# FILED April 20, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE OCTOBER SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9705- CR-00164 ) Appellee, ) ) ) HAMILTON COUNTY VS. ) ) HON. DOUGLA S A. MEYE RS PAUL WILLI AM WARE, ) JUDGE ) Appe llant. ) (Felony Murder , Rape of a Chil d)

ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF HAMILTON COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : ARDENA J. GARTH JOHN KNOX WALKUP Distri ct Public

Defender Attorney Generaland Reporter DONNA ROBINSON MILLER MICH AEL J . FAHE Y, II Assistant Distri ct Public Defender Assistant Attorney General Suite 300 - 701 Cher ry Street 425 Fifth Avenu e North Chattanooga, TN 37402 Nashvill e, TN 37243 WILLI AM H. CO X Distri ct Attor ney General 600 Market Street , Suite 300 Courts Buil ding Chattanooga, TN 37402
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- 

# OPINION

The Defe ndan t, Paul W are, wa s in dicted i n 1994 for fel ony murder and multip le counts of rape of a child. The State fi led noti ce of intent to seek t he death penalty. A Ha milton Coun ty jury fou nd him guilt y of felony murder and t wo counts of child rap e, and h e was s entenc ed to life witho ut parole fo r the felony murder. At a subsequent sentencing heari ng, the trial court imposed concurrent twenty-five year sentences for the chi ld rape convi ctions and or dered that t he twenty-five yearsentences be served consecut ively to the sentence of li fe without the possibil ity of

parole. The Defe ndan t now ap peals his conv iction s and sentences pursuantto Ru le 3 of t he Tennessee Rules of Appell ate Procedure. We affirm the ju dgme nt of the trial co urt.

The Defendant presen ts eight issues on appeal: (1)whether the evidence pr es ented at trial is sufficient to suppo rt his convic tions; (2) wh ether the State withhe ld exculp atory in forma tion from the De fenda nt, resu lting in an unfair tria l; (3) wheth er the re sults o f mitoc hond rial DN A ana lysis were properly a dmitted into evidence; (4) whether the trialcourt erred by excludi ng evidence indicat ing that State witness Pau l Cru m pra cticed Satani c worship; (5) whether the tri al judge demonstrated bias against the Defendant

in the pres ence of the j ury; (6)whether there was su fficient accu mulation of e rrors t o mandate a new tria l; (7) whether
consecu tive sentences were prope rly imposed; an d (8) whether the trial court erred by fail ing to decl are a mistri al or ha lt jury deliberat ions because of t he testimony of a newly di scovered defense witness.1 Sylvia Kaye Dye , the victi m’s mother, and Jimmy Gree n, t he victim’s father, shared custody of their daught

er. During the week prece ding the cri me, the vic

tim resided

withher father, but the victim was visiting her mother on the weekend that the crime occurre d.
2 The Defendant’s

half-brother,David Ware, who shares w ith the Defendant a common father, is also th e half-brothe r of Sheila Sanders Ki ng, with w hom he shares acommon mother. At trial, Sheila refe rred to the Defendant as her “stepbrother,” but, they are not actually related by

blood or marriage.
3 Danny Gaddis testif ied that he and Dye dep arted for Zig gy’s around 7:30 p.m., while Dye testified tha

t they left a

t 8:30 p.m. -3- On the evening of F riday, Septem ber 30, 1994 , four-year-o ld Lind sey Green, the victi m in this case, was staying with her mother , Sylvi a Kaye Dye, 1 at 414 Stringer

Street, the home of Sheil a Sanders King. At the time, Dye wa s temp orarily living with Ms. King a nd King’ s two young sons. Dye, who planned to go out with her boyfri end for the ev ening, con tac

ted thevi cti m’sfat her , Ji mmy Green, at approxi mately 6:00p.m. Green agreed to pi ck up the vi ctim later in the evening, and Dye arrang ed for M s. King to watc h the vic tim until Green arrived.

The Defendant, who shar es family t ies wi th Ms. King, 2 arrivedat 414 Stringer Street du ring the afte rnoon to help C arl San ders, K ing’s fa ther, re pair a screen door. Danny Gadd is, D ye’s boyf riend, al so arrived at the home that afternoon after wor k. After cons umi ng some alcoholic beverages wit h the Defen dant, King, a nd Ca rl Sand ers, D ye and Gad dis depa rted at a pprox imate ly 8:00 p.m. for Zig gy’s, a local bar. 3

W hile at Zigg y’s, Dye receiv ed a phone call f rom Ms. King, who told her thatth e v ictim’ s nose had begun to bl eed. Ms. King ex plained t hat one of her
sons had a ccide ntally bu mpe d the vic tim’s nose while t he children played. Ki ng told Dye tha t the victim w anted h er moth er to com e hom e, and D ye agree d 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, heestimated the time to be “about 10:30.” He explained, “I don ’t wear a w atch.”
5 King beli eved that D ye and Gadd is would

return to he r h ome sometime a round 11:00 p.m. -4- At appro ximate ly 10:30 p .m., 4 Dye and Gaddis left Ziggy’s to go to another local bar. They walk ed back to 414 Str inger Street, saw the c hildre n playing inside the house thro ugh the scre en door, and d eparte d in their car without bei ng noticed by the chil dren. Theythen drove to an other bar, where they sta yed un til about 1:30 a.m ., at which tim e th ey w ent to a loc al W affle Hou se for bre akfast. Some where in the vici nity of 2 :30 a.m., Dye and Gaddis left t he Waffle House and dro ve directly to 4 14 String er Street.
During the tim e that D ye and Gad dis were gone, Ms. King’s sister, C arla Sanders, and he r boyfriend , Paul Cr um, arrive d at 414 Stringer S treet. Crum was deliver ing some marijua na that King had given him money to buy. King asked Crum to babysit t he children while she went out, and he agreed to do so for ten dollars an d a pac k of cigare ttes.

Ms. King depa rted on foot with he r father Carl San ders (who had remained at her home throughout the afternoon and early ev ening) at appr

oximately

10:45 p.m. 5 They stopp ed by Ziggy’s, ho ping to find Dye and Gaddis, and, not having found them, stopp ed by a liquor store next

door to Ziggy’s, then proceeded to t he D o Drop In Again, another local bar. While t here, King encoun tered th e Defenda nt. He wa s having a drink at th e bar an d seem ed “high ” to King. Ms
. King invited h im to spend the ni ght at her house. The Defendant had stayed at her home on a number of previ ous occasionsand in f act had li ved for

a br ief ti me6 Ms. King testified that the Defendant may have been livingat her home only three weeks before the night of the crime. -5- at 414 Strin ger Stree t approxim ately one month prior to the d ate of the crime. 6 Howeve r, Ms. King ask ed him to m ove out before Dye and the vict im moved into the home because, accordi ng to King, “ usually when he was drinkin g he w ould
come to my ho use an d break my wind ow to m y door. . . . [i ]t was a lit tle too crowded forme.” King test ified t hat when the Defendant st ayed at her home, he slept “in the floor or on th e couc h.”

Ron Ande rson, a “[w]ork acqu ain tance ” of the Defendant, saw th e Defendant sitti ng with King at the Do Drop In Again that evening. He testifi ed that he spoke with the D efenda nt a coup le of times during the evening . Accord ing to Anderson, during their seco nd convers ation, which occ urred shortly before Anderson left, the D efend ant sta ted, “‘D on’t hu rt my sis ter’ . . . in a w ay whe re if
a person was to say

something wrong, it coul d lead to . . . maybe an argument
or something . . . .” Anderson stated that he “just took it as someb ody being very drunk and just saying som ething they didn’t realize w hat they’d said.”

