FILED

April 20, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

OCTOBER SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9705-CR-00164

)

Appellee, )

)

) HAMILTON COUNTY

VS. )

) HON. DOUGLAS A. MEYERS

PAUL WILLIAM WARE, ) JUDGE

)

Appellant. ) (Felony Murder, Rape of a Child)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF HAMILTON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

ARDENA J. GARTH JOHN KNOX WALKUP

District Public Defender Attorney General and Reporter

DONNA ROBINSON MILLER MICHAEL J. FAHEY, II

Assistant District Public Defender Assistant Attorney General

Suite 300 - 701 Cherry Street 425 Fifth Avenue North

Chattanooga, TN 37402 Nashville, TN 37243

WILLIAM H. COX

District Attorney General

600 Market Street, Suite 300

Courts Building

Chattanooga, TN 37402

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
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OPINION

The Defendant, Paul W are, was indicted in 1994 for felony murder and

multiple counts of rape of a child. The State filed notice of intent to seek the

death penalty. A Hamilton County jury found him guilty of felony murder and two

counts of child rape, and he was sentenced to life without parole for the felony

murder. At a subsequent sentencing hearing, the trial court imposed concurrent

twenty-five year sentences for the child rape convictions and ordered that the

twenty-five year sentences be served consecutively to the sentence of life without

the possibility of parole. The Defendant now appeals his convictions and

sentences pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure.

We affirm the judgment of the trial court.

The Defendant presents eight issues on appeal: (1) whether the evidence

presented at trial is sufficient to support his convictions; (2) whether the State

withheld exculpatory information from the Defendant, resulting in an unfair trial;

(3) whether the results of mitochondrial DNA analysis were properly admitted into

evidence; (4) whether the trial court erred by excluding evidence indicating that

State witness Paul Crum practiced Satanic worship; (5) whether the trial judge

demonstrated bias against the Defendant in the presence of the jury; (6) whether

there was sufficient accumulation of errors to mandate a new trial; (7) whether

consecutive sentences were properly imposed; and (8) whether the trial court

erred by failing to declare a mistrial or halt jury deliberations because of the

testimony of a newly discovered defense witness.
 1 Sylvia Kaye Dye, the victim’s mother, and Jimmy Green, the victim’s father, shared

custody of their daughter. During the week preceding the crime, the victim resided with her

father, but the victim was visiting her mother on the weekend that the crime occurred.

 2 The Defendant’s half-brother, David Ware, who shares with the Defendant a common

father, is also the half-brother of Sheila Sanders King, with whom he shares a common

mother. At trial, Sheila referred to the Defendant as her “stepbrother,” but, they are not

actually related by blood or marriage.

 3 Danny Gaddis testified that he and Dye departed for Ziggy’s around 7:30 p.m., while Dye

testified that they left at 8:30 p.m.

-3-

On the evening of Friday, September 30, 1994, four-year-old Lindsey

Green, the victim in this case, was staying with her mother, Sylvia Kaye Dye,1

 at

414 Stringer Street, the home of Sheila Sanders King. At the time, Dye was

temporarily living with Ms. King and King’s two young sons. Dye, who planned

to go out with her boyfriend for the evening, contacted the victim’s father, Jimmy

Green, at approximately 6:00 p.m. Green agreed to pick up the victim later in the

evening, and Dye arranged for Ms. King to watch the victim until Green arrived.

The Defendant, who shares family ties with Ms. King,2 arrived at 414

Stringer Street during the afternoon to help Carl Sanders, King’s father, repair a

screen door. Danny Gaddis, Dye’s boyfriend, also arrived at the home that

afternoon after work. After consuming some alcoholic beverages with the

Defendant, King, and Carl Sanders, Dye and Gaddis departed at approximately

8:00 p.m. for Ziggy’s, a local bar.3

While at Ziggy’s, Dye received a phone call from Ms. King, who told her

that the victim’s nose had begun to bleed. Ms. King explained that one of her

sons had accidentally bumped the victim’s nose while the children played. King

told Dye that the victim wanted her mother to come home, and Dye agreed to

return.
 4 Gaddis testified that he and Dye stopped by 414 Stringer Street at approximately 9:00

p.m., but he also acknowledged that in his initial statement to the police, he estimated the

time to be “about 10:30.” He explained, “I don’t wear a watch.” 

 5 King believed that Dye and Gaddis would return to her home sometime around 11:00

p.m. 

-4-

At approximately 10:30 p.m.,4 Dye and Gaddis left Ziggy’s to go to another

local bar. They walked back to 414 Stringer Street, saw the children playing

inside the house through the screen door, and departed in their car without being

noticed by the children. They then drove to another bar, where they stayed until

about 1:30 a.m., at which time they went to a local Waffle House for breakfast.

Somewhere in the vicinity of 2:30 a.m., Dye and Gaddis left the Waffle House

and drove directly to 414 Stringer Street. 

During the time that Dye and Gaddis were gone, Ms. King’s sister, Carla

Sanders, and her boyfriend, Paul Crum, arrived at 414 Stringer Street. Crum was

delivering some marijuana that King had given him money to buy. King asked

Crum to babysit the children while she went out, and he agreed to do so for ten

dollars and a pack of cigarettes. 

Ms. King departed on foot with her father Carl Sanders (who had remained

at her home throughout the afternoon and early evening) at approximately 10:45

p.m.5 They stopped by Ziggy’s, hoping to find Dye and Gaddis, and, not having

found them, stopped by a liquor store next door to Ziggy’s, then proceeded to the

Do Drop In Again, another local bar. While there, King encountered the

Defendant. He was having a drink at the bar and seemed “high” to King. Ms.

King invited him to spend the night at her house. The Defendant had stayed at

her home on a number of previous occasions and in fact had lived for a brief time
 6 Ms. King testified that the Defendant may have been living at her home only three weeks

before the night of the crime.

-5-

at 414 Stringer Street approximately one month prior to the date of the crime.6

However, Ms. King asked him to move out before Dye and the victim moved into

the home because, according to King, “usually when he was drinking he would

come to my house and break my window to my door. . . . [i]t was a little too

crowded for me.” King testified that when the Defendant stayed at her home, he

slept “in the floor or on the couch.”

Ron Anderson, a “[w]ork acquaintance” of the Defendant, saw the

Defendant sitting with King at the Do Drop In Again that evening. He testified that

he spoke with the Defendant a couple of times during the evening. According to

Anderson, during their second conversation, which occurred shortly before

Anderson left, the Defendant stated, “‘Don’t hurt my sister’ . . . in a way where if

a person was to say something wrong, it could lead to . . . maybe an argument

or something . . . .” Anderson stated that he “just took it as somebody being very

drunk and just saying something they didn’t realize what they’d said.” 

Anderson testified that he believed the Defendant left the bar around 2:15

a.m. Ms. King testified that she left the bar to drive to Alabama with some friends

shortly after 2:00 a.m. and stated that she was unsure whether the Defendant

was still at the bar when she left. King did not return to 414 Stringer Street until

6:30 or 7:00 a.m.

Paul Crum was therefore the only person who offered testimony about the

events at 414 Stringer Street immediately preceding the discovery of the victim ’s
 7 Crum testified that he could not remember whether the Defendant made one or two

phone calls.

-6-

body. Crum testified that he arrived with Carla Sanders at 414 Stringer Street at

9:30 or 10:00 p.m. He explained that he was looking for the Defendant so he

could deliver to the Defendant some marijuana that the Defendant had requested

earlier that day. He stated that King suggested that the Defendant was either at

Ziggy’s or the Do Drop In Again. Crum departed and went first to Ziggy’s. Crum

went next to the Do Drop In Again, where he located the Defendant. He testified

that he delivered the marijuana to the Defendant and then went back to 414

Stringer Street. 

After Crum arrived, Carl Sanders, Carla Sanders, and Ms. King left the

home, leaving Crum alone with the children to watch movies. Crum testified that

the victim and one of the boys fell asleep in the living room while watching the

movies. He further testified that the Defendant arrived at 414 Stringer Street at

approximately 1:30 or 2:00 a.m. Crum stated that he put the children to bed

when the Defendant arrived and that he placed the sleeping victim, who was

clothed and wrapped in a comforter, on one of the two twin beds in the bedroom

where she norm ally slept with her mother. 

