### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON June 13, 2001 Session STATE OF TENNESSEE v. MARQUIS DAY
Appeal from the Circuit Court for Madison County No. 97-755 Franklin Murchison, Circuit Court Judge

No. W2000-01618-CCA-R3-CD - Filed November 9, 2001

The defendant appe

als his convictions

for first degr

ee murder, cons

piracy to c

ommi t firs t degree murder, tampering with or fabricating evidence and unlawful possession of a weapon. He challenges the sufficiency of the convicting evidence based on accomplice

testimony, the issue whether Brian Morrow was in fact an accomplice, the admission of graphic photographs of the decedent, and the actions of the tria

l judge as thirte

enth juror. We aff

irm the judgment o

f trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

C ORNEL IA A. C LARK , S P

. J., delivered the opinion of the court, in which J OE G. R ILEY and N ORMA M C G EE O GLE , JJ., joined.

Jan R. Patterson, Clayton F. Mayo, and Georg e Martin Googe, District Public Defender, Att orn eys for App ell ee, M arqu is D ay.
Paul G. Summers, Attorney General, Mark E. Davidson, Assistant Attorney General, J ames G

. (Je rry) Woodall, District Attorney G eneral, and Al Ea

rls, Assistant Distr

ict Attorney

General, attorneys for Appellee, State of Tennessee.

OPINION

Facts

On July 9, 1997, Milt

on Herron was sta

bbed and shot to dea

th i n the home occupied by Brenda DeBerry and her juvenile s

on, Montrell. The D

eBerrys , appellant Marqu is Day, then

also
a juvenile, and a third juvenile, Brian Morrow, were arrested and charge d with first degree murder, conspiracy

to commit first degree murder, fabr ication of evidence, and unlawful possession of a weap on. A juvenile transfer hearing for the appellant was conducted on July 30, 1997. B y order datedAugust 1, 1997, the app ellant was transferred to the Circuit Court of Madison County to be1 The name was spelled “Marro w” and “M orrow” in d ifferent parts of the transcript. This cour t has chosen to

use the spelling contained in the indictmen t.
-2- tried as an adult.

Co-defendant B

rian Morrow ente

red into a plea ag

reement in juveni

le court and agreed to testi

fy again st his three co-defendants at trial. Appellant’s trial began October 4, 1999.

BrianMorrow 1 was 16 years old at the time of the shooting in July 1997. He had known appellant Marquis Day and Montrell DeBerry for several years. Prior to this offense, he had never been in any criminal trouble.

Morrow testified that on th e evening of July

8 and the early morning

hours of July 9, 1997, he was at the residence of Brenda and Montrell DeBerry in Jackson, Madison Cou nty, Tennessee. The appellant wa

s also present.Morrow arrived around 9:00 p.m., and began watching television with the other thre

e individuals. While t

here, he listene

d to a conversationin w hic h th e DeB errys and the appellant discussed their intention to kill Milton Herron. Morrow understoodthat the plan to kill Herron was r

elated to a dispute

over a pis tol which theyhad previously taken from him. Morrow observed two pistols and a .12 gauge sawed-off

shotgun in the home. Although Morrow
was disconcerted by the conversation, he did not leave, because he believed thatthe three other individuals would follow him and perhaps harm him if he tried to leave.

While the conversation was being conducted, the telephone ra ng. M ontrell DeBerry answered the phone. Morrow

could hear him spe

aking to someone

who apparently

advised that he was on his way over to get the gun.

About fifteen minutes later Milton Herron arrived at the DeBerry residence and knocked on the door. Brenda DeBerry answer ed the door. Her son went to the kitchen. M s. DeBerry ask ed Herronto raise his shirt, and then she patted him down, apparently searching for a weapon. Herron entered the living room. Acc

ording to Morrow, Montrell DeBerry then came into the room carry ing
a hand pistol, and the appellant came in carrying a knife. The a ppellant stabbed the vi ctim in the back, and DeBerry shot him in the ches t five or six times. Herron spoke, asking why they wer e taking these actions. He remained standing for a couple of minutes, then began hollering and fi

nally felldown. The appellant then took a sawed-off shotgun and hit the victim in the head several times. At that point Brian Morrow left thehouse through the side door. As he stepped outside he heard a shotgun blast. Morrow walked toward the home of Calvin Albea. He encountered Kenneth McCallister, who was walking down the street. M cCalliste r inquired what was happening in the house. Morrow responded that he had not done anything, and then rode of f on a bicycle.