Anderson testif ied that he believed the Defendant l eft the bar around 2:15
a.m. Ms. King testified that s he left the b ar to drive to Alabama with some fr iends shortly after 2: 00 a.m. and stated that she was unsur e whetherthe Defendant
was still at the b ar whe n she left. King did no t return to 414 String er Stre et until 6:3 0 or 7:0 0 a. m.

Paul Crum was therefor e the only per

son who offered testimonyabout the events at 414 Stri nger Street immediately pr eceding thediscovery of the victim ’s7 Crum testifi ed that he could not reme mber whethe r the Defendant m ade one or t wo phone calls. -6- body. Crum testif ied that he arrived with C arla Sanders at 414 Str inger Street at 9:30 or 10:00 p.m . He explai ne d that he was l ooking for the Defendant so he could deliver to the Defendant some marijuana that the Defendant had r equested earlier that day. He stated that King suggested that the Defendant was either at Ziggy ’s or the Do Drop In Agai n. Crum departed and went fir st to Ziggy’s. Crum went next to t he Do Dro p In Again, where he l ocated the Defendant . He testi fied thathe delivere d the m arijuana to the Defe ndant a nd then went bac k to 414 Stringer S treet.

After Crum arrived, Car l Sanders , Carla Sanders, and Ms. King lef t the home, leaving Crum alone with the children to watch movies. Crum testif ied that the victi m and one of the boys fell asl eep in the l iving r oom while watchi ng the movies. He further

testif ied that t he Defendant arrived at 414 Str inger Street at appro ximate ly 1:30 or 2:00 a
. m. Crum stated that he put the chi ldren to bed when the Defendant ar rived and t hat he placed t he slee ping vict im, who was clothed and w rappe d in a co mforte r, on on e of the two twin beds in thebedroom where s he norm ally slept with h er moth er.

Crum described t he Defendant as “[d]runk . . . [ w]obbling, slurri ng when he
was talki ng . . . [a]nd real s ick, pal e looking” when he arrivedat the house. Crum testifi ed that upon arriving, the Defendant went into the kitchen, made a sandwi ch, ate it, “thre w up,” m ade a phon e call, 7 and the n went i nto th e bat hro om. While the Defendant wasin the bat hroom, Crum sat back down and began to watch a movie. Crum testif ied that when the Defendant emerged f rom8 Crum denied smoking marijuana i nside the house. -7- the bathroom, the Defendant stretched and told Crum that he wa s goin g to go lie down. The D efenda nt went into the same room where the vic tim was sleepi ng, and Crum sta ted that he ass umed h e “went in there to pass out” on the oth er twin bed, which was empty. While watching t he movie, Crum heard “two lit tle bumps, but . . . r

eally di dn’t thi nk nothing [sic] about it.” On cross-examinat ion, he admitted that the bum ps co uld have been a car door shutting beca use he he ard the bum ps sho rtly before D ye and G addis arr ived.
Appr oxima tely forty-five minutes to an hour later, according to C rum, Dye and Gaddis arrived back at 414 Stringer Stre et. Dye testif ied that when they arrived, Crum was a ctin g as he normally did. He was “mell owed out, he was calm, he was wa tching T V and s mokin g a joint.” 8 Dye and Gaddis joined Crum in the li ving room, wher e theyall eng aged in con versa tion. Ap proxim ately fifteen to twenty minu tes afte r arriving , acco rding to Crum , Dye a sked where the victim
was sleeping. Crum told he r that the victim a nd the Defe ndan t were s leepin g in the seco nd bed room.
Dye went to the b edroom door and attempted to open it, but could not do so because it was l ocked. She banged on the doo r, call ing the Defendant, and when she got no response, she went into the kitchen to retrieve a k nife to try to open the door, which she was unable to do. Crum stated that he went to hel p her and wa s succe ssful in unlo cking the door with the knife.9 A Federal Bureau of Inv estigations(FBI) agent testified that “urine c ould potentially b

e presentin [the] stained areas” of the sheet. Thetests run by the FBI did notconclusively determinethat the stain was urine, and assuming the stain was urine, the testing done did not match the

stain wi th any particular pers

on. Furth ermore, the FBI tested the sheet for seminal fluid. Danny Gaddis, wh o testified that he had engaged in sexual intercourse w ith Dye on the bed,wasincluded as a potential donor. The Defendant, however, was not mentioned as a potential donor for the fluid.
10 The pol ice col lected the bei ge pants and the underw ear four days

after the crim e. Both Gaddis and Crum denied owning the u nderwear. Although Shei la Sanders King pointed out the underw

ear topolice as

possibly belonging to

the Defendant, King, who often w ashed 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 w as common for the Defendant to sleep nude after returning home inebriated at night
.

-8- Once insi de th e roo m, Dye and Cr um noti ced t hat n eit her t he De fe ndant
nor the victim w ere in the beds. On the b ed where the vi ctim had slept , there was what appeared to be awet urine st ain, 9 and th e bed clothe s were in disarray. Dye testif ied that C rum lo oked unde r the be dcloth es for th e vic ti m, and when “[h ]e shook the cove rs . . . , [the victim’s] clo thing . . . fell out into the floor . .

. . [I] t was her top and shorts and her panti es was [sic]stil l in t he shorts.” In addit ion, bei ge men ’s pan ts con taining the De fenda nt’s wallet wer e later f ound betwe en a tw in bed and the dresser , which sat between the two twin beds in Dye’s r

oom, and a pair of red men’s under wear, which appar

ently was not

noticed i nitial ly, was l ater found at the foot

of the bed where the vict im had slept. The owner of th e underwear was never identified. 10
Dye walked across t he room and opened the door to the util ity room, which
was adjacentto the bedroom. On the floor of the utility room were t he Defendant and thevi cti m. Both were nude. 11 The Defendant was lying o n his back, and the victim was lying o n her stomach a few inches away wi th her head closes t to his feet. According to Dye, the victim “was purple,” he r “mouth was alre ady blue ,”12 Gaddis testified that the victim w as “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 t he touch. 12 Dye kicked the Defendant several times, bu t he did no t respon d or mo ve.

Gaddi s, u pon hearing Dye’ s reactio n to the scene, rushed into the room and scooped up the vict im. He and Dye rushed out of the house with t he child. As they left, acco rding to Gaddis, they saw Carl Sanders “ come out of the m iddle of nowhere” on the si dewalk leadi ng to the house. Sa nders grabb ed the victim’s arm and released it when Dye and G addis told him th ey were in a hu rry. 13 Dye and G addis jumpe d into the ir car and s ped the chil d to the emergency r oom of
a nea rby ho spital.

At the hospital, accor

ding to Dr. Susa n Hay es, the eme rgency room doctor, the victim w as alr eady “blue fro m lack of oxyg en.” She ha d no pulse o r heart rate. She was intubated in an attempt to induce br eathing. Dr. Hayes test ified thatwhen she intubated the victim, the child was very limber, andthere were no signs of rigor m ortis. After all atte mpts to resuscita te the vict im fail ed, the victim was pro nounc ed dea d at 3:24 a .m.
Dye then reques ted that D r. Hayes check t he victi m for signs of sexual abuse. Dr. Hayes compli ed. She stated at tri al, “[ H]er vag ina was tor n, her rectum was torn . It was the m ost horrible thing I’ d ever seen.” The child was also bruised on her

labia, around her rect um, and on her upper t highs. Alt hough there was not a lar

ge amount of blood on the chil d, there wer e indici a of internal-10-

bleeding. Dr. Hayes testif ied that t he injuri es to the chi ld were consi stent wit h the results of a rape, and more specifically, penetration by an adult male’s penis. Howeve r, Dr. Hayes also testifi ed thatshe did not do a t horough examinati on of the child because she feared she might disturb evidence and interfe re with t he medical examiner’s job.