Crum described the Defendant as “[d]runk . . . [w]obbling, slurring when he

was talking . . . [a]nd real sick, pale looking” when he arrived at the house. Crum

testified that upon arriving, the Defendant went into the kitchen, made a

sandwich, ate it, “threw up,” m ade a phone call, 7 and then went into the

bathroom. While the Defendant was in the bathroom, Crum sat back down and

began to watch a movie. Crum testified that when the Defendant emerged from
 8 Crum denied smoking marijuana inside the house.

-7-

the bathroom, the Defendant stretched and told Crum that he was going to go lie

down. The Defendant went into the same room where the victim was sleeping,

and Crum stated that he assumed he “went in there to pass out” on the other twin

bed, which was empty. While watching the movie, Crum heard “two little bumps,

but . . . really didn’t think nothing [sic] about it.” On cross-examination, he

admitted that the bumps could have been a car door shutting because he heard

the bumps shortly before Dye and Gaddis arrived. 

Approximately forty-five minutes to an hour later, according to Crum, Dye

and Gaddis arrived back at 414 Stringer Street. Dye testified that when they

arrived, Crum was acting as he normally did. He was “mellowed out, he was

calm, he was watching TV and smoking a joint.”8 Dye and Gaddis joined Crum

in the living room, where they all engaged in conversation. Approximately fifteen

to twenty minutes after arriving, according to Crum, Dye asked where the victim

was sleeping. Crum told her that the victim and the Defendant were sleeping in

the second bedroom. 

Dye went to the bedroom door and attempted to open it, but could not do

so because it was locked. She banged on the door, calling the Defendant, and

when she got no response, she went into the kitchen to retrieve a knife to try to

open the door, which she was unable to do. Crum stated that he went to help her

and was successful in unlocking the door with the knife. 
 9 A Federal Bureau of Investigations (FBI) agent testified that “urine could potentially be

present in [the] stained areas” of the sheet. The tests run by the FBI did not conclusively

determine that the stain was urine, and assuming the stain was urine, the testing done did

not match the stain with any particular person. 

Furthermore, the FBI tested the sheet for seminal fluid. Danny Gaddis, who

testified that he had engaged in sexual intercourse with Dye on the bed, was included as

a potential donor. The Defendant, however, was not mentioned as a potential donor for the

fluid. 

 10 The police collected the beige pants and the underwear four days after the crime. Both

Gaddis and Crum denied owning the underwear. Although Sheila Sanders King pointed out

the underwear to police as possibly belonging to the Defendant, King, who often washed

the Defendant’s clothes during the time that he lived at her home, stated that she had never

actually seen the underwear in the possession of the Defendant.

 11 At trial, David Ware, the Defendant’s half-brother, testified that it was common for the

Defendant to sleep nude after returning home inebriated at night.

-8-

Once inside the room, Dye and Crum noticed that neither the Defendant

nor the victim were in the beds. On the bed where the victim had slept, there was

what appeared to be a wet urine stain,9 and the bedclothes were in disarray. Dye

testified that Crum looked under the bedclothes for the victim, and when “[h]e

shook the covers . . . , [the victim’s] clothing . . . fell out into the floor . . . . [I]t was

her top and shorts and her panties was [sic] still in the shorts.” In addition, beige

men’s pants containing the Defendant’s wallet were later found between a twin

bed and the dresser, which sat between the two twin beds in Dye’s room, and a

pair of red men’s underwear, which apparently was not noticed initially, was later

found at the foot of the bed where the victim had slept. The owner of the

underwear was never identified.10

 

Dye walked across the room and opened the door to the utility room, which

was adjacent to the bedroom. On the floor of the utility room were the Defendant

and the victim. Both were nude.11 The Defendant was lying on his back, and the

victim was lying on her stomach a few inches away with her head closest to his

feet. According to Dye, the victim “was purple,” her “mouth was already blue,”
 12 Gaddis testified that the victim was “cold.”

 13 Carl Sanders testified that when he touched the victim, she “wasn’t cold, but she was

cool.”

-9-

and her body was cool or cold to the touch.12 Dye kicked the Defendant several

times, but he did not respond or move. 

Gaddis, upon hearing Dye’s reaction to the scene, rushed into the room

and scooped up the victim. He and Dye rushed out of the house with the child.

As they left, according to Gaddis, they saw Carl Sanders “come out of the middle

of nowhere” on the sidewalk leading to the house. Sanders grabbed the victim’s

arm and released it when Dye and Gaddis told him they were in a hurry.13 Dye

and Gaddis jumped into their car and sped the child to the emergency room of

a nearby hospital.

At the hospital, according to Dr. Susan Hayes, the emergency room doctor,

the victim was already “blue from lack of oxygen.” She had no pulse or heart

rate. She was intubated in an attempt to induce breathing. Dr. Hayes testified

that when she intubated the victim, the child was very limber, and there were no

signs of rigor mortis. After all attempts to resuscitate the victim failed, the victim

was pronounced dead at 3:24 a.m. 

Dye then requested that Dr. Hayes check the victim for signs of sexual

abuse. Dr. Hayes complied. She stated at trial, “[H]er vagina was torn, her

rectum was torn. It was the most horrible thing I’d ever seen.” The child was

also bruised on her labia, around her rectum, and on her upper thighs. Although

there was not a large amount of blood on the child, there were indicia of internal
-10-

bleeding. Dr. Hayes testified that the injuries to the child were consistent with the

results of a rape, and more specifically, penetration by an adult male’s penis.

However, Dr. Hayes also testified that she did not do a thorough examination of

the child because she feared she might disturb evidence and interfere with the

medical examiner’s job.

 

Crum testified that after Dye and Gaddis departed 414 Stringer Street with

the victim, he dialed Carla Sander’s number because it was the only number

which came to his mind at the time, and he then immediately ran to Carla’s house

and banged on the door, telling Carla to call 911 “because Paul Ware killed

Lindsay Green.” Crum testified that he next left in his car to find Dye, Gaddis,

and the victim because he believed that Dye and Gaddis had left the house on

foot. However, he soon realized that they had left in a car and decided instead

to return to 414 Stringer Street.

At the house, Crum found Carl Sanders and the Defendant, who was

“standing there in a daze, like he didn’t know what was going on.” According to

Crum, the Defendant was wearing a different pair of pants from those that he

wore when he had arrived at the house earlier in the evening. Crum also testified

that the Defendant had “a couple drops of blood on him . . . like somebody took

a pin or something and jabbed him once or twice around his face . . . .” Crum

soon went back outside to wait for the police to arrive. 

 Officer Choquette of the Chattanooga Police Department testified that he

and his partner, Officer Baker, were called to Stringer Street in the early morning

hours of October 1, 1994. He testified that he saw a white male, whom he later
 14 Officer Baker testified that Crum “seemed visibly disturbed” and that he “seemed to be

very agitated, nervous, almost scared.”

-11-

determined to be Paul Crum, standing on the corner of Stringer Street. He stated

that he asked Crum, who was “shaking uncontrollably,” 14 whether Crum had

called the police, to which Crum answered, “No.” Choquette further testified that

when he later asked Carla Sanders whether she had called 911, she also denied

having called. Choquette then departed. 

After searching the block for the correct house, Choquette arrived at 414

Stringer Street and again met Crum, who emerged from the home as the officers

arrived. At this point, according to Choquette, Crum, still “shaking

uncontrollably,” either asked whether “the baby was dead” or told the officers that

the child was dead. Baker stated that Crum initially told the officers that the

victim “had fallen and that she looked dead.” Crum also explained that the child

had been taken to the hospital. Crum told the officers that “he needed [them] to

go in and see if [they could] find [the Defendant].” According to Choquette, Crum

informed them that the Defendant “had run around to the back of the house and

was on his way to Whitwell.” 

The officers went into the home and found the Defendant in the laundry

room lying in a pile of clothes wearing what Choquette believed was either a pair

of jeans or possibly some sort of pants and no shirt. Choquette testified that after

waking him up, the officers handcuffed the “very drunk” Defendant, who “started

asking what was going on.” Upon being told that the officers were taking him to

the police station, the Defendant “just started going off cussing and stuff.”

Despite Crum’s testimony that the “officers found [the Defendant] hiding” in the
 15 Crum stated, “[H]e was just stiff as a board, wouldn’t move.”

 16 In testing done on the shirt by the F.B.I., a small amount of human blood was found in

some of the stains on the shirt. However, the F.B.I. was unable to develop a conclusive

profile of the donor of the blood either because “there was insufficient DNA present or it

was too degraded to make a determination as to who the potential source of that human

blood was.” 