Morrow testified that shor tly thereafter he observed the appellant and the DeBerrys leave the house. Montrell DeBerry drove off in the blue pickup truck in which Mr. Herron had arrived. The appellant rode in the passenger seat of that vehicle. Brenda DeBerry followed in her own automobile. They

disappeared from sight. About ten minutes later Ms. DeBerry r eturnedin her car. Both her son and the appellant were passengers in the car with her. The three individuals instructed-3-

Morrow to get into

the car with them,

and he did. The fo

ur individuals drov

e to Wal-Mart, where t hey purchased cleaning supplies. They also purchased ne w curtains. They then we nt to anothe r store and purchased playing cards and a 12-pa ck of beer.

The four then returned to the DeBerry home. Morrow sat down in the living room. The other three individuals cleaned and shampooed t he carpets an d walls. Ms. DeBerry removed blood-stained curtains and replaced them with the new curtains she had bought. Ms. DeBerry then threw the old curtains in a dumpster. After the three c ompleted cleaning the house, they sat down and play ed cards. The DeBerrys and the appellant bega n talking about how they

had “done away

with” Milton Herron. The four individuals played cards until the sun came

up. Only the a

ppellant and Montr

ell DeBerry drank the beer.

Two days late

r Morrow was arrested and taken to the sheriff’s department, where he gave
a statement. During the time he was being held in the juvenile detention center he had at least one conversation with the appellant. Morrow testified at trial that

the appellant attempted to persuade him not to tell the truth

about his involveme

nt in the case. Mor

row acknowledg

ed that he eventu

ally reached a plea agreement in the case, and pled guilty only to the offense of

being an accessory

after the fact of murder.

On cross examination Morrow acknowledged that because of the plea agreement he reached he was treated as a juvenile rather than being transferred to adu lt court for trial. He received complete probation of the sentence he was given. He also acknowledged that he was aware of previous trouble that existed between Montrell DeBerry and Mr. Herro n, the vi ctim, based on DeBerry’s

theft of ten pounds of marijuana from Herr on. DeBerry appeared to be worrie d that Herronwould attempt to harmhim because of the theft. Morrow denied that he had assisted in the theft of the marijuana, but admitted he had smoked some of it.

Kenneth McCallister identified himself as a cousin of Brian Morrow. He testifiedthat on the night of July 9, 1997, he

was in the DeBerry

s’ neighborhood

when he observe

d Brian Morrow w

alk from the back side of the DeBerrys’ house and onto the drivew ay. The two spoke. McCallister then heard a gunshot come from inside the DeBerry residenc e. Morrow went on down the s tr eet. Mc Callis ter

soon observed the appellant, Montrell DeBerry, and DeB erry’s mother, leave the residence. The two men got into a dark pickup truck and drove away. Ms. DeB erry followed in a gold-colored car. Mr. McCallister did not observe when the individuals returned to the house.

McCallister

testified that he was returning from the Sonic when these events occurred. He denied that he had been drinking or taking any drug s that day. Deputy Donal d McIn tosh

of the Madison County Sheriff’s Department, testified that at about 3:39 a.m. on the morn

ing of July

9, 1997, while on patrol, he observed a dark pickup truck on the side of the road. He stopped to investigate, and observed the deceased body of a male, wrapp

ed in
a blue quilt, in the bed of the pickup truck. McInt osh immediat ely called for an ambulance and crime scene investiga

tors. He took some

photographs, and later assisted Sergeant Jeff Fitzgerald and-4-

Deputy Owen in taking other photographs. The deceased indi vidual was id

entified as the vic

tim, Milton Herron. Deputy

McIntosh stayed until the criminal investigators had completed their tasks and the victim was removed. He then left the scene. Deputy McIntosh testified

that he did not recall whether the truck was dusted for finge rprints. He also did not persona

lly engag e in a search for

footprints. He wa

s not certa

in whether other investigators conducted such a search. During Deputy McI

ntosh’s t estimon y, the state offered into evidence a number of photographs.The defense objec ted to th e admission of the pictures. The court sustained the objection as to several photographs, but allowed several others to be introduced into evidence.