Crum testified that a fter Dye a nd Ga ddis dep arted 41 4 Stringe r Street with the victi m, he dia led Carla Sander’ s number because it was the only number which came to his mind at the ti me, and he then immediately ran to Carla’s house and bang ed on the door, tel ling Carl a to call911 “because Paul Ware kil led LindsayGreen.” Crum test ified t hat he next l eft in hi s car to find D ye, Gaddis, and the victim b ecaus e he be lieved that D ye and G addis ha d left t h e house on foot. Howeve r, he soon reali zed that they had left in a car and deci ded instead to return to 414 Strin ger Stree t.

At the house, Crum found Car l San ders and t he Defendant, who was “standing there in a daze, like he didn ’t know wh at was g oing on .” Accord ing to Crum , the Defendant was wearing a differe nt pair of pants from th ose that he
wore when he had arriv ed at the house earl ier in t he evening. Cr um also test ified thattheDef enda nt h ad “ a co upl e drops of b loo d on him
. . . like somebody took
a pin or something and jabbed him once or twice around his face . . . .” Crum
soon w ent bac k outside to wait for the police to a rrive.
Officer Choquet

te of theChattanooga Poli ce Department test ified that he and his partner, Office r Bake r, were called to Strin ger S treet in th e early morning hours of Octob er 1, 199 4. He tes tified that he s aw a wh ite male, whom he later14 Officer Baker testified that Crum “seemed visibly disturb

ed” and that he “seemed to be very agita

ted, nervous, almost scared.” -11- determined to be Paul Crum, standing on t he corner of Stringer Street. He stated t ha t he aske d Crum , who wa s “shakin g unco ntrollably,” 14 whether Crum had called the police , to which C rum an swered , “No.” Choq uette further testif ied that when he later as ked Carla Sanders whet her she had called 911, she also denied having c alled. Ch oquette then de parted.

After searching the bl ock for the correct

house, Choquette ar rived at 414 Stringer Street and again met Crum, who emerged fr om the home as the officers arrived. At this p oint, according to Choquet te, Crum, stil l “shaki ng uncon trollably,” either asked whether “t he baby was dead” or tol d the offi cers that the chil d was d ead. Baker stated th at Cr um in itially told the officer s that the victim “had fallen and that she l ooked dead.” Crum also explainedthat the child had been taken to the h ospita l. Crum told the office rs that “he n eeded [them] to go in and see if

[they coul d] find [the Defendant]. ” According to Choquette, Crum informed them that th e Defendant “had r un around to theback of the house and was on his w ay to W hitwell.”

The officer

s went into the home and found the D e fendant in the laun dry
room lying in a pile of clothe s wea ring wh at Ch oque tte belie ved wa s eithe r a pair of jeans or possi bly some sort of pants and noshirt. Choquette test ified that after waking him up, the off icers handcuf fed the “very drunk” Defendant, who “started asking what w as go ing on .” Upo n bein g told that the officers were ta king h im to the police statio n, the De fendan t “juststarted go ing off cus sing and stuff.” Despite Crum’s testimony that the “off icers fou nd [the Defen dant] hiding” i n the15 Crum stated,“[H]e was j ust stiff as a b oard, wouldn’t move.”
16 In testing done on the shirt by the F.B.I., a small amount of human blood was found in someo f th e stains on the shir t. However, the F.B .I. was unable to de velop a conclusive profile of the donor of the blood eithe r because “there was insuffic ient DNA present or it wastoo degraded to make a determination as to who the potential source of that human blood was .” -12- laundry room and tha t the Defe ndant re sisted arre st, 15 Choquette maintai ned that the Defendant did not res ist arrest, but rath er sim ply nee ded a ssista nce to walk out of the hous e becaus e he was “sta ggering.”

Officer Baker, who tr

ansported the Defe ndant to the poli ce stati on, testified thatduring the ride, the Defendant alternated between acti ng pass ively and becoming angry and belli gerent. He testifi ed thatat one point, whil e at the police station, the Defendant “ lunged forwar d at me out of the chair and I had to use both hand s to sto p him . . . and kin d of pu shed him back down in to the cha ir.” Baker described the Defendant’s appearance as foll ows: I recall h e had on a, I b elieve it w as a w hite sh irt, a li ght colored shirt, and there were t wo, there wer

e, I don’t remember exactly

how many spots but there were some red spots on i t that appear ed to be blood. 16 . . .[H]e had on dark colo red pan ts. Other than t hat, . . . he was dish eveled. H e looked like he wa s intoxicate d.

At the poli ce stati on, the Defendant submitted to blood alcohol l evel test ing at approxima tely 1:30 in the aftern oon on Octob er 1, 199 4, and the tests indicated thatapproximatel y ten and a hal f hours after the victi m was transported to the hospital, the Defen dan t had a blood a lcohol level of .04 perce nt. Dr. Cleland Blake, a medicalexpert at trial , estimat ed that thi s meant the Defendant would have had a blood al cohol levelof approxi mately .20 or .21 percent

eleven17 Blake explained that his

estimation was based on the average rate at wh ich a person metabolizes

alcohol, but also em p hasized that different people metabolize alcohol

at sometimes widely v

arying rates.
18 The Defendan

t was chara

cterized a

s having re

d or auburn hair. -13- hours earlier. 17 Detective Michael Mathi s of the Chattanooga Pol ice Department testif ied at tri al that hespoke with the Defendant at the poli ce stati on on the night of the crime. According to Mathis, af ter being adv ised of his rights, the Defendant stated, “I wa s drunk and I don ’t remem ber anyth ing.”

At trial, Dr. Frank King, the medical examiner, presented evi dence accumulated during the p ostmortem examinati on of t he v ict im. He reported t hat the cause of death was mechanica l asphyxia, meaning that t he victi m was “unab le to breath e due to a mec hanica l interferenc e in norm al breath ing.” In addition to numerous othe r inju ries whic h the medical examiner descri bed and
e xplai ned in detail, the victi m sustained a contusion on the small of her back which was “consiste nt with that part of [her]body pressing against a br oad or flat surface .” King explai ned that “[ t]he only wa y for this to happen is f or that par

t of the back to be up against so mething w ith some pre ssure app lied.”

Also significa nt to the issues in this case were certain hairs found on and inside the child’s body. Du ring the autops y, Dr. King recove red a re ddish hair 18 which was s tuck to the victim ’s lip, a da rk brow n bod y hair w hich w as “pa rtly touching . . . t he mucosa of the rect um and partly touch ing the sk in of the an us,” and a reddish pubi c hair fr om the victi m’s pharynx. With regard to t he dark brown hair, he tes tified, It would take di rect contac t and a li ttle pr

essure appli ed t o get that hair to stick to the mucosal lini ng in the rec tum. . . . Any handling of the body, moving of the body fr

om one place to another,-14- examination of the body by a person or

persons could potentially be source s of conta mination to supply lo ose ha ir . . . . Furthermore, Dr. King testifi ed that the pubic hair found in t he victi m’s pharynx
was highly unus ual. He ex plaine d that a “norm al, brea thing, livin g pers on wo uld

. . . not [be expected] t o tolerate a hair in this locat ion” because any intrusio n into this area w ould trigge r a coug h reflex.