-12-

laundry room and that the Defendant resisted arrest,15 Choquette maintained that

the Defendant did not resist arrest, but rather simply needed assistance to walk

out of the house because he was “staggering.” 

Officer Baker, who transported the Defendant to the police station, testified

that during the ride, the Defendant alternated between acting passively and

becoming angry and belligerent. He testified that at one point, while at the police

station, the Defendant “lunged forward at me out of the chair and I had to use

both hands to stop him . . . and kind of pushed him back down into the chair.”

Baker described the Defendant’s appearance as follows:

I recall he had on a, I believe it was a white shirt, a light colored

shirt, and there were two, there were, I don’t remember exactly how

many spots but there were some red spots on it that appeared to be

blood. 16. . .[H]e had on dark colored pants. Other than that, . . . he

was disheveled. He looked like he was intoxicated. 

At the police station, the Defendant submitted to blood alcohol level testing

at approximately 1:30 in the afternoon on October 1, 1994, and the tests

indicated that approximately ten and a half hours after the victim was transported

to the hospital, the Defendant had a blood alcohol level of .04 percent. Dr.

Cleland Blake, a medical expert at trial, estimated that this meant the Defendant

would have had a blood alcohol level of approximately .20 or .21 percent eleven
 17 Blake explained that his estimation was based on the average rate at which a person

metabolizes alcohol, but also emphasized that different people metabolize alcohol at

sometimes widely varying rates.

 18 The Defendant was characterized as having red or auburn hair.

-13-

hours earlier.17 Detective Michael Mathis of the Chattanooga Police Department

testified at trial that he spoke with the Defendant at the police station on the night

of the crime. According to Mathis, after being advised of his rights, the Defendant

stated, “I was drunk and I don’t remember anything.”

At trial, Dr. Frank King, the medical examiner, presented evidence

accumulated during the postmortem examination of the victim. He reported that

the cause of death was mechanical asphyxia, meaning that the victim was

“unable to breathe due to a mechanical interference in normal breathing.” In

addition to numerous other injuries which the medical examiner described and

explained in detail, the victim sustained a contusion on the small of her back

which was “consistent with that part of [her] body pressing against a broad or flat

surface.” King explained that “[t]he only way for this to happen is for that part of

the back to be up against something with some pressure applied.” 

Also significant to the issues in this case were certain hairs found on and

inside the child’s body. During the autopsy, Dr. King recovered a reddish hair18

which was stuck to the victim ’s lip, a dark brown body hair which was “partly

touching . . . the mucosa of the rectum and partly touching the skin of the anus,”

and a reddish pubic hair from the victim’s pharynx. With regard to the dark brown

hair, he testified, 

It would take direct contact and a little pressure applied to get that

hair to stick to the mucosal lining in the rectum. . . . Any handling of

the body, moving of the body from one place to another,
-14-

examination of the body by a person or persons could potentially be

sources of contamination to supply loose hair . . . .

Furthermore, Dr. King testified that the pubic hair found in the victim’s pharynx

was highly unusual. He explained that a “normal, breathing, living person would

. . . not [be expected] to tolerate a hair in this location” because any intrusion into

this area would trigger a cough reflex. 

Dr. King testified that rigor m ortis “tends to start showing up first in the area

of the jaw, in the area of the small muscles of the extrem ities.” With regard to the

victim, he stated, “[G]iven her size, her lack of clothing and temperature where

she was found, . . . I could estimate maybe she had been dead one to two hours

or less. I think that certainly after . . . two to four hours she . . . should certainly

have some rigor mortis developing in her jaw muscles,” which could be detected

by an em ergency room doctor. 

Dr. Cleland Blake, a defense witness who reviewed the data and evidence

collected in the case, reached a slightly different conclusion regarding the time

of death. He testified that the first change in the postmortem period is livor

mortis, or settling. He explained,

That means if a body is laying on its back, blood tends to settle

downward so that the back would be more purplish or pink,

depending on how long its [sic] been.

The longer the period of time, the more intense purple it gets

on the deep end or lower part of the body. If the body is stomach or

face down, then the purple or pink color would be on that side.

He further testified that

[t]he first time, the first period that livor [m ortis] would be noticeable

in a white skin would be something upwards of two hours, an hour

and a half to two hours, to see any degree of livor [mortis] for any
 19 The hypothetical posed to Dr. Blake was as follows: 

[T]he ambient air temperature was 72 degrees; there was carpet on

the floor, as well as dirty clothes, it was a laundry room; [the victim

was] presented at the hospital at 3:10; the child’s mother, the child’s

mother’s boyfriend, both handled the child, both of them described

her as cold; and she then presented at the hospital . . . after about

a seven- or eight-minute automobile ride. The entire time, the

mother testified that she was attempting CPR, cardiopulmonary

resuscitation.

However, the actual temperature of the room in which the victim was found was never

determined.

-15-

person. Nobody could appreciate it earlier than one hour. It may

take as long as two and a half hours to becom e apparent.

In addition, Blake testified that based on the circumstances of the case,19

he would estimate that the child had been dead for three hours to be perceived

as “cool.” He also stated that in order for her to be perceived as “cold,” she had

to have been dead for “[a]t least two hours,” but he emphasized that he was

being conservative in his opinion. 

Blake further testified that under the circum stances, 

[i]n a child, rigor [mortis] would not be apparent before two hours .

. . and if rigor [mortis] starts out, anything starts, has a starting point,

and it’s a matter of degree, it’s a matter of progression to the

maximum stiffness that that body and that temperature is capable

of achieving. . . . [A]ny movement of the child, any picking up of the

child, draping, twisting, handling, moving, transport will begin to

break that early rigor that has started, so it does not become

noticeable for a longer time. . . . So in transporting a child in a

situation like this, rigor [mortis] may not be apparent at all until after

three or more hours.

Finally, Blake testified that the victim “could very well have been deceased

at the time” she was injured, depending upon whether she was “mopped off or

cleaned up by the pathologist or the assistants.” He stated that he would have

expected to have seen more blood on her, even if she was deceased at the time

of the sexual assault.
 20 Officers who investigated the crime scene photographed a red, plastic soda bottle in the

bathroom sink which was essentially the same size and diameter as the penis of an adult

male.

-16-

Dr. King stated that he believed all injuries were inflicted on the victim

before her death, but agreed that since the injuries occurred before death, he

would have expected some bleeding consistent with the injuries. King testified

that had the victim died before the injuries occurred, there would have been less

bleeding. 

Dr. King also noted some petechial hemorrhages inside the victim’s mouth,

which he stated could be consistent with either asphyxia or low oxygen, or

“aggressive resuscitation, placement of endotracheal tube.” However, he

concluded, “[I]n this case, the petechial hemorrhages inside the upper inner gum

by themselves don’t prove anything. . . . It’s the overall pattern with the other

injuries present that make it mechanical asphyxia.” Having noted no evidence

of oral rape during his examination of the victim, he concluded, “I cannot say

there was oral penetration in this case.” Furthermore, no seminal fluid was found

in or on the child’s body. Dr. King stated that the injuries could have been

caused by the insertion of any blunt object20 and testified that he could not state

with certainty that an adult male penis penetrated the child, although he indicated

he believed that the child had been “brutally raped.”

Special Agent Chris Hopkins of the FBI Hair and Fibers Unit testified about

the hairs found at the crime scene and those found in and on the victim’s body.

He identified the hair which was found in the victim’s pharynx as a “red

Caucasian pubic hair” which had been “naturally shed.” He also discussed “at

least ten red Caucasian pubic hairs” which were taken from the sheet on the bed
-17-

where Crum testified he had placed the sleeping victim. Hopkins also described

these hairs as being “naturally shed.” He testified that pubic hairs are naturally

shed “just from putting on and off your underwear, taking [on and off] your

clothes, maybe in the shower, those kind of activities” and agreed that pubic hairs

may be naturally shed when one person rubs against another. The hairs on the

sheet were significant because, as Hopkins explained, 

[W]hen hair or fibers fall on a piece of evidence, they tend not to

stay there very long. . . . [I]f there is no activity in [a] bed, then you

would expect the hairs to stay there because there is no reason for

them to move around, but if someone is using that bed on a regular

basis, . . . you wouldn’t expect those hairs to stay there. 

He also stated, “I would not expect to find that many pubic hairs in [a] bed that

has just been slept in.” 