Madison County Sheriff’s Department Sergeant Jeff Fitzgerald testified that in the early morning hour s of July 9, 1997, he receive d a request from L

ieutenant McI

ntosh to come to Christmasville

Road, where a dead man had been discovered in the bed of a pickup truck. A pocket knife was found on the p er son of the victim. Sergeant Fitzgerald confirmed that no attempt was made to take fing

erprint imprints fr

om the truck, beca

use it had been ra

ining that night. Sergeant Fitzgerald identified

a bullet that was recovered by Dr. Tony Emison fromthe body of the victim.

In the course of his investigation Sergeant Fitzgerald determined that the homicide had occurred at 203 Hickory Hil

ls. He went to that sce

ne to continue the i

nvestigation. Am

ong the items of evidence he recovered at the scene were curtains, bone fr agments f

ound on the driveway, and blood observed in the sa me general loc

ation as the bone f

ragments. Serg

eant F itzgerald al so identified photographs of mini -blinds , a window sill, wall and baseboard in

side the residenc

e, all containing blood. Sergean t Fitzgerald

also obse

rved a shampooing machine, which contained a liquid with a reddish tint. He noticed that the living room carpet appeared to be extremely wet. Sergeant Fitzgerald test

if ied that a butcher

knife, a kitchen k

nife, and a revo

lver were all fo und at the Hickory Hills home. The revolver was a silver Johnson .22 caliber r evolver. It wa s ultimately identified as having nothing to do with the case.

On cross examination Se

rgeant Fitzge

rald confirmed that his department had not made any attempt to lift fingerpr

ints from the pickup

truck. That t

ask was usually assigned to Investigator Mike Turner of the Jackson Pol ice Departmen t, who was better equipped to perform it. Officer Turner lifted partial fingerprints, but none were sufficient to send for

testing. No request was made to check for fingerprints inside the house. Sergeant Fitzgerald also acknowledged that none of the shirts taken from the appellant tested positive for the presence of blood. Greg Kesterson testified that in the early morning hours of July 9, 1997, he was r eturning home from vacation. While driving down Christmasville Road he observed a pickup truck on the roadshoulder. Just before observing the tru ck he observed a beige-colore

d car traveling

rapidly-5-

towardtown. He observe d the truck parke

d in a peculiar pos

ition, partially

extended into

the open road, and still running. At that time he was unable to determinehow many persons were in either the car or the truck.

Dalvin Albea testified th

at, on a day

he believed was j ust

after the murder, he engaged in a conversation with the appellant about a sawed-off shotgun the appellant had in his possession. The appellant asked Albea to take the

gun toMontrell DeBerry’s house. Albea complied and delivered the gun to th e DeBerry house. He was not certain whe ther this activity occurred before or after Herron ’s murd er. When Albea arrived at the DeBerry house no one was home, so he left the gun under the carpo

rt.
Samera Zavaro is th

e Memp his Crime Laboratory Supervisor of the Tennessee B ureau of Investigation. She is a n ex pert in s erol ogy. Zavaro testifi ed about the resu

lts of tests performed on
a number of items submitted to the crime laboratory in this case. She identified positive results for blood in the steam va

cuum wheels,

an air vent, and curtain pieces. Other items submitted did not test positive for the presence of blood.