Dr. King te stified th at rigor m ortis “tends to start showi ng up first in the area of the jaw, i n the area of the small m uscles of the extrem ities.” With regard to the vi cti m, he stated, “[G]iven her size, her lack of clothi ng and temper ature whe re she was found, . . . I cou ld estima te maybe sh e had bee n dead on e to two hours or less. I think

thatcertainly after . . . two to four hours she . . . sh ould c ertainly have some rigor mortis devel oping in her jaw muscles,” which could be detected by an em ergenc y room doctor.

Dr. Cleland Blake, a defense witness who reviewed the data and evidence collected in the case, reached a sli ghtly di fferent c oncl usi on regar

din g th e ti me of death. He test ified t hat the fi rst change i n the postmortem period is livor mortis, or

settli ng. He explai ned,

That means if a b ody is l aying o n its ba ck, blo od ten ds to s ettle down ward so that t he back would be more purpl ish or pink , depending on how long its [si c] been. The longer the p eriod of t ime, the more in tense p urple it gets on the deep en d or lower part of the body. If the b ody is sto mach or face down, the n the purple or pink col or would be on t hat side. He further testifi ed that [t]hefirst

time, the first

period that livor [m ortis] wo uld be notice able in a white s kin woul d be somethi ng upwards of two hours, an hour an d a half to two hours , to see any deg ree of livor [mortis] for an y19 The hypothetical pos ed to Dr. Blake was as follows: [T]he ambient air temperature wa s 72 degrees; there was carp et on the floor, as well as

dirty clothes, it w

as alaundry room; [the victim was] presented at the

hospital at 3:10; the child’s mother, the child’s mother’s boy

friend, 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 ti me, the mother testified that she was at tempting CPR , cardiopul monary resuscitation. H owever,the actual temp erature of t he room in which the vict im was found was neve r determined. -15- pe rson. Nobo dy could apprec iate it earlier tha n one h our. Itma y take as lo ng as tw o and a half hours to becom e appa rent. In additio n, Blake test ified t hat based on the ci rcumstances of t he case, 19 he would esti mate thatthe chil d had been dead for thr ee hours to be per

ceived
as “cool.”

He also stated that in order for her to be perce ived as “col d,” she had to have been dead for “[ a]t least two hours, ” but he emphasized t hat he was being co nservative in his opinio n.

Blake fu rther testified that unde r the circum stance s, [i]n a chil d, ri gor [mort is] wo ul d not be apparent before two hours .

. . and if rigor [ mortis] starts out, anything starts, has a starting po int, and it’s a matter of deg ree, it ’s a matter of progressi on to the maximum stiffness that that body a nd that temp erature is capa ble of achieving. . . . [

A]ny movement of t he child, any picki ng up of the chi ld, dra ping, twisting , handling , moving , transpo rt will begin to breakthat earl y rigo r that has sta rt ed, so i t do es n ot b ecom e notice able for a longer time. . . . So in t ransporting a child i n a situati on like this, rigor [ mortis] may not be apparent at

all unt il after three or more hours.
Finally, Blake test ified t hat the victim “could ver y well have been deceased at the ti me” she wa s injured, depending upon whether she was “mopped off or cleaned up by t he pathologi st or the assistants.” He stated that he wo uld have expected to have seen more blood on h er, eve n if she was dece asedat t he t ime of the sex ual assa ult.20 Officerswhoinvestigated the crime scene photographed a red, plastic soda bottle in the

bathroom sink which was e ssentially the same size and diameter as the penis of an adult male. -16- Dr. King sta ted that he believed a ll injuries were infl icted on the victim before her death, but agreed that s ince the i njuries o ccurred befor e death, he would have expected some bleeding consi stent wit h the inj uries. Ki ng testi fied thathad the vic

tim died before the inj uries occurred, there would have been less bleeding
.

Dr. Kin g al so n ote d so me pe tec hia l he mo rrhag es inside t he victi m’s mouth, which he stated could be consistent with eit her asphyxi a or low oxygen, or “aggressi ve resu scitat ion, pla cement of endotr acheal tube. ” However, he concluded, “[I]n this case, the petechial hemorrha ges inside t he upper inner gum by thems elves do n’t prove a nything. . . . It’s the o verall patte rn with the ot her i njurie s present that make it mechanical asphyxi a.” Having noted no evidence of ora l rape d uri ng hi s exami nation of the vi ctim, he concl uded, “I cannot say there was o ral pen etration in this case.” Furt hermore, no seminal fluid was found in or on the chi ld’s body. Dr. King stated that t he inju ries coul d have been caused by the inserti on of any blunt object20 and testi fied that he could notstate with certainty that an adul t male penis penet rated the chi ld, alt hough he indicated he believe d that the c hild had b een “bru tally raped.”
Special Agent Chris Hopki ns of the FBI Hai r and Fibers Uni t testified about the hairs found at th e crime scene and those fou nd in and on the victim’s body. He ide ntifi ed the hair whi ch was found in t he victi m’s pharynx asa “re d Caucasian pubic hair ” which had be en “natural ly shed.” He also discusse d “at least ten red Caucasian pubic hairs”which were tak en from the sheet on t he bed-17-

where Crum testif ied he had placed the sleepi ng victi m. Hopkins also desc ribed these h airs as be ing “natu rally shed.” He testif ied that pubic hairs a re natu rally
s hed “just from p utting on a nd off you r underw ear, taking [on and off] y ou r clothes, maybe in the shower , those ki nd of activities ” and a greed that pu bic hairs may be naturally shed when one person rubs agai nst another. The hairs on the sheet w ere significa nt beca use, as H opkins e xplained , [W]h en h air or fibers fa ll on a piece of eviden ce, they ten d not to stay there very lon g. . . . [I]f there is no activi ty in [a] bed, then you would expect the hairs to stay t here because there is no reason for them to move around, but if someone is using t hat bed on a regul ar basis, . . . you w ouldn’t exp ect those hairs to sta y there. He also sta ted, “I wo uld no t expec t to find th at ma ny pub ic hairs in [a] bed that has just been slept in.”
Hop kins concluded that all hai rs, the hai r from the v ictim’ s phar ynx an d those from the sheet, we re “cons istent with o riginating fro m the [D ]efenda nt.” Howeve r, he also test ified t hat hair co mparison is “not a means of personal positive identification ,” and therefor e he could not st

ate conclusively wheth er the hairs belon ged to the De fenda nt. He did state that Carl Sanders, Danny Gaddis, and Paul Crum were each eli minated as being potential sourc es of th e pub ic hairs.
Hopkins also testif ied that t he hair found on the vict im’s li p was red in col or and was likel y a chest hai r. He stated that the hair removed from th e victim ’s
anus was a brown Cauc asia n body hai r and therefore was “not suitable for comparison.” He explained, The only two r

egions, t he only two t

ypes of hair

s that are s uitable for comparison purpos es are . . . head hairs a nd pu bic hairs. . . . Hairs, otherhairs than head hairs and pubic hair s, these body a rea hairs21 No further testimony regarding this evidence was offer ed at trial.
22 The attorney examining Taylor characterized it as being “dark red-brown” in color, but Taylor simply stated that it “just a ppeared to b

e a stain.”
23 At the time of the trial, Crum and Carla Sanders, his girlfriend, had two young children wholived with their

mother at Carl Sander’s home. Crum had also fathered a daughter wi th another w oman; the daughter lived w ith her mother. Crum was l iving out of his car and staying periodic ally with friends and family. -18- or ha irs on your

arms or your l egs, they tend to look l ike other peop le’s hai r, so there’s not a signif icant associ ation that can be made when c ompa ring those hairs.
Anotherperple xing bit of evidence was presented at trialby Special Agent Keith Howla nd of

the F BI. He t estifi ed that human blood was f ound on a bean bag ch air in the laun dry room . Howlan d stated, I identified the huma n blood on [the ch air] a nd h ad DNA profiles developed, but at t hat ti me I could not draw a con clu sion. Subse quent to my transfer from the laborator

y, addit ional samples of kno wn st

anda rdswere se nt i n andI un dersta nd t hat some comparisons were made to an indi vidual named [Carl] Sanders, but I did not perform those DNA tests. 21

In additio n, Mike Taylor, the offi cer who videotaped the cri me scene in the
e arly mor ning h ours o f Octo ber 1, 1 994, te stified a bout a dark s tain 22 on the bedspread in the master bedroom, which also appeared on t he videotape of the crime scene that

was presented to the jury . This stai n was never tested.