Hopkins concluded that all hairs, the hair from the victim’s pharynx and

those from the sheet, were “consistent with originating from the [D]efendant.”

However, he also testified that hair comparison is “not a means of personal

positive identification,” and therefore he could not state conclusively whether the

hairs belonged to the Defendant. He did state that Carl Sanders, Danny Gaddis,

and Paul Crum were each eliminated as being potential sources of the pubic

hairs. 

Hopkins also testified that the hair found on the victim’s lip was red in color

and was likely a chest hair. He stated that the hair removed from the victim’s

anus was a brown Caucasian body hair and therefore was “not suitable for

comparison.” He explained,

The only two regions, the only two types of hairs that are suitable for

comparison purposes are . . . head hairs and pubic hairs. . . . Hairs,

other hairs than head hairs and pubic hairs, these body area hairs
 21 No further testimony regarding this evidence was offered at trial.

 22 The attorney examining Taylor characterized it as being “dark red-brown” in color, but

Taylor simply stated that it “just appeared to be a stain.”

 23 At the time of the trial, Crum and Carla Sanders, his girlfriend, had two young children

who lived with their mother at Carl Sander’s home. Crum had also fathered a daughter with

another woman; the daughter lived with her mother. Crum was living out of his car and

staying periodically with friends and family.

-18-

or hairs on your arms or your legs, they tend to look like other

people’s hair, so there’s not a significant association that can be

made when comparing those hairs. 

Another perplexing bit of evidence was presented at trial by Special Agent

Keith Howland of the FBI. He testified that human blood was found on a bean

bag chair in the laundry room. Howland stated, 

I identified the human blood on [the chair] and had DNA profiles

developed, but at that time I could not draw a conclusion.

Subsequent to my transfer from the laboratory, additional samples

of known standards were sent in and I understand that some

comparisons were made to an individual named [Carl] Sanders, but

I did not perform those DNA tests.21

In addition, Mike Taylor, the officer who videotaped the crime scene in the

early morning hours of October 1, 1994, testified about a dark stain22 on the

bedspread in the master bedroom, which also appeared on the videotape of the

crime scene that was presented to the jury. This stain was never tested.

 

Other evidence presented at trial concerned Paul Crum’s background and

behavior near the time of the crime. Crum testified that as a child, he was

sexually, mentally, and physically abused by his father. He also stated that in

September of 1994, he told the Defendant, whom he had known as a friend, that

he “was wanting to receive [psychiatric] help because I didn’t ever want to have

the feeling or even think about [sexually abusing] my kids.” 23 He testified, “I just,
-19-

I told [the Defendant] that I was real scared that as I got older, the thoughts and

all that, you know, probably be, you know, wanting to do to my kids, and . . . . I

just didn’t want to have that feeling or thought.” He testified that shortly after this

crime, he sought psychiatric help and checked himself into a treatment facility,

where he stayed very briefly.

Wilma Jean Pack, from whom Crum had once rented a room, testified

about artwork done by Crum which Crum had given her eleven year old son. The

drawings contained images of skulls and skeletons. Pack also testified that Crum

once showed her son a picture in a magazine of Disney characters engaging in

sex. Crum admitted to having done so, but explained that he did not intend to

show the child that particular picture; he stated that the Disney picture appeared

at the bottom of a page in a tattoo magazine which he was showing the boy.

Crum also admitted to having smoked marijuana with the boy, but he claimed that

he did so only after the child’s parents had granted him perm ission to sm oke with

the child.

Finally, both David Ware, the Defendant’s half-brother, and his wife, Carol

Ware, testified that Crum had visited their home on October 1, 1994, the day

following the crime. David W are testified that Crum was “fidgety,” and Carol

Ware stated that Crum was “walking funny.” She stated, “He was very protective

of his private area. He was stiff legged.” Both David and Carol Ware testified

that Crum “had his hands in his pants adjusting himself quite often,” as though

he was experiencing som e irritation in his crotch area. 

 
-20-

I. SUFFICIENCY OF THE EVIDENCE

The Defendant first argues that the evidence is insufficient to support the

jury’s finding that he was guilty of felony murder and rape of a child. The

Defendant argues that the evidence presented at trial showed that “Paul Crum

. . . had far more of an opportunity to commit these crimes because it was

uncontroverted that he was with [the victim] from 10:45 p.m. until she was found

by her mother shortly before 3:00 a.m.” The Defendant points to specific

evidence introduced at trial to support his assertion, including, among other

evidence, the testimony by Dr. Cleland Blake regarding the time of death of the

victim, the failure of investigators to test the stain on the master bed, the failure

of investigators to examine Carl Sanders and Paul Crum for evidence

immediately after the crime, the lack of evidence on the Defendant’s body, the

brown hair found inside the victim’s rectum, and Crum’s admission that he feared

he would sexually abuse his own children. 

Tennessee Rule of Appellate Procedure 13(e) prescribes that “[findings]

of guilt in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to support the finding by the trier of fact beyond a

reasonable doubt.” Tenn. R. App. P. 13(e). “Questions concerning the credibility

of the witnesses, the weight and value 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) (citing

State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973)). Nor may this Court re-weigh

or re-evaluate the evidence in the record below. State v. Evans, 838 S.W.2d

185, 191 (Tenn. 1992) (citing State v. Cabbage, 571 S.W.2d 832, 836 (Tenn.

1978)).
-21-

A jury verdict approved by the trial judge accredits the State’s witnesses

and resolves all conflicts in favor of the State. Id. (citing State v. Williams, 657

S.W.2d 405, 410 (Tenn. 1983)). On appeal, the State is entitled to the strongest

legitimate view of the evidence and all inferences therefrom. State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982) (citing Cabbage, 571 S.W.2d at 835). Because

a verdict of guilt removes the presumption of innocence and replaces it with a

presumption of guilt, the accused has the burden in this Court of illustrating why

the evidence is insufficient to support the verdict returned by the trier of fact.

McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963); see also Evans, 838 S.W.2d

at 191 (citing Grace, 493 S.W .2d at 476); Tuggle, 639 S.W.2d at 914.

In the case at bar, a great deal of circumstantial evidence was introduced.

Despite some evidence suggesting that the Defendant may not have committed

the crime, there was clearly substantial evidence presented at trial indicating that

the Defendant did commit the crime: Most obvious is evidence presented that the

Defendant and the victim were discovered nude together in a room locked from

the inside. Additionally, although the two medical experts who testified at trial

differed in their estimations of the victim’s time of death, Dr. King concluded that

the victim had been dead “one to two hours or less,” a time period which

corresponds with the time that the Defendant was present in the home. Finally,

an FBI agent testified based on hair comparison that hair found on the bed sheet

where the victim slept and the hair inside the victim’s pharynx all “were consistent

with originating from the Defendant.”

 

This is but a small sampling of the evidence presented at trial which points

to the Defendant as the perpetrator. It is simply not within our purview to weigh
-22-

this evidence against other evidence favorable to the Defendant. We must

instead give great deference to the findings of the jury. Therefore, viewing the

evidence in light most favorable to the prosecution, we conclude that there was

sufficient evidence from which a reasonable person could have determined the

Defendant’s guilt, and we therefore affirm the conclusion of the jury. 

II. BRADY VIOLATION

The Defendant next contends that the State withheld from the defense

exculpatory information, which resulted in an unfair trial. He argues that the State

did not disclose before trial (1) “the color and description of [the] hair found in the

victim’s anus”; (2) the discovery of Carl Sanders’s blood on the Defendant’s pubic

hair; (3) a statement made by Paul Crum to Officer Baker that he had heard a cry

on the night of the murder; and (4) a statement made by Jimmy Green, the

victim’s father, to Assistant District Attorney Lee Davis that he had made phone

calls to 414 Stringer Street between 9:00 and 10:00 p.m. on the night of the

murder which were never answered.

In Brady v. Maryland, the United States Supreme Court established the

prosecution’s duty to furnish the accused with exculpatory evidence that is

material to either the accused’s guilt or innocence or to the potential punishment

which may be imposed. 373 U.S. 83 (1963). In order to establish a due process

violation under Brady v. Maryland, a defendant must demonstrate the following:

1. The defendant must have requested the information (unless the

evidence is obviously exculpatory, in which case the State is bound

to release the inform ation whether requested or not);

2. The State must have suppressed the information;

3. The information must have been favorable to the accused; and

4. The information must have been material.
-23-

State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995).

