 40 S.W.3d at 458.

A defendant alleging ineffective assistance of counsel must pro ve the all egations of fact underlying

his claim by

clear and convincing evidence. See Tenn. Code Ann. § 40-30-210(f) (1997); Fields , 40 S.W.3d at 458. This standard of proof is required regar dless of whether a petitio ner is bringing the claim in a direct appeal or a post-conviction petition. See Burns , 6 S.W.3d at 461 n.5.

To determine whether

counsel provided effective assistance, this Court must decide whether counsel’s performance was within the range of competence demanded of attorneys i

n criminal cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim that his counsel was ineffective, a defendant

bears the burden of proving two elements. First, he must prove his counsel made errors so seriou

s t hat he was not functio ning as counsel a

s guaranteed b

y the Sixth Amendment. Strickland v. Washington , 466 U.S. 668, 687 (1 984); C oop er v. State , 849 S.W.2d 744, 747 (Tenn. 1993). This element is proved by showing that counsel’s representa tion fell below
an objective standard of reasonableness. Strickland , 466 U.S. at 688. Second, the defe ndant must prove that he was preju

diced by his

counsel’s unprof

essional errors , such that there is a reasonable probability

that, but for counsel’s errors, the result of the proceeding would have been differe nt. Id. at 694; Butler v. State , 789 S.W.2d 898, 901 (Tenn. 199 0). Defendan t’s failure to prove either element, deficient performance or prejudice, requires dismissal of his claim. See Strickland , 466 U.S. at 697.

When reviewing a defense attorney’s ac tions, this Court may notuse “20-20” hinds ight to second-guess

counsel’s decisions regarding trial strategy and tactics. Hellard v. State , 629 S.W.2d-21-

4, 9 (Tenn. 1982). Counsel’s alleged errors should be judged at the time they were made in light of all the facts and circumstances. Strickland , 466 U.S. at 690; Cooper , 849 S.W.2d at 746.

The record reveals that Defendant received assistance of counsel from thre e attorneys during his trial and, because this issue was raised in his motionfor new trial, the trial court heard testimony from all of them at the he

aring on his mo

tion. Regarding Defendant’s first issue, concerning the video tape, the attorney responsible for acquiring this particular evidence testified that she assigned the job to an inves tiga tor frequently used by the attorney s in their office. However, after the investi gato r

videotaped the crime scene and viewed the video tape, he reported that the videotape showedmuch more lighting than they had anticipated. In other words, the level of darkness shown
on videotape was not probative of conditions suff icie ntly poor to prove that an identification of Defendant

would be difficult. Although the attorney admitted that she did not view the tape pers ona lly, she testified that she had no reason to doubt theinvestigator’s judgment. The decision to f orgo use of t he t ape w as s ole ly a m att er of str ate gy. Regarding Defendant’s second issue, concerning the failure of trial counsel to individually voir dire the jurors, the record reflects that the trial court did not rule on a motion for individu al voir dire because Defendant’s counsel mo ved to stri ke the moti on during a pre-trial hearing on October 30, 1998. Before moving to the next issue, however

, the trial court a

ssured counsel tha

t if there was
an issue which required separate questioning, the court would ask the other jurors to step out for the time necessary to resolve the issue. The record is sile nt regarding

further discussio

n of this specific matter.

Defenda

nt’s last issue alleges that trial counsel was ineffective for failing to adequat ely cross

examine Hampton regar

ding inconsistenc

ies in her testimony

at trial. Defend

ant claims that bec

ause Hampton testified that she saw him at Vanderbilt, but later failed t

o mention her obser

vation to the police, her veracity

as a witness was hi

ghly suspe

ct and thiscircumstance was crucial to his def ense since she was on e of two eyewitnesses. That may be so, but the rec

ord shows that coun

sel did question Hampton concern ing this particula

r inconsistency

. Specifically

, during Defen

dant’s crossexamination of Hampton, defense counsel pointed out that in t he report of her conversa tion with Detective West, “there’s no mention

. . . of anything regarding any body at Vanderbilt Hospital who you believed to be the individual involved in this case.” Hampton replied that she thought she had told the detective about her observation of Defendant and, when counsel demanded an explanation for the omission, she respondedthat she had none. A few minutes later, Defendant’s counsel asked her again whether she mentioned to the police that she had seen Defendant at Va

nderbilt Hospital, and she replied, “No.”

After a review of the facts and circumstances surrounding the legal repr esentation of Defendant,

we cannot find

the performance of any of Defendan t’s attorn eys was not wit hin the range of competence demanded of counsel in criminal cases. See Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 19 75). Defendant is required to show that counsels’ representation fell below an objective standardof reasonablen

ess, but he has fa

iled. The atto

r ney in charge of securing evide nce of the darkened conditions surrounding the crime scene testified that she did so, but the evidence was not
as probative as they had hoped it would be. Defendant’s brief cited no proof in the record which-22-

would indicate the vide

otape was not made

or that it was probative of poor lightingconditions; he merely complains that he was not given an opportunity to view it. Counsel testified that Defendant
never asked to see it. De fendant’s next alle

gation concer

ning individual vo

ir dire is sim

ilarl y unsupported by proof; his argument concerning this issue consists of one paragraph which contains
no citation to aut hor ity or references to the record. Since the rec ord does not provide any information concerning the racial breakdown of the jury , or any other facts indicating possible bias
or partiality, Defendant has failed to show any reason why

individual voir

dire would be warranted. Last ly, Defendant’s argument regarding Hampton’s inconsistencies fails for the reasons discussed supra

. Thus, Defendant

failed to prove th

at any attor

ney on his defense team made

errors so serious that t hey we re not functioning as counsel as guaranteed by the Sixth Amendment. Strickland v. Washington , 466 U.S. 668, 687 (1 984); Cooper v. State , 849 S.W.2d 744, 747 (Tenn. 1993).

We note that Defendant also failed to prove that he wa s pr ejudiced by his counsels’ unprofessional errors, such that there is a reasonable probability that, b ut for coun sel’s errors, the result of the proceedin

g would have been different. Strickland , 466 U.S. at 694; Butler v. State , 789 S.W.2d 898, 900 (Tenn. 1990). In his brief, the portion of Defendant’s argument claiming prejudice states only that

the eyewitness identifications were pivotal pieces of evidence and the video tape was the key to discrediting them. As a matter of fact, the record reveals that the jury he ard a number of statements

by various witnesses attesting to the dark conditions that night. Indee d, the three persons withHampton near the stairs testified that they were unable to identify Binkley’s

assailants due to poor l ig hting conditions. Hence, the fact that the night did not provide optimum conditions for identificati

on was presen ted to the jury, and Defendant was not prejudiced by the absence of a videotape to affirm a fact already in evidence.

In sum, Defendant has f

ailed to prove either element, deficient performance or prejudice, by clear and convincing evidence. See Strickland , 466 U.S. at 697. Defendant is not entitled to relief on this issue.

CONCLUSION
Based upon the f

oregoing, we

AFFIRM the ju

dgment of the tri

al court.

____________________________________ THOMAS T. WOODALL, JUDGE