Othereviden ce pre sente d at trial c once rned P aul Cr um’s background and behavior

near the time of thecrime. Crum test ified t hat as a chil d, he was sexually, men tall y, and p hysica lly abus ed by h is fathe r. He a lso sta ted tha t in September of 1994, he tol d the Defendant, whom he had known as a frie nd, that he “was wanting to receive [ psychiatric]help because I didn’ t ever want to have the feelingor even thi nk about [sexually abusing] my kids.” 23 He testified , “I just,-19-

I told [t he Defendant] t hat I was realscared that as I gotolder, t he thoughts and all that, y

ou know, probabl y be, you know, wanting to do to my kids, an d . . . . I just didn’t want to have that feeling or though t.” He testif ied that shortly a fter this crime, he sought psychi atric hel p and checked himself into a t rea tmen t facility, where he s tayed very briefly.

W ilma Jean Pack, fr

om whom Crum had once rented a room, t estifi ed about artwork done by Crum which Crum had given her el even year ol d son. The drawings contained i mages of skulls and skeletons. Pack also testif ied that Cr um once showed her son a pict ure in a magazine of Disne y chara cters e ngag ing in
sex. Crum admitted to having done s o, but exp lained tha t he did no t intend to show the child t hat parti cular pic ture; he stated that t he Disney pict ure appeared at the bottom of

a page in a tat

too magazine which he was showing the b oy . Crum also admitted to having smoked marijuana wit h the boy, but he claimed that he did so on ly after the ch ild’s paren ts had gr anted h im perm ission to sm oke with the chil d.
Finally, both David Ware, the Defendant’s hal f-brot her, and his wife, Carol Ware, testif ied that Cr um had visited their home on O ctober 1 , 1994, the day followi ng the crime . David W are testified that Crum was “fi dgety,” and Carol Wa re stated that Crum was “walking fun ny.” She stated, “H e was very prote ctive of his private a rea. He w as stiff legge d.” Both Da vid and Carol Ware testifi ed that C rum “had his hands in his pants adjusti ng himself quite often,” as thoug h he was experien cing som e irritation in his c rotch are a.-20- I. S UFFICI ENCY OF THE EVI DENCE The Defendant fi rst arguesthat the eviden ce is insuffi cient to support the jury’s findingthat he was gui lty of felony murder

and rape of a chi ld. The Defendant argues that the evidence p resented at t rial showed tha t “Paul Crum

. . . had far more of an opportunity to commit t hese crimes because i t was uncontrover

ted that hewas wit h [t he v ict im] from 10 :45p.m. until she was found by her mo ther sho rtly before 3 :00 a.m .” The D efend ant po ints to s pecific evidence i ntr oduced at tri al to suppor t his asser

tion, i ncluding, among other evidence, the testimony by Dr. Cleland Bl ake regarding t he time of deat h of the vi cti m, the failure o f investigato rs to test the stain on the master b ed, the failure of investi gators to ex amine Carl Sanders and PaulCrum for evidence imm ediate ly aft er the cr ime, the l ack of evi dence on the Defendant ’s body, t he brown hair fou nd ins ide the victim’s rectum, and Crum’s admi ssion that he fea red he wou ld sexua lly abuse h is own ch ildren.

Tennessee Rule of Appell ate P rocedure 13(e) prescribes that “[findi ngs] of guilt in criminal actions whet her by the t rial cour t or jur y shall beset asideif the evidence is insufficient t o supp ort t he findi ng by the trier of f act beyond a
reaso nable doubt.” T enn. R . App. P. 1 3(e). “Qu estions c oncern ing the cre dibility of the witn esse s, the w eight a nd valu e to be given th e evide nce, a s well a s all factual issues ra ised by th e eviden ce, are resolve d by the trier of fac t, not this Court.” State v. P appas , 754 S.W.2d 620, 623 (Tenn. Cr im. App. 1987) ( citing State v. Grace , 493 S.W.2d 474, 476 (Tenn. 197 3)). Nor may th is Court re-weigh
o r re-evalua te the evide nce in the record b elow. State v. Evans , 838 S.W.2d 185, 191 (Ten n. 1992) (citi ng State v. Cabbage , 571 S.W.2d 832, 836 (Tenn. 1978)).-21- A jury verdict ap proved b y the trial judg e accre dits th e State’s wi tnesses and resolves all co nflicts in favor o f the State

. Id. (citi ng State v . Wil li ams , 657 S.W.2d 405, 4 10 (T enn. 1 983)) . On ap peal, the State is entitl ed to the strongest legitimate view of t he evidence and all i nferences therefrom

. State v. Tug gle , 639 S.W.2d 913, 914 (Tenn. 1982) ( citing Cabbage , 571 S.W.2d at 835). Because
a verdictof guilt r emoves the presumpti on of innocence and replaces i t with a presumption of guil t, the acc used has the burd en in this Court of il lustrat ing why t he evidence is insufficien t to suppo rt the verdict re turned b y the trier of fac t. McBee v. State , 372 S.W.2d 173, 176 (Tenn . 1963); see also Evans , 838 S.W.2d at 191 (cit ing Grace , 493 S.W .2d at 476 ); Tug gle , 639 S.W.2d at 914.

In the case at bar , a great dealof circ umstantialevidence was i ntroduced. Desp ite some evidence suggesting t hat the Defendant may not have committed the crime, ther

e was clearl y substanti al evidence presented at t rial i ndicati ng that the Defendant did commit the crime: Most obvious is evidencepresented that the Defendant and the victi m were discovered nude together i n a room locked fr om the inside. Ad diti onally, al though the two medi cal experts who testi fied at t rial differ ed in their estimati ons of the vi ctim’s t ime of death, Dr. King concluded t hat the victi m had been dead “one to two hour s or less,” a t ime period which corresponds with the t ime thatthe Defendant was pr esent in t he home. Fina lly,
an FBI agent test ified based on hair compari son that hair found on the bed sheet where the vict im slept and t he hair ins ide the victim’s pharynx all “were consistent with origina ting from the Defe ndant.”

This is buta small sampli ng of the evide nce pre sented at trial which p oints to the Defe ndan t as the perpe trator. It is s imply n ot within our purvi ew to weigh-22-

this eviden ce against other evidence favorabl e to the Defendant. We must instead give grea t d eference to t he findi ngs of the j ury. Therefore, vi ewing the evidence in li ght most favor able to th e prosecuti on, we concludethat there was sufficie nt evide nce fro m wh ich a re ason able person cou ld have determined the Defen dant’s gu ilt, and we th erefore a ffirm the co nclusion of the jury.