In order to establish that exculpatory evidence is “material,” a defendant

must show that “the favorable evidence could reasonably be taken to put the

whole case in such a different light as to undermine confidence in the verdict.”

Kyles v. Whitley, 514 U.S. 419, 435 (1995); see also Edgin, 902 S.W.2d at 390.

There must be a “‘reasonable probability that, had the evidence been disclosed

to the defense, the result of the proceeding would have been different.’” Edgin,

902 S.W.2d at 390 (quoting Kyles, 514 U.S. at 435). The Court in Kyles urged

that the cumulative effect of the suppressed evidence be considered to determine

materiality. 514 U.S. at 436.

The State is not required to disclose information that the accused already

possesses or is able to obtain, State v. Marshall, 845 S.W.2d 228, 233 (Tenn.

Crim. App. 1992), or information which is not possessed by or under the control

of the prosecution or another governmental agency. Id. Under Brady, the

individual prosecutor has a duty to learn of any favorable evidence known to

others acting on the government’s behalf in the case, including the police. Kyles,

514 U.S. at 437.

With regard to the hair found in the victim’s rectum, the Defendant argues

that 

the defense was never notified of any examination by the FBI of the

brown hair removed from the victim’s anus. Accordingly Defendant

Ware was precluded from submitting the hair along with a known

sample of Paul Crum’s hair which was already in the State’s

possession for a comparison by an independent laboratory. The

defense was also precluded from obtaining a hair expert of its own

for testimony in the instant trial . . . .
 24

 See discussion infra of issue regarding admissibility of DNA evidence.

 25 The evidence receipt is included in the record, but there is no indication on the receipt

as to precisely when it was turned over to the defense. 

-24-

At trial, but outside the hearing of the jury, defense counsel Hallie

McFadden stated, “This [hair] is something that’s listed in their inventories, but

we haven’t ever seen it. We haven’t seen a photograph of it. We don’t know

anything about this hair except that it was collected from the anal orifice.” The

State replied that the hair was in the possession of a hair analyst from the FBI

who was to be a witness in the trial, that the State had provided the defense with

results from all tests run by the Tennessee Bureau of Investigation and the FBI,

that this particular hair was not tested because it was deemed unsuitable for

comparison by the FBI, 24 and that the evidence receipt of Detective Mike Mathis,

which had been in the possession of defense counsel for approximately one year,

stated that a hair was collected from the victim’s anal orifice on October 1, 1994

during the autopsy of the victim.25

We cannot agree that there was a Brady violation in this instance. The

defense received information that a hair was recovered from the victim’s anal

area prior to trial. Not only was the hair listed “in . . . inventories,” as defense

counsel admitted, but the defense also received a copy of the test results from

the FBI which indicate that no testing was done on the hair. Moreover, despite

knowledge of the existence of the hair, the defense never made any pretrial

request to have the hair independently tested. W e conclude that the State

fulfilled its obligation by furnishing information about the hair to the defense 
-25-

before trial. Certainly, the State may not now be blamed for the failure of the

defense to request independent testing or explore the issue further before trial.

Furthermore, even assuming that a Brady violation occurred concerning

the hair, we are unconvinced that the hair constitutes exculpatory evidence. The

hair was deemed unsuitable for testing and as such, was never linked to any one

individual. Additionally, even if the hair had been matched to any one person, the

uncleanliness of the home where the victim’s body was found greatly reduces the

probative value of evidence that a hair was found inside the victim’s rectum.

Photographs and testimony presented at trial indicate that the house at 414

Stringer Street was unkempt and unclean. There were many items strewn about

the floors, dirty dishes throughout the house, and dirty clothes on the laundry

room floor. Because it is evident that the floors had not been recently vacuumed

at the time of the crime, it is quite conceivable that hair from a number of visitors

to the home was present on the floors of the home. It is also quite conceivable

that a hair from the floor of the home could have become embedded in the

victim’s orifice during the course of a brutal rape or even possibly during the

transport of her body after the crime. 

The Defendant also alleges three other Brady violations which we conclude

are unsupported by the record. He first argues that the State did not notify the

defense that the blood of Carl Sanders was found on the Defendant’s pubic hair.

The only evidence of this allegation in the record is an affidavit by David Ross,

Ph.D., filed on September 10, 1997, in which Ross states, 

On April 10, 1997, I was present at a lecture given by Assistant

Hamilton County District Attorney, Lee Davis, lead prosecutor in the

case against Paul William Ware, to my Psychology and Law class
-26-

from the University of Tennessee . . . . During the lecture Lee Davis

stated that a blood sam ple found on a pubic hair of Paul Ware

belonged to Carl Sanders, father of Sheila Sanders, in whose home

the homicide of Lindsey Green allegedly took place.

The Defendant also alleges that Paul Crum made a statement to Officer Baker

shortly after the crime that, while at 414 Stringer Street, he heard a cry on the

night that the victim was killed. However, in subsequent statements and

testimony, neither Crum nor Baker mentioned this fact. Finally, the Defendant

contends that District Attorney Davis had a conversation with Jimmy Green, the

victim’s father, in which Green stated that he may have made unanswered phone

calls to 414 Stringer Street on the night of the murder. However, this fact was

mentioned only briefly during the trial out of the hearing of the jury by Davis, who

stated that after further conversation with Green, Green concluded that he did not

feel “comfortable saying [under oath] that he remember[ed] when he made a

phone call or didn’t make a phone call.” Green was never called to testify.

We are unconvinced that the foregoing evidence is exculpatory; nor can

we conclude that this evidence is material. Therefore, this issue is without merit.

III. ADMISSIBILITY OF DNA EVIDENCE

In his third assignment of error, the Defendant argues that the trial court

improperly allowed testimony regarding m itochondrial deoxyribonucleic (mtDNA)

analysis, which resulted in an unfair trial. In allowing the evidence, the trial court

denied a motion to suppress filed by the Defendant, who argued that the process

was not sufficiently scientifically reliable to be used in court. No actual

admissibility hearing was conducted before trial. The court entertained testimony

regarding mitochondrial DNA evidence both at trial and at the hearing on the
 26 The trial in this case took place in late August and early September of 1996.

 27 The PCR method of DNA analysis has been held to be trustworthy, reliable and

admissible into evidence pursuant to Tennessee Code Annotated § 24-7-117(b)(1). State

v. Begley, 956 S.W. 2d 471, 477-78 (Tenn. 1997).

-27-

motion for new trial. The DNA evidence presented at trial concerned the results

of analysis by the FBI of hairs from the case, specifically, the hair found in the

victim’s pharynx and hair from the bed sheet where Crum testified he had placed

the sleeping victim.

The legislature has provided that the results of “DNA analysis” are

generally admissible in evidence without the necessity of expert testimony

proving that DNA evidence is trustworthy and reliable, provided that the offered

testimony comports with the Tennessee Rules of Evidence. Tenn. Code Ann. §

24-7-117. “DNA analysis” is defined in the statute as “the process through which

deoxyribonucleic acid (DNA) in a human biological specimen is analyzed and

compared with DNA from another biological specimen for identification

purposes.” Id. 

As a preliminary matter, we note that this is apparently the first case in

which the admissibility of mitochondrial DNA evidence has been presented as an

issue in the appellate courts in Tennessee. Mitochondrial DNA analysis is a

method of DNA testing which was apparently first implemented in the FBI

Laboratory in June of 1996.26 It is based on the Polymerase Chain Reaction

(PCR) method of DNA analysis, which is routinely used in laboratories and widely

accepted in courts across the country as scientifically reliable.27 The database

for comparison of results of the mitochondrial testing is still being developed. At
-28-

the time of the trial, according to the testimony of Special Agent Wilson of the

FBI, the database utilized by the FBI consisted of 742 individuals, 319 “of African

descent” and 423 “of European or Caucasian descent.”

Mitochondrial DNA testing was performed on certain hairs which were

recovered as evidence. Agent Wilson testified that the hair recovered from the

victim’s throat and a hair from the bed sheet were compared with saliva from the

Defendant. Analysis of the samples determined that all three samples shared a

common sequence. Testing also determined that the sequence in the three

samples did not match that of blood taken from the victim. 

On cross-examination, Wilson clarified the findings; he explained that the

two hairs shared 600 bases, while the victim’s blood sample shared 593 bases

with the other samples. He stated that “[t]he average number of differences

between any two Caucasian individuals is approximately six.” While he

maintained that the sample hairs were consistent with having originated with the

Defendant, he also stated that the tests could not show that the sample hairs

belonged to the Defendant to the exclusion of all others. 