Dr. O. C. Smith

is an expert in forensic pathology. He performed an autopsy on the remains of the victi m, Milton Herron. D r. Smith testified tha

t Mr. Herron died

from multiple injuri

e s , including five gunshot wounds, three in the back of

the left shoulder, one in the middle of the back, and one to the right

side of the head. There was also a shotgun wound on the left side of the victim’s abdomen. There were mult iple small stab woun

ds to the right

side of his face a

nd neck. Dr. Smith also observed a minimum of se ven blows to the right side of the victim’s head, which were of sufficient force to tear the scalp, crush the skull, and expel the brain. Dr. Smith testified that the victim was alive at

the time each gu

nshot wound, blunt tr

auma blow, and sho

tgun blast was inflicted upon his person. Bone

fragments wer

e missing from the

victim’s head . Dr. Smith identified two bone fragments recovered from the scene as being derivedfrom an African-American. He testified that the victim did not sust

ain any def

ensive wounds. Dr

. Smith was unab le to determine exa ctly how many different people were involved in the infliction of the injuries to th

e victim. Dr. Smith acknowledged

that he founda low blood alcohol content and remnants of marijuana in the victim’s body.

Calvin

Albea testified for the defense. He acknowledged that he was the brothe

r of Dalvin Albea who had testified earlier. At about 10:00 p.m. on t he night of J uly 8, 1997, he had just finis hed work and dropped in at the h ome of Teresa Gr

imes. He was stand

ing outside the ho

use talking to Ms. Grimes. He noticed a black Nissan belonging to Montrell DeBerry ’s father travel up and down the roadway several times. Later he saw a dark truck and Montrell DeBerry’s mother’s
car travel down the road. He could not tell who was inside the truck, but saw only one head. Albea denied seei ng Mr. Morrow or the appel lant that e vening. The jury convicted the defendant of first degre e murder, conspiracy to commit first degree murder, fabricating evidence, and unlawful possession of a weapon. A sentencing hearing was conducted

December 7, 1999. The appellant was sentenced to life imprisonment on theconviction-6-

for first degree murder. He received a sentence of twenty -four (24) years for

conspiracy

to commit first degree murder, a Class A felony. He received a sentence

of five (5) y

ears for tamper

ing with
or fabricating evidence, a Class C felony, and 1.5 y ears for possession of a

deadly weapon with intent to use it in the commis sion of a felony, a Class E felony. The se ntences were ordered to be run concurrent to one another.
ANALYSIS

A. Accomplice Te

stimony Appellant first contends tha

t the eviden ce is insufficien t to support his convi

ction for first degree murder. His primary assertion is that the conviction relies solely on the testimony of

Brian Morrow, whom the appellant claims is an accomplice.

When an accused challen ge s the sufficienc y of the convicting

evidence, the sta

ndard is whether, after reviewing 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. V irginia , 443 U.S. 307, 319, 99 S .Ct. 2781, 61 L.Ed.2d 560 (1979). Quest

ions concerning th

e credibility

of the witnesses, t

he weight and valu

e to be given the evidence, as well as all factual issues raised by the evidence, are resolved by the trier of fact, not this court. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor may this court reweigh or reevaluate the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). A verdict of guilty by the jury, approved by the trial judge, accre d its the testimony of the state’s witnesses and resolves all conflicts in the testimony in favor of the state. See State v. Cazes , 875 S.W. 2d 253, 259 (Tenn. 1994).

First degr ee murd er is defined, in part, as the “premeditated and intentional killing of another”. Tenn. Code Ann. §39-13-202(a)(1). An intentional killing occurs when it is the defendant’s “conscious objective or desire to engage in” the killing or to cause death. Id. §39-11- 302(a). A premeditated

killing occurs when “done after the exercise of reflection and judgment”. Id. §39-13-202(d). T

hat is, “the intent to kill must have been formed prior to the act itself”, although “it is not necessary that the purpose to kill pre-exist in the mind of the accused for any definite period of time”. Id. “The mental state of the accused a

t the time the accu

sed allegedly

decided to kill must be carefully considered in order to determine if the accused was sufficiently free from

excitement and passion as to be capable of premeditation”. Id. Because premeditation entails proof of a state of mindabout which there may be no direct evidence, “ cases hav e long recognized that the necessary elements of first degree murder may be shown by circumstantial evid ence ”. State v. Brown , 836 S.W.2d 530, 541 (Tenn. 1992). Premeditation is a question of fact to be determined by the jury. State v. Suttles , 30 S.W.3d 252, 261 (Tenn. 2000). And , the jury may infer premeditation from the manner and circumstances of the killing. See State v. Pike , 978 S.W.2d 904, 915 (Tenn. 1998); State v. Bland , 958 S.W.2d 651, 660 (Tenn. 1997); State v. Bordis , 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995). Our Supreme Court has enumerated several factors that may support the existence of premeditation an d deliberation, including: (1) declarations by the defe ndant of an i ntent to kill, (2) evidence of procurement of a-7-