II. BRADY VIOLA

TION T he Defendant next

contends that

the State wi thheld fr om the defens e exculpatory informati on, which res ulted in an unfair t rial. He argues that theState did not discl ose before trial (1)“the color and descript ion of [t he] hair f ound in the victim’s anus”; (2) the discovery of Car l Sand ers’s b lood o n the D efend ant’s p ubic hair; (3) a statement made by Paul Crum to Officer Baker tha t he had hea rd a cry
on the night of the mu rder; and (4) a state ment m ade by Jim my Gre en, th e victim’s father, to Assistant DistrictAttorney Lee Davis that he had made phone calls to 414 Stri nger Street between 9:00 and 10: 00 p.m. on the ni ght of the murder which were never answered.

In Brady v. Maryl and , the United States Supreme Court establis hed the prose cution ’s duty to f urnish the accused with exculpatory eviden ce th at is material to either

the accused’s guilt or innocence or to the potenti al punishment which may be imposed. 373 U.S. 83 (1963). In order to establi sh a due process violat ion under Brady v. Mary land , a defendant must demonstrate t he following: 1. The defendantmust have request ed the informati on (unless t he evidence is obviously exculpatory, in which case the State is bound to release the inform ation whethe r requested o r not); 2. The State must have suppressed the i nformation; 3. The information must have been favorable to the accused; and 4. The inform ation m ust ha ve bee n ma terial.-23-

State v. Edg in , 902 S.W .2d 387, 389 (Tenn. 199 5).

In order to establish t hat exculpat ory ev idence is “materi al,” a defendant must show that “t he favorabl e evidence could reasonabl y be taken to put the
w hole case in such a d ifferent light as to unde rmine c onfiden ce in the ve rdict.” Kyles v. Whitley , 514 U.S. 419, 435 (19 95); see also Edgin , 902 S.W.2d at 390. There must be a “‘reasonabl e probability that , had the evi dence been discl osed 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 i n Kyles urged thatthe cumulati ve effect of the suppres sed e vidence be consi dered to determine materiali ty. 514 U.S. at 436.

The State is not requir ed to discl ose informati on that the accused already possesses or is able to o btain, Stat e v. Ma rshall , 845 S.W.2d 228, 233 (Tenn. Cri m. App. 1992), or

informati on which is not possessed by or under t he control of the pros ecuti on or ano ther gove rnmen tal agenc y. Id. Under Brady , the indivi dual prosecutor

has a duty to learn of any favo rable evid ence k nown to others acting on t he government’s behalf in the case, incl uding the pol ice. Kyles , 514 U.S. at 437.

With regard to the hai r found in the vi ctim’s rectum, the Defendant argues that the defense was never notifi ed of any examinat ion by theFBI of the brown hair removed f rom the victim’s a nus. Accordingly Defendant Wa re was precl uded fro m submitti ng the hai r along with a k nown sam ple of Paul Cru m ’s hair w hich w as alre ady in th e State ’s possession for a comparis on b y an independent l aboratory. The defense was also precl uded from obtain ing a hair exper t ofits ow n for testimo ny in the ins tant trial . . . .24 See discussion infraof issue regarding admissibil ity of DNA evidence

. 25 The evidence receipt is included in the re

cord, but the re is no indication on the receipt as to precis

ely when it was tur

ned over to

the defense. -24- At trial, but outsid e the he aring of the jury, d efense coun sel Ha llie McFadden stated, “T his [hair] i s s omething that ’s li sted in t heir inventories, but
we haven’ t e ver seen it . We haven’t seen a photograph of it . We don’t know anything about thi s hair except tha t it was col lected f rom the anal orifice.” The State replied tha t the hair wa s in th e possession o f a hai r anal yst f rom theFBI who was to be a witness i n the tri al, that the State had pr

ovided the defen se with results from all tests run by the T ennes see Bu reau of In vestigation and the FBI, thatthis parti cular hair was not tested because it was d ee med unsuitable f or comparison by the FBI, 24 and that th e evidence rece iptof Detective Mike Mathis, which had been in the poss ession of defense counselforapproxima tely one year, stated that a h air was collected from the victi m’s anal ori fice on October 1, 1994 dur ing theaut opsy

of t he v ict im. 25

We canno t a gree t hat there was a Bradyviolat ion in t his instance. The defense received i nfor matio n that a hai r was recovered from the vi ctim’s anal
area prior

to trial. N ot only was the hair l isted “in . . . inventories,” as defense counsel admitted, but the defense al so received a co py of t he test res ults fr om the FB I which ind icate that no testing was done o n the ha ir. Moreove r, despite knowledge of the existence o f the hair, the defen se never made any pret rial request to have th e hair inde pende ntly tested. W e conc lude that th e State fulfi lled i ts obli gation by f urnishing informati on about the hai r to the defense-25-

before trial. Certainly, the State ma y n ot now be blamed for th e failur e of the defense to requ est independent testingor explor

e the issue further before trial.
Furthermore, even assuming that a Brady violati on occurred concer ning the hair, we are unc onvinced tha t the hair constitutes exc ulpatory evidence. The hair was deemed unsuitabl e fortestingand as such, was never linked to any one individu al. Additional ly, even if the hair had been matched to any one per son, the uncleanliness of the home where the vict im’s body was found greatly reduces the probative value of evidence that a hai r wa s fo und i nsi de t he v ict im’ s re ctu m. Photogra phs and testi mony presented at t rial i ndicate t hat the house at 414 Stringer Streetwas unke mpt a nd un cle an. Ther e wer e man y i tems

strewn about the floors, dirty

dishes thr

oug hout the house, and dirty clothes on the laun dry
room floor. Because it i s evident that the f loors had not been recentl y vacuumed at the time o f the crim e, it is quite conceivab le that hair from a nu mber of visitors to the home was present on the fl oors of thehom e. It is also q uite co nceiva ble thata ha ir

from the floor

of the home could hav e become embedded in the vi cti m’ s orifi ce d uring the course of a brut al rape or even possibly during the transpo rt of her bo dy after the crime.

The Defenda nt also alleges three other Brady violat ions which we conclud e are unsup ported b y the reco rd. H e fir st argues t hat the State did not not ify t he defense that the bl ood of Carl S ande rs was found on the Defe ndan t’s pub ic hair. The only evi dence of thi s allegat ion in t he record is an affidavi t by David Ross, Ph.D., filed on Sep tembe r 10, 199 7, in which Ross s tates, On April 10, 1997, I was pre sent at a l ecture giv en by Assistant Hamilton County D istrict Attorney, Lee Davis, l ead prosecutor i n the case against Paul William Ware, to my Psychology and Law class-26- from the Univers ity of Tennessee
. . . . Durin g the le cture L ee Da vis st ated that a blood sam ple found on a pubic hair of Pa ul Wa re belonged to Car l Sand ers, fath er of S heila Sanders, in whose home the homicide of

Lindsey Green al legedly took place. The Defendant also al leges that Paul Crum made a statement to Off icer Baker shortly after the crime that, wh ile at 414 Stringer S treet, he heard a cry o n t he nighttha t the vict im was kill ed. However, i n subsequent statements and testimony, neithe r Crum nor Ba ker m ention ed this fact. Fin ally, the Defendant contends that Di strict

Attorn ey Da

vi s ha d a c onv ers ati on wi th J immy Green, the victim’s father, in which Green stated that he m ay have made unanswered phone calls to 414 Stri nger Street on the night of the murder. However, thi s fact was mentioned only bri efly dur ing the trial out of the hearing of the jury by Davis, who stated that after furt her convers ation with Green, Green concluded that he di d not feel “comfortable s aying [under oath] th at he remember[ed] when hemade a phone ca ll or didn’t make a p hone call.” Gree n was neve r called to testify.