In reaching his conclusions, Wilson did not assign a frequency rate to the

results of the mtDNA tests which were performed in this case, stating instead

only that the sequence had not before been observed in the FBI’s database of

742 individuals. Wilson testified, 

All I’m saying is we have a database of a certain size, and this

particular sequence has not been observed before.

I am not saying that it’s a particular frequency, one over this

or that, because it cannot be expressed that way because the

database is not large enough at the present, in its present form,
 28 Wilson mistakenly stated in his affidavit that the brown body hair was found “on the

victim’s buttocks.” He also mistakenly stated, “[H]airs from Ware would not be expected

to be found in the home where the attack took place, because Ware did not live there and

was not a regular visitor.”

-29-

present size to be able to assign a frequency, you know, like one

percent or whatever.

This . . . event would have to be observed many more times

in order to assign it a frequency, so what we do is state a fact.

By affidavit filed June 30, 1997, Agent Wilson indicated that FBI protocol

for mtDNA testing had changed since the time of the trial in this case. He stated

that although mtDNA analysis was initially limited to head and pubic hairs,

mtDNA analysis has since been expanded to include testing of hairs which are

typically “not considered suitable for significant microscopic com parison,”

including, in certain instances, body hairs. However, he also stated that “two

factors contributed to the decision on which hairs to type in the Ware case: the

probative value of the hairs, and the suitability for microscopic comparison.”

Wilson explained, 

A crucial aspect of these investigations . . . is the question of how

probative the evidence may be. . . . In the Ware case, information

provided to the FBI Laboratory indicated that the victim . . . was

found naked in an unkempt laundry room floor. Her body was then

moved by family mem bers and medical personnel prior to autopsy.

Accordingly, the finding of extraneous hairs would be expected to be

found on an unkempt laundry room floor. However, the finding of a

pubic hair in the victim’s throat can be attributed to contact that is

not merely casual. Moreover, the fact that the cause of death was

asphyxiation adds additional probative value to the discovery of the

foreign pubic hair in the throat. . . . [The] finding [of pubic hairs on

the sheet] is probative because the victim was . . . asleep on the bed

prior to the attack.28

On August 28, 1996, during the trial, the defense filed an affidavit by Dr.

William M. Shields, a geneticist, who stated, 
 29 Shields testified that he was available to testify at the trial and in fact listened to most

of the testimony presented at trial. Defense counsel testified at the hearing on the motion for

new trial that Shields was not called as a witness because:

[W]e made a legal decision that by the affidavit which Dr. Shields

submitted, and that based on Daubert, that the State had not made

their threshold showing of meeting the . . . test of validation [for

admissibility]. . . . When we submitted that affidavit, we believe [sic]

that the State had an obligation to respond to that. The Court ruled

against us on that. . . . [T]he DNA evidence was coming in. . . . We

stood on our legal position for appellate purposes, so we had no

obligation to put that evidence before the jury. 

 30 According to the testimony of Dr. Shields, the Ninth Circuit case took place after the

case sub judice.

-30-

On the basis of discovery, examination of the protocol, and

publications listed in that protocol, it is my opinion that mitochondrial

DNA typing as proposed by the Federal Bureau of Investigation, is

not yet sufficiently reliable to be scientifically reliable. The major

problem is that critical pieces of the validation process have yet to

be done or have been done with insufficient sample sizes to be

statistically reliable.

Although Shields did not testify at trial,29 he did testify at the hearing on the

motion for new trial, where he reiterated and expanded the statements made in

his affidavit. Shields stated that at the tim e of the hearing, he was a scholar in

residence at the University of Virginia law school, where he guest-lectured and

co-taught classes in advanced evidence, “in particular, [concerning] the issues

surrounding scientific evidence, both in toxic torts and DNA typing.” He also

stated that he had “been involved since 1990 in exploring the use of DNA typing

in forensic situations.” 

He further testified that at the time of the hearing, he was consulting in a

case in federal court in the Ninth Circuit which involved the forensic use of

mtDNA.30 He testified that he had read affidavits by FBI agents which were

submitted in the Ninth Circuit case and compared their findings to those of the
 31 In this case, analysis of “unassociated hairs” would have included analysis of the brown

body hair found in the victim’s rectum.

-31-

FBI agents who testified in the trial in the case sub judice. He concluded that the

FBI protocol differed in the two cases: 

[The agent testifying in the Ninth Circuit case] says that they should

do a mitochondrial DNA analysis on an unassociated hair. Agent

Wilson [who testified in the present case] stated over and over again

that their protocol was not to do such analysis. . . .31 What [this]

indicated to me . . . is that it’s consistent with the notion that the

protocol changes, depending upon how a change in the protocol will

help or hurt the prosecution.

In addition, Shields submitted as an exhibit to his testimony letters, which

Shields stated had been published, from Dr. Frederic W hitehurst, a supervisory

special agent of the FBI. The letters outline “various violations, Brady violations,

and apparent and obvious errors in testimony by special agents in the FBI lab.”

He also testified about an article published in 1993 in the International Journal of

Legal Medicine entitled, “The Application of Mitochondrial DNA Typing to the

Study of White Caucasian Genetic Identification.” He testified that the article

noted that in a sample of one hundred people, “somewhere between 12 and 20

pairs actually matched, and . . . there were actually four individuals [included in

the 12 to 20 pairs] in that database that matched each other, all four.” He

concluded, 

What you’re looking at is a piece of DNA that allows one to

discriminate amongst individuals, but until there’s a database that

allows you to look at how frequently these kinds of matches are

going to occur, to talk about identity is certainly misleading. . . . This

database shows that you can’t get identity out of this particular kind

of analysis.

Shields also testified that the International Journal of Legal Medicine was

one of the publications in which the FBI attempted to legitimate their studies on
-32-

mtDNA analysis. He testified that he had difficulty locating the journal and was

not able to obtain a copy of the article until the day before the trial because only

twenty-five libraries in the world subscribe to the journal. He stated, “[i]f you’re

going to publish something in a peer review journal, it should be a journal that

has wide circulation. The average medical journal or the average biological

journal, the average genetics journal is found in thousands of libraries.” He

emphasized that the scientific community cannot evaluate a validation study that

has been published in a journal which is not widely circulated.

Finally, Shields testified that the sample sizes against which tests were run

by the FBI were inadequate and concluded that mtDNA analysis had not been

adequately tested within the scientific community to qualify as reliable. He

concluded, 

The so-called validation studies haven’t been distributed widely

enough, in my opinion, for there to be a, quote, significant number

of [scientists with significant expertise who would agree that the

forensic use of mitochondrial DNA testing has not been scientifically

validated]. I think that there’s a small pool of individuals who even

know how mitochondrial DNA is done, and an even sm aller pool

who know how it’s presented in the courtroom.

Prior to the adoption of the Tennessee Rules of Evidence, courts in

Tennessee generally followed the test which had been set forth in the case of

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), in analyzing the admissibility

of scientific evidence. The test set forth in Frye was essentially that scientific

evidence was admissible only if it had “gained general acceptance in the

particular field in which it belongs.” Id. at 1014.
-33-

In 1997 the Tennessee Supreme Court held that Tennessee’s adoption of

Rules 702 and 703 as part of the Rules of Evidence superseded the general

acceptance test set forth in Frye. McDaniel v. CSX Transp. Inc. 955 S.W.2d 257,

265 (Tenn. 1997). Tennessee Rule of Evidence 702, “Testim ony by experts,”

states,

If scientific, technical, or other specialized knowledge will

substantially assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education may testify in the

form of an opinion or otherwise. 

Tenn. R. Evid. 702. Tennessee Rule of Evidence 703, “Bases of opinion

testimony by experts,” states, 

The facts or data in the particular case upon which an expert bases

an opinion or inference may be those perceived by or made known

to the expert at or before the hearing. If of a type reasonably relied

upon by experts in the particular field in forming opinions or

inferences upon the subject, the facts or data need not be

admissible in evidence. The court shall disallow testimony in the

form of an opinion or inference if the underlying facts or data

indicate lack of trustworthiness.

Tenn. R. Evid. 703. As our supreme court stated in McDaniel, under these rules,

a trial court must determine whether the evidence will substantially

assist the trier of fact to determine a fact in issue and whether the

facts and data underlying the evidence indicate a lack of

trustworthiness. The rules together necessarily require a

determination as to the scientific validity or reliability of the evidence.