weapon, (3) the use of a deadly weapon upon an unarme d victim, (4) the particular cruelty of the killing, (5) infliction of m ultiple wounds, (6) preparation before the killing for concealment of the crime, (7) destruction or secretion of evidence of the murder,and (8) calmness immediately after the killing. State v. Nichols , 24 S.W.3d 297, 302 (Tenn. 2000) (citations omitted).

In this case the appellant does not claim that no murder occurred; he

simply asserts that there is not sufficient proof about his culpability to sustain his conviction.

The testimony of Brian Morrow makes it clear that the three other individuals at the DeBerry home, including the appellant, intentionally and premeditatedly committed the murder of Milton Herron. Motivated by a dispute over a pistol they had previously taken f rom the victim, the appellant and the DeBerrys formulated and di scuss ed in advance their plan to murder him. They armedthemselves and then invitedthe victim over. When the victim arrived he was searched to be certain he was unarmed. Once they had confirmed the victim had no weapon, Montrell DeBerry began shooting him and the appellant first stabbedhim in the back, the n hit him in the head with a sawed-off sh otgun after he fell to the ground. DeBerry and the appellant then removed the body from the home, placed

it in the victim’s tru

ck, and moved the t

ruck toa distant location. When that task was completed the

y went to Wal-Mar

t, purchased cleaning supplies, returned to the DeBerry house, and methodically attempted to clean away all traces of the crime. They then calmly played cards and drank beer. Thi s evidence of premeditation an

d deliberation is mo

re than sufficie

nt to justify a conviction for first degree murder. However, appellant claims that Morrow

actually should have been deemed an accomplice, and therefore h is uncorroborate

d testimony is not suff

icient to support the conviction.

An accomplice is one who knowingly, voluntarily, and with common intent unites with the principal offender in the commission of the crime. State v. Anderson , 985 S.W.2d 9, 16 ( Tenn. Crim. App. 1998) (citing State v. Perkinson, 867 S.W.2d 1, 7 (Tenn. Crim. App. 1992)); Conner v. State, 531 S.W.2d 1 19 ( Tenn. Crim. App. 1975). When the facts are clear and undisputed concerning a witness’ partic ipation in the crime

, whether the witn

ess is an accompli

ce is a question of law for the court. When the facts ar e in dispute or susc

eptible to differ

ence inferenc

es, it is then a question of fact for

the jury’s determination. Id. at 123. Where a wit ness denies involvemen

t in the crime, the questio

n of whether he or

she is an accompli

ce is one of fact to be submitted to the jury with proper instructions from the court on how to consider such testimony. Anderson, 985 S.W.2d at 16.

A criminal defend

ant cannot be con

victed sole

ly on the uncorroborated testimony of an
accom plice. State v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994). Whether the testimony of a n accomplice has been sufficiently corroborated is a question for

the jury. State v. Heflin , 15 S.W.3d 519, 524 (Tenn. Crim. App. 1999). Corroborating evidence need notbe sufficient in a

nd of itself to support a convicti

on, but it must fairly

connect the def

endant with

the commission of the crime. State v. Gaylor , 862 S.W.2d 546, 552 (Tenn. Crim. App. 1992). Our courts have given us guidance in determining wh

ether sufficien

t corroborating

evidence is pres

ent:-8-

There must be some fact testified to, entirely independent of the accomplice’s tes tim ony, which, taken by itself, leads to the inference, not only that a crime has been
c ommitted, but also that the de fendant is implica

ted in it; and this i

ndependen t corroborativetestimony must also include some fact establishing the defendant’s ide nti ty. This corroborative evidence may be dire

ct or entirely

circumstantial, a

nd it neednot be adequate, in and of itself, to

support a conviction; it is sufficient to meet the requirements of

the rule if it

fairly and legitimately tends to conne ct the defendant withthe commission of the crime charged. It is not necessary that the corroboration extend to every part of the accomplice ’s evidence. The corroboration need not be conclusive, but it is sufficient if this evidence, of itself, tends to connect the defendant withthe commission of the offense, although the evidence is slight and entitled, when standing alone, to but little consideration. Bigbee , 885 S.W.2d at 803.