We a re unconvinced that the for egoing evidence is exculpator y; nor ca n we conc lude th at this e videnc e is ma terial. T herefo re, this issue is withoutmerit.

III . ADMI SSIBI LITY OFDNA EVIDENCE In his thi rd assignment of error, the Defendant ar gues thatthe t rial court impro perly allowed testimo ny regarding m itochondri al deoxy ribo nucle ic (mt DNA) analysis, which re sulted in a n unfair trial. In all owing the evi dence, the trial court denied a motion to suppress filed by the Defendant, who argued that the process
was not suffi cientl y scientifically reli able to b e u sed in court . No actual admis sibility hearing was conducted before trial. The court enter tained testimony regarding mit o chondrial DNA evidence both at t rial and at the hearing on the26 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 trustw orthy, re liable an d admissible intoevidence pursuant to Tennessee Co de Annotate

d § 24-7-117(b)(1). State v. Begley , 956 S.W. 2d 471, 4 77-78 (Tenn. 1 997).

-27- motion for new trial. The DNA evidenc e prese nted at trial co ncerne d the res ults of analysis by the FB I of hairs from the ca se, specifically, the hair f ound in th e victim’s pharynx and hai r from the bed sheet where Crum testi fied he had pl aced thesl eepi ng v ict im.

The legisl atur e has provided that the results of “DN A analysis” are gene rally admissible i n evidence wit hou t t he necessity of expert

testimony proving that

DNA eviden ce is trustwor thy and rel iable, p rovided t hat the off ered testimony

comp orts with the T ennes see Ru les of Evide nce. Te nn. Co de Ann . § 24-7-117. “DNA analysis” is defi ned in the statute as “the process t hrough which d eoxyrib onuc leic acid (DNA) in a human biological specimen is analyze d an d compared wit h DN A from another biol ogical speci men for identificati on purposes .” Id.

As a prelimin ary ma tter, we note that this is app arently the first c ase in which the admissibilit

y of mitochondrial DNA evidence has been presented as an issue in t he appe ll ate courts in Tennes see. Mit ochon dri al DN A ana ly sis is a method of DNA tes tingwhich was appar entl y fi rst i mplement ed in t he FBI Laboratory in June of 1996. 26 It is ba sed on the P olymerase Chain React ion (PCR) method of DNA analysis, which is routin ely use d in lab orator ies an d wide ly accepted in courts

across the count ry as scien tifi cally r eliabl e. 27 The dat ab ase forcomparison of r

esults of the mitochondr ial test ing i s sti ll b eing d evel oped. A t-28-

the time of t he trial , accordi ng to the te stimony of Speci al Agent Wilson of t he FBI, the database uti lized by t he FBI consisted of 742 indi viduals, 319 “of Afr ican desce nt” and 4 23 “of Eu ropean or Cau casian d escen t.”

Mitochondri al DNA testing was perf ormed on c ertain hairs which we re recovered as ev idence. Agent Wilson testif ied that t he hair recov ered from the victim’s throat and a h air fr om the bed sheet w ere com pared w ith saliva f rom the Defen dant. Analysis of the samples determined that al l three sampl es shared a
common se quenc e. Testing al so determined t hat the sequence i n the three samp les did no t match that of bloo d taken from the victim.

On cross-examinat ion, Wilson clari fied the findings; he explained t hat the two ha irs sha red 60 0 bas es, wh ile the vict im’s blood sample shared 593 bases with the other sa mples. He s tated th at “[t]he average number of differ ences bet we en any two Caucasian i ndividual s is approxi mately six .” While he maintained that the sam ple hairs we re cons istent with h aving orig inated w ith the Defen dant, he also stated th at the tests could n ot show that the sample h airs belong ed to the D efenda nt to the exc lusion of a ll others.

In reaching his conclusions, Wilson did not assi gn a frequency r ate to the results of the mtDNA tests which were perf ormed in thi s case, stat ing instead only that the seque nce had n ot before been observed in t he FBI’s databas e of 742 ind ividuals. W ilson testified , All I’m sayingis we have a datab ase of a certa in size, a nd this particul ar sequence has not been observed befor e. I am not saying that it’s a partic ular freq uenc y, one o ver this o r that, because it cannot be expressed that way because th e da tabase is not l arge enough at th e present, i n its pres ent form ,28 Wi lson mistakenl y stated in his affidavi t that the brown body hair was found “on the victim’s buttocks.” He also mistakenly stated, “[H]airs from Ware would no t be expected to be found in the home where the attack took place, because Ware did not live there and was not a r

egular visitor.” -29- presentsize to be able to assi gn a frequency, you know, li ke one percent or wh atever. This .
. . event would hav e to be observed many more t imes in order to a ssign it a freq uency, s o what w e do is sta te a fact.
By affidavit filed June 30, 1997, Agent Wilson indicated that FBI pr otocol formtDNA testing had changed since the time of the tri al in t his case. He stated thatalthough mtDNA analysis was initial ly limited to head and pubic hairs, mtDNA analysis h as since been e xpande d to include testing of hairs which are typically “ not co nsidere d suitable for significan t microsc opic com parison ,” includi ng, in certain instances , body hairs . However , he al so stated that “two factors contributed to the deci sion on which ha irs to type i n the Ware case: the probative value o f the ha irs, and the su itabili ty for micro scopic c ompa rison.” Wilso n explaine d, A crucial aspect of t hese investi gations . . . is the que stion of

ho w probative the evidence may be. . . . In the Wa re case, informati on provided to the FBI Labor atory i ndicated that the vict im . . . was found naked in an unkempt l aundry room fl oor. Her body was then moved by family mem bers and medical pe rsonnel prior to au topsy. According ly, the findi ng of extr aneous hairs woul d be expected to be found on an unk empt laun dry room floor. However, thefinding of a pubic hair in the victim ’s th r oat ca n be a ttributed to con tact tha t is not merely casua l. Moreover , the fact that the cause of deat h was asphyxiat ion adds add itional probative value to t he discovery of the f oreign pubic hair

in the t hroat. . . . [The]finding[of pubic hairs on the sheet] i s probativ

e because the vi ctim was . . . as leep on the bed prior to the at

tack. 28

On August 28 , 1996, during the trial, the defense filed an affidavit by D r. William M. Shield s, a gene ticist, who sta ted,29 Shields testified that he was a vailable to testify at the trial and i n fact listened to most of the testimony presented at trial. Defense counsel testifie d at the hearing on the motion for new trial that Shields was not called a s a witness because: [W]e made a legal decision that by the a

ff idavit which D r. Shields submitted, and that based on Daube rt, that the State had not made theirthreshold showing of me eting the . . . test of validation [for admissibil ity].
. . . When we submitted that affidavit, we believe [sic] thatthe State had an obligation to respond to that. The C

ourtruled againstus

onth at
. . . . [T]h e D NA evid en ce

wa s c om in g i n. . . . We stood on our legal po sition for appellate purpo ses, so we had no obligation

to put that e

vidence b

efore 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

di sco very, examination of the protocol , and publicat ions listed in th at proto col, it is my opini on that mitochondrial DNA typing as p roposed by the Feder al Bureau of

Investi gation, is not yet suff icient ly rel iable to be sci entifi cally r eliabl e. The major problem is that cri tical piece s of the validatio n proce ss have yet to be done or have been don e with ins uffici ent sample sizes to be statistically reli able.
Although Shields di d not test ify at trial, 29 he did test ify at the hearing on t he motion for new tr ial, wher e he reiter

ated and expanded the sta teme nts m ade in his affidavit. Shie lds stated that at the tim e of the hearin g, he w as a sc holar in residence at the University of Virginia law school, where he guest-l ectured and co-taught

c lasses in adv

anced evidence, “in part icular, [concerni ng] the is sues s urr ounding scientifi c evidence, both in toxic torts and DNA typing.” He also stated that he had “b een involved since 1990 in explori ng the use of DNA typi ng in forensic situations.”