Simply put, unless the scientific evidence is valid, it will not

substantially assist the trier of fact, nor will its underlying facts and

data appear to be trustworthy, but there is no requirement in the rule

that it be generally accepted. 

McDaniel, 955 S.W.2d at 265.

Finally, we note that “[i]n general, questions regarding the adm issibility,

qualifications, relevancy and competency of expert testimony are left to the

discretion of the trial court. The trial court’s ruling in this regard may only be
-34-

overturned if the discretion is arbitrarily exercised or abused.” Id. at 263-64

(citing State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993)).

We first note that it is somewhat questionable whether the DNA testimony

presented was such as to substantially assist the jury to determine a fact in issue.

We nevertheless conclude that the trial judge did not abuse his discretion in

admitting the results of the mitochondrial DNA tests into evidence. At trial,

Wilson testified that “mitochondrial DNA is extensively studied. . . . It’s very well

understood and characterized.” He also testified that mtDNA is “widely used” to

“identify the remains of servicemen that have been killed in Vietnam or Korea.”

This testimony indicates that mitochondrial DNA analysis also meets the Frye

standard of being generally accepted in its field.

However, even assuming that the DNA evidence was improperly admitted

into evidence, we are convinced that the any error caused by admission of the

evidence was harmless. See Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a).

Regardless of its accuracy or inaccuracy, W ilson’s testimony did not impart a

substantial amount of discernible information to the jury. Absent a frequency rate

or some similar interpretation of the test results, the testimony does not provide

a strong basis for scientific conclusion by a layperson. The only result that an

individual untrained in the analysis of DNA could reach after hearing Wilson

testify is that the common DNA sequence shared by the hairs tested and the

Defendant’s saliva had never before been noted in the 742 individuals that

comprised the FBI’s then-current database. Moreover, other scientific evidence

presented at trial which was more clearly interpreted for the jury (including

testimony by Hopkins, the hair comparison expert), although also inconclusive,
-35-

points to the Defendant as the donor of the hairs at issue. Thus, based upon all

circumstances, we conclude that this issue did not result in reversible error. 

IV. ADMISSIBILITY OF EVIDENCE OF SATANIC WORSHIP

The Defendant next argues that the trial court erred by disallowing

evidence that Paul Crum engaged in Satanic worship. Initially, we note that the

trial court did allow both the State and the defense to introduce a number of

examples of Paul Crum’s artwork. The drawings and paintings contained images

of what appeared to be skulls, skeletons, the grim reaper, a dagger through a

rose into a heart, a severed arm dripping with blood with a rose falling from the

fingers of the hand, a burning cross, and demons. Crum denied that any of the

pictures were Satanic in nature and offered alternative explanations of the

meaning of the pictures. Crum was also questioned about his appearance and

dress at the time of the crime, and Crum admitted to wearing crosses and chains.

Witnesses testified out of the presence of the jury about Crum’s interest in

Satanic worship. Nancy Egeland, whose brother is married to Crum’s sister,

testified that Crum once told her that he had sacrificed a dog because voices told

him to do it. She also testified that while she and her husband were visiting

Crum’s sister one evening, the group decided to watch a video about devil

worship. She stated that Crum walked past the room where they were watching

the video and said to his sister, “Don’t be showing that to people and discussing

me.” She also testified that on five or six different occasions, she had heard

Crum refer to a picture of Jesus as “dog” (“God” spelled backwards). In addition,

she testified that Crum told her when the Defendant vomited on the night of the
-36-

crime, “it was like a cool breeze, and it was like a demon had left [Crum’s] body

and entered [the Defendant’s] body because when [the Defendant] started

puking, it was like . . . somebody was in there throwing it out his mouth.” Finally,

she testified that Crum’s sister had once told her that when Crum’s youngest

child was born, “he was born with spinal meningitis, and . . . [Crum] gave Satan

his soul so [the child] wouldn’t die; and that he had also gave [sic] [the child’s]

soul to Satan . . . and that they were supposed to do an exorcism on him and he

didn’t want it done because he was afraid if he did, then Satan would take [the

child].” 

Amy Cook, a friend of Sheila Sanders King and Carla Sanders who

handcrafted leather items to sell, testified out of the presence of the jury that

Crum had approached her during the summer of 1994 about making a leather

bracelet for him. She testified that he told her he had a ring bearing the number

six and an ankle bracelet bearing the number six. He wanted a black bracelet

also bearing the number six to complete the triad. Cook testified, “I took it to

mean it’s the mark of the beast, six-six-six . . . .” Cook also stated that Crum told

her that “he listens to the devil, [the devil] comes and tells him what to do.”

According to Cook, Crum claimed to “go[] by the laws of Lucifer.” 

The Defendant argues that he should have been allowed to further explore

Crum’s involvement in Satanic devil worshiping for the purpose of further

impeaching Crum’s credibility and advancing the Defendant’s theory that Crum

was the perpetrator of the offense.
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The Defendant was able to bring to the jury’s attention substantial

information about Crum ’s interest in Satanic worship and other questionable

character traits and activities of the witness. The admission of additional

evidence of a similar nature was largely discretionary with the trial judge, and the

trial judge’s decision concerning such matters should not be disturbed on appeal

absent a clear abuse of that discretion. From our review of the record, we cannot

conclude that the trial judge abused his discretion by disallowing such further

evidence.

V. BIAS BY THE TRIAL COURT

The Defendant argues that the trial judge demonstrated bias against him

in favor of the State in the presence of the jury. He points to three brief

comm ents made by the trial judge during the trial to support this contention.

Under Tennessee law, “[i]t is well-established that a trial judge has broad

discretion in controlling the course and conduct of the trial, and that in exercising

that discretion, he or she must be careful not to express any thought that might

lead the jury to infer that the judge is in favor of or against the defendant in a

criminal trial.” State v. Cazes, 875 S.W.2d 253, 260 (Tenn. 1994) (citing State

v. Caughron, 855 S.W.2d 526, 536 (Tenn. 1993)). After a thorough examination

of the record in the case sub judice, we are unable to agree that the trial judge

demonstrated bias against the Defendant. We conclude that the trial judge acted

appropriately within his discretion. Although we are unable to find any error on

the part of the trial court, if any error was made, we are satisfied that it was

harmless. See Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a).
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VI. CUMULATIVE ERRORS

In his sixth claim of error, the Defendant insists that the cumulative effect

of errors made at the trial level deprived him of a fair trial. He argues that “[t]he

jury in the instant case was never permitted to hear a plethora of evidence

favorable to the Defendant.” Viewing the record as a whole, having evaluated

each issue individually and collectively, we conclude that the Defendant was not

denied a fair trial.

VII. SENTENCING

Rather than receiving the death penalty as requested by the State, the

Defendant was sentenced to life without parole for the felony murder. The trial

court later imposed concurrent twenty-five-year sentences for the rape

convictions, to be served consecutively to the sentence of life without parole. The

Defendant now challenges the imposition of consecutive sentences in his case.

When an accused challenges the length, range, or the manner of service

of a sentence, this Court has a duty to conduct a de novo review of the sentence

with a presumption the determinations made by the trial court are correct. Tenn.

Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative

showing in the record that the trial court considered the sentencing principles and

all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991). 

In conducting a de novo review of a sentence, this Court must consider: (a)

the evidence, if any, received at the trial level and the sentencing hearing; (b) the

presentence report; (c) the principles of sentencing and argum ents as to
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sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the defendant made on his own behalf; and (g) the potential or lack of

potential for rehabilitation or treatment. State v. Smith, 735 S.W.2d 859, 863

(Tenn. Crim. App. 1987); Tenn. Code Ann. §§ 40-35-102, -103, -210.

If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principals set out under the sentencing law, and

that the trial court’s findings of fact are adequately supported by the record, then

we may not modify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

We first find that the trial judge in this case conducted on the record an

analysis of the enhancing and mitigating factors and of the principles of

sentencing, thereby fulfilling his role in the sentencing process. Our standard of

review is thus de novo with a presumption that the determinations of the trial

judge are correct. 

In ordering consecutive sentences, the trial judge found that two factors

under Tennessee Code Annotated § 40-35-115 applied in this case. He first

determined that the Defendant is a “dangerous offender whose behavior

indicated little or no regard for human life, and no hesitation about committing a

crime in which the risk to human life is high.” Tenn. Code Ann. § 40-35-115(4).