In this case the trial judge denied the appellant’s request that the jury be allowed to determine whether Morrow was an accomplice. He found there was no evidence to support such an instruction.

The test generally applied in determining whether a witness is an accomplice is whether the alleged accomplice coul

d be indicted for t

he same offense as the principal. See e.g. , State v. Green , 916 S .W.2d 827 (Ten n. Crim. App. 1995); State v. Lawson , 794 S.W.2d 363 (Tenn. Crim. App. 1990). “[I]n Tennessee, an accessory af ter the fact is not subject to indictment for the offense committed by his principal; but rather he is guilty of a se parate and distinct offense . . . Thus under the generally accepted test, an acce sso ry after the fact could not be considered as an accomplice within the rule r equiring that the testimony of an accomplice be corroborate d.” State v. Henning , 976 S.W.2d 661, 666 (Tenn. Crim. App. 1997) (citations omitted).

In this case, howeve

r, Morrow was ori

ginally ind

icted for first

degree murder along with the other three individuals . He gained his status as an a ccessory after the fact by virtue of a plea agreement

which required h

im to test

ify against his co-defendants. Morrow’s own testimony indicates he did not participate in the principal case, but the rec ord before this c

ourt does not indica

te what other evidence, if any, might have been introduced had he gone to trial. Additionally, in order for the state to preva

il on a charge o

f accessory

after the fact i

t mu st introduce evidence that the principal has been tried and convicted of the crime. Stat e v. Hodgkins on , 778 S.W.2d 54 (Tenn. Crim. App. 1989). At the time Morrow’s plea was entered, the principals had not been tried.

We believe aninstruction on accomplice testimony might have been appropriate in this case. However, we need not reach the question whether the trial c ourt had the duty to provide that instruction under the se facts because w e find that, if the f

ailure was erro

r, the error wa

s harmless. Even if Morrow was an accomplice, the record con tai ns s uff ici ent corr obo rat ion of h is t est imo ny. “Only slight circumstances are required to corroborate an accomplice’s testimony”. State v. Griffis , 964 S.W.2d 577, 589 (Tenn. Crim. App. 1997).-9-

Several wi tnesses provided c orroborative te

stimo ny. Kenneth McCallister saw Morrow leav e th e house and then heard a gunshot. He later saw the appellant and Montrell DeBerry leave the house in the victim’s truck, while Mrs. DeBerry followed in her car. The p olice ultimately found the victim’s truck sitting on the side of the road with the vict im’s body in t

he back, wrapped in a blanket. Another witness saw a car similar to Mrs. DeBerry’s speeding back toward Jackson from the location where the truck was found. Dalvin Albea testified that the appellant asked him to return a sawed-off shotgun back to the DeBerry residence. The forensic pathologist’s testimony about the wounds inflicted on the victim are consistent with Morrow’s testimony about the ir inflict ion. We conclude that suffi cient corro borating ev idence was presented at trial to support Morrow’s testimony and sustain the jury’s verdict, even if Morrow is deemed to have been a n accomplice.

This issue is without m

erit.

B. Photographs

The appellant next argues that the trial court erred b y allo wing into evidenc e certain photographs of the victim. He c ontends that the pho

tographs are to

o graphic and th

at th e ir prejudicial effect outweighs their probative value. We disagree.

The Tennessee Supreme Court has determined that the admiss ibility of phot

ographs is a matter within the discretion of

the trial court, and the trial court’s ruling concerning the admission into evidence of photographs “will not be overturned on appeal except upon a clear showing of abuse of discretion”. State v. Banks , 564 S.W.2d 947, 949 (Tenn. 1978). “To be admissible, photographs must be relevant to some issue at trial and their probative v

alue must outweigh their own prejudicial effect, if any”. State v. Gann , 733 S.W.2d 113, 115 (Tenn. Crim. App. 1987).