He also found that factor (5) applied:
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The defendant is convicted of two (2) or more statutory offenses

involving sexual abuse of a minor with consideration of the

aggravating circumstances arising from the relationship between the

defendant and victim . . . , the time span of the defendant’s

undetected sexual activity, the nature and scope of the sexual acts

and the extent of the residual, physical and mental damage to the

victim . . . .

Id. § 40-35-114(5).

Having carefully reviewed the record in this case, we are doubtful as to

whether factor (5) is applicable. We believe that based on the language of the

statute, the legislature intended that factor (5) should generally be reserved for

cases involving ongoing sexual abuse. In the case at hand, there apparently was

no consequential “time span of the defendant’s undetected sexual activity.”

Based upon the evidence adduced at trial, the acts which warrant application of

this factor likely occurred within minutes of one another and certainly could not

have been separated by more than an hour or two. There was no evidence of an

ongoing sexual relationship between the Defendant and the victim. Therefore,

standing alone, the application of factor (5) in the present case would likely not

appear to justify the imposition of consecutive sentences. 

If this factor does apply, it would seem to justify ordering the two twentyfive-year sentences to be served consecutive to each other, rather than

concurrent with each other but consecutive to the sentence for murder. The

legislature apparently intended this factor to authorize consecutive sentences for

multiple child sex crimes. However, based upon the facts presented at trial

concerning the crime itself, we have no difficulty in affirming the trial court’s

determination that the Defendant is a “dangerous offender.” Thus, considering
 32 The legislature has provided that a person sentenced to life without parole shall never

be eligible to be released on parole. Tenn. Code Ann. § 40-35-501(h)(2).

-41-

that factor (5) was applied in conjunction with factor (4), we conclude that

consecutive sentences were statutorily warranted in this case.

We must also, however, consider the mandates of our supreme court

regarding consecutive sentences. Our supreme court has determined that

“consecutive sentences cannot be imposed unless the terms reasonably relate

to the severity of the offenses committed and are necessary in order to protect

the public from further serious criminal conduct.” State v. Wilkerson, 905 S.W.2d

933, 938 (Tenn. 1995). As previously stated, we have reviewed the record and

conclude that it supports the trial court’s decision. However, with regard to the

factor of protecting society from further criminal acts by the offender, it may be

argued that there can be no necessity to further protect society from an offender

sentenced to life imprisonment without parole, and that consecutive sentencing

would therefore never satisfy this criteria in such a case. While this argument

certainly bears logic,32 we observe that our supreme court has declined to give

the claim merit, denying permission to appeal in several cases in which an

additional sentence has been ordered served consecutive to a sentence of life

imprisonment without parole. See, e.g., State v. Robinson, 930 S.W.2d 78, 85

(Tenn. Crim. App. 1995), perm. to appeal denied (Tenn. 1996); State v. Leon

Barnett Collier, No 03C01-9602-CR-00072, 1997 W L 9722 (Tenn. Crim. App.,

Knoxville, Jan. 13, 1997), perm. to appeal denied (Tenn. 1997); State v. Sammie

Lee Taylor, No. 02C01-9501-CR-00029, 1996 W L 580997 (Tenn. Crim. App.,

Jackson, Oct. 10, 1996), perm. to appeal denied (Tenn. 1997). Furthermore, the

supreme court has upheld running a sentence consecutive to a sentence of
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death. State v. Black, 815 S.W.2d 166, 191 (Tenn. 1991). Rather than

attempting further analysis, we defer to the guidance of our supreme court and

to the discretion of the trial judge and affirm the imposition of consecutive

sentences in this case.

VIII. NEWLY DISCOVERED EVIDENCE

Finally, the Defendant contends that the trial court erred by failing to

declare a mistrial or halt jury deliberations for the newly discovered testimony of

Donna Pickett. After closing arguments and after the jury retired to begin

deliberations, the defense came forth with a new witness, Donna Pickett.

Defense counsel Hank Hill received word from his office that Pickett had

telephoned for the first time that morning. In open court, but outside the

presence of the jury, the defense filed a motion to hear new evidence. The trial

court denied the motion, but allowed the defense to preserve the new testimony

for the record at a later date.

On September 12, 1996, Donna Pickett testified for the record out of the

presence of the jury and after completion of the trial. She explained that she is

the Defendant’s aunt by m arriage and that her husband is also related to Carla

Sanders and Sylvia Kaye Dye. Pickett stated that Crum and Carla Sanders

visited her home on the day following the discovery of the victim’s body. She

testified that while there, Crum proceeded to tell her and her husband the story

of what happened on the night of the victim’s murder. According to Pickett, Crum

claimed that after the Defendant went into the bedroom with the victim, he

decided to check on the victim . When Crum was unable to find her, he began

searching the house for her and for the Defendant, who had also disappeared
 33 Apparently, Sanders was inside his truck parked on the street in front of 414 Stringer

Street. It is unclear from Pickett’s testimony why Sanders was there.

-43-

from the bedroom. Crum told Pickett that he then discovered the two in the

laundry room and that when he opened the door to the room, the Defendant, who

was apparently passed out, still maintained an erection. Crum told her that, not

knowing what to do, he then went outside and retrieved Carl Sanders from his

truck.33 Crum claimed that when he and Sanders went back inside the house,

Sanders picked up the victim and carried her to a light “to see her because [they]

knew something was wrong.” Crum said “that [Carl Sanders] looked at the baby

and said, She’s dead. He said, This baby is dead . . . . He looked up at me and

I looked at him and I said, We’ve got to put her back.” They put the child back

as they found her. Then, Sanders went back to his truck while Crum sat on the

porch “to figure out what [he was] going to do.” Dye and Gaddis arrived shortly

afterwards, Crum went back inside the house, and because Crum “didn’t know

how to tell [Dye]” about the victim, the three of them “smoked a joint” together

before Dye began to look for her child. According to Pickett, Crum told her, “[I’m]

sitting there with her and . . . I’m just starting to fall to pieces thinking, oh, my

goodness, this is just unreal . . . .” Pickett explained that she did not offer her

testimony earlier because she was not present at the trial and was unaware of

what testimony had been presented. She also stated that her husband told her

to “mind [her] own business” because if she became involved in the case, his

whole family would “hate” her.

We first note that “[t]he decision to grant or deny a new trial on the basis

of newly discovered evidence is a matter which rests within the sound discretion

of the trial court.” State v. Goswick, 656 S.W.2d 355 (Tenn. 1983). Thus, our
-44-

standard of review is abuse of discretion. State v. Meade, 942 S.W.2d 561, 565

(Tenn. Crim. App. 1996). “In seeking a new trial based on newly discovered

evidence, the defendant must first establish (1) reasonable diligence in

attempting to discover the evidence; (2) the materiality of the evidence; and (3)

that the evidence would likely change the result of the trial.” Id. (citing Goswick,

656 S.W.2d at 358-60). Moreover, “[i]t is true that newly discovered

impeachment evidence will not constitute grounds for a new trial, as a general

rule. But if the impeaching evidence is so crucial to the defendant’s guilt or

innocence that its admission will probably result in an acquittal, a new trial may

be ordered.” State v. Singleton, 853 S.W.2d 490, 496 (Tenn. 1993).

The testimony by Pickett in this case is impeachment testimony offered to

contradict Crum’s version of the events on the night of the murder. Therefore, to

justify ordering a new trial, we must find that the evidence is so crucial that “its

admission will probably result in an acquittal.” Id. We decline to so find. 

The materiality of the testimony is questionable. Although Pickett’s

testimony does present a new version of the events surrounding the victim ’s

death, the testimony does not show that the Defendant is any less culpable. To

determine that this testimony would likely result in an acquittal, we must first

accept the testimony as true. We must then accept the premise that because

Paul Crum lied about the discovery of the victim, he or someone else, perhaps

Carl Sanders, raped and killed the victim. We find it difficult to accept such a

theory. Accepted as true, this testimony shows that the victim was moved, not

that evidence was destroyed or removed, or that anyone other than the

Defendant committed the crime. We are thus unable to agree that this evidence
-45-

is so crucial that the trial judge erred by not granting a new trial for the Defendant.

This issue is therefore without merit. 

Accordingly, the judgment of the trial court is affirmed.

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

GARY R. WADE, PRESIDING JUDGE

___________________________________

THOMAS T. WOODALL, JUDGE