T he Te nnessee Rules of Evidence state that all relevant evidence is generally admissible. Tenn. R. Evid. 402. Relevant evidence is defined as “evidence having any tendency to make the existence of any fac

t that is of consequ

ence to the determination of the action more probable or less probable than it wou ld have been without t he evidence” . Tenn. R. E vid. 401. H owever, “alt hough relevant, evidence may be excluded if its probative va

lue is substantially outweighed by the dang er of unfa ir 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 note that the appe

llant has not speci

fically ide

ntif i ed in his brief which photographs introducedat trial are objectionable. However, in his motion for new trial andbrief he alludes to the photographs of the victim. The record contains a discussion about three specific photographs of the victim at the time they

were initially

offered into evi

dence. Defens

e counsel noted his objection on the back of photog ra phs ultimately admitted as Exhibits 4 -

6. We therefore h

ave considered

his arguments as they relate to Exhibits 4, 5, and 6.

Those photographs depict the victim as he was disc overed in the back of his truck. The photographs are probative of the nature and extent of the victim’s wounds. They depict

trauma to-10-

the head and body. They also ar e relevant to show the l ocation of the bod y at discove

ry, and to establish the nature of its

attempted conce

alment. While sever

al are graphic

in their display

of brain matter and blood, they

are very p robative as to the

brutality of the attack

and the extent of force used. The court excluded other, presumably more gruesome photos. Beca use of the strong probative value of the photographs

compared to their

prejudicial effect, we con clude that the tria

l court did not abuse its discretion by

admitting the phot

ographs at issue

into evidence. Th

is issue is without mer

it.
C. Motion for New Trial

The defendant final

ly contends t

hat the tr i al judge erred in weighing the evidence on the motion for n ew trial. Tenn. R. Crim. P. 33(f) prov

ides that the trial

court “may

grant a new tri

a l following a verdict of guil ty i f it disagrees with the jury about the weight of the evidence ”. Our Supreme Court has stated that

this rule “imposes upon a trial judge the mandatory duty to serve as the thirteenth juror in every criminal case, and that approval by the

trial judge of the jury’s verdict
as the thirteenth jur

or is a necessary prerequisite to imposition of a valid judgment.” State v. Carter , 896 S.W.2d 119, 122 (Tenn. 1995). Notwithstanding, this rule does not require an explicit statement
on the reco rd t hat the tri al c our t pe rfo rme d it s du ty. Id. Compliance with the rule is presumed when the trial court simply overrules a motion for new trial without comment; however, “where the record contains statements by the trial judge expressing dissatisfaction or disagreement with the weight of the evidence or the jury’s verdict, or statements indicating that the trial cour tabsolved itself of

its responsibility

to act as the thirteenth juror, an appellate court may reverse the trial

court’s judgment”. Id.
In the instance case, the trial judge ma de the following

comments at the conclusion of oral argument on the

motion for new tria

l:

. . . In summary, there was just an abundance of proof of the guilt. The guilt of the defendant in this case was ov

erwhelming. The

jury didn’t ta

ke too long to dec

ide it. They convicted him on everything. I think I ’ll letthe sentences run concurrently. But there’ s a lot o f evidence - overwhelming evidence - a strong case of the defendant’s guilt in this case.

. . . [T]he evidence here, as I said, being repetition, is very strong for degrees of judgment of the verdict of the jury. The motion for a new trial is ove rruled and denied. . . .

The trial judge stated that theevidence of guilt was overwhelming. He expressed no disagreement with the jury’s verdict. Because the trial court then denied the motion for a new trial, we pr

esume that it properly exercised its role as thirteenth juror. Appellant has offered nothing that convinces us that the presump

tion does not apply

in this case. This is sue is without merit.-11-

For the reasons

set forth above, w

e affirm the judg

ment of the trial c

ourt in all respec

ts.

____________________________________ CORNELIA A. CLARK, SPECIAL JUDGE