He further

testif ied thatat the ti me of the heari ng, he was consult ing in a
case in federal court in the Ninth Circui t which involved the forensi c us e of mtDNA. 30 He tes tif ied that h e had read affidavits by FBI agen ts which were submitted in the N inth Circu it case and compared t heir fi ndings to t hose of the31 In this case, analysis of “unassociatedhairs” wou ld have inclu ded analys is of the brown

body hair

found in the

victim’s rectum. -31- FBI agen ts who testified in the trialin the case sub judice . He concluded t hat the FBI pro tocol differe d in the two cases: [The agent test ifyi ng in the N inth Cir cuit ca se] sa ys that th ey sho uld do a mitochondri al DNA analysis on an unassociated hai r. Agent Wilson [who testified in the prese nt cas e] state d over and o ver ag ain thattheir protoc ol was no t to do suc h analys is. . . . 31 What [this] indicated to me . . . is that it’s consistent

with the notion t h at the protocol changes, depe nding upon how a chan ge in the pro tocol w ill help or hurt

the prosecut ion.

In addition, Shiel ds submitted as an exhibit to his testimony let ters, which Shields stated had been publ ished, f rom Dr. Frederic W hitehurst, a supe rvisory special agent o f the FBI. The letter s outli ne “various vi olations, Brady vi olations, and apparentand o bvious errors in testim ony by spec ial age nts in the FBI la b.” He also test ified about an arti cle publi shed in 1993 in the I nternati onal Journal of Legal Med ici ne entitl ed, “The Appli cation of Mitochondri al DNA Typing to t he Study of White Caucasian Geneti c Identi ficati on.” He test ified t hat th e article noted thatin a sample of one hundred people, “somewhere between 12 and 20 pairs actu ally match ed, and
. . . there were actua lly four ind ividuals [includ ed in the 12 to 20 pairs] in t hat d atab ase t hat matched e ach ot her, all four .” He conclud ed, What you’r e looking at is a piece of

DNA that allows one t o discrimin ate amongst indiv iduals, but untilthere’s a databas e that allows you to look

at how frequ ently t he se kinds of m atches are going to occ ur, to talk about identity is certain ly misle ading . . . . This database shows that you can’t get identit y out of t his parti cular kind of analysis.

Shields also testif ied that t he Internat ional Jour nal of LegalMedicine was one of the publ icatio ns in which t he FBI attempted to legi timate thei r studies on-32-

mtDNA analysis. He testifi ed that he had diffi culty l ocating t he journal and was not able to obta in a co py of the article until the day be fore the trial bec ause only twenty-five libraries in the world su bscribe to the journa l. He s tated, “[i]f you’re going to publi sh something in a peer revi ew journal, it shoul d be a journal that h as wide c irculat ion. The aver age medical journal or the av erage biologi cal journa l, t he ave rage genet ics journal i s fou nd in thou sandsof l ibrari es.” He emphasized that the s cienti fic community cannot evaluate a vali dation st udy that has been published in a journa l which i s not widel y circul ated.
Finally, Shields testif ied that t he sample sizes agai nst which tests were run by the FB I were in adequate and concluded that mtDNA analysi s had not been
a dequ ately tested wi thi n thesci enti fic communi ty to qual ify as re li able . He conclud ed, The so-ca lled valid ation s tudies haven ’t been dis t ributed widely enough, in my opini on, for there to be a, quote, si gnificant number of [scientists w ith significan t e xpertis e who would agree t hat the forens ic use of mitochondrial DNA testing has n ot bee n scien tifically validate d]. I think that the re’s a sm all pool of i ndividual s who even know how mitochondri al DNA is done, and an even sm alle r pool who k now h ow i t’ s presen ted in thecou rt roo m.

Prior to the adopt ion of theTen ness ee Ru les of E videnc e, cou rts in Tennessee generally followed the test whi ch had been set for th in the case of Frye v. UnitedStates , 293 F. 1013 (D.C. Cir. 1923), in an alyzing the adm issibility of scientifi c evidence . The te st set forth in Frye was e ssen tially that s cientific evidence was admissible only if it had “gai ned general acceptance in the particular field in which it belong s.” Id. at 1014.-33- In 1997 the Tennessee Supreme Court hel d that Tennessee’ s adoption of Rules 702 and 703 as part of the Rules o f Ev idence superseded t he general acceptance test set

forth i n Frye
. McDanielv. CSXTransp. Inc. 955 S.W.2d 257, 265 (Tenn . 1997). T ennes see Ru le of Evide nce 70 2, “Testim ony by ex perts,” states, If scient ific, tech nical, or ot her sp ecialize d kno wledg e will subs tantially assist t he trier of fact to unders tand the evidenc e or to determine a fact i n i ssue, a w itness qual ified as an expert by knowledge, skill, exp erienc e, trainin g, or ed ucatio n ma y testify in the form of a n opinion or otherw ise. Tenn. R. Evid. 702. T ennesse e Rule of Evide nce 703, “B ases o f opinio n testimon y by expe rts,” states, The facts or data in the parti cular case upon whi ch an expert base s an opinion or inference may bethose per ceived by or made known to the expert

at or befor

e the hearing. If of

a type reasonably reli ed upon by experts in th e part icular f ield i n forming opi nions or inferences

upon the su bje ct, th e facts or data need not be adm issible in evi dence. T he c our t sh alldis all ow t est imo ny in th e form of an opin ion or infere nce if the u nderlying facts or dat a indicate lack of

trustworthi ness. Tenn. R. Evid. 7 03. As our su prem e cou rt stated in McDaniel , under these rules,
a trial court must determine whet her the eviden ce will su bstan tially assist the trier of

fact to determine a fact in issu e and whether the facts and data underlying the evi dence i ndicate a l ack of trustworthiness. The r ules to gethe r nece ssaril y requ ire a determinati on as to the scie ntific validity or reliab ilityof the evi dence. Simp ly put, unles s the scie ntific eviden ce is valid, it will not substa ntially assist the trier of fact, nor will its underlyi ng facts and data appearto be trust worthy, but

there is no requirement i n the rule that it be ge nerally acc epted. McDaniel , 955 S.W.2d at 265.
Finally, we note that “[i]n gen eral, questions reg arding the adm issibility, qualificat ions, relevancy and competency of ex per t tes timony are l eft to t he discreti on of the trial court . The tri al court’ s ruling in this re gard may only be-34-

overturned if the discretion is arbitrari ly exerci sed or abu sed.” Id. at 263-64 (citi ng State v. Ballard , 855 S.W .2d 557, 562 (Tenn. 199 3)).

We first note that it is somewhat quest ionable whet her the DNA testi mony presented was such as to substantially assist the jury to determinea fact i n issue. We neverthel ess conclude that the trial j udge did notabus e his discre tion in admittingthe results o f the m itocho ndrial D NA te sts into eviden ce. At tria l, Wilson testified that “m itocho ndrial D NA is extens ively stud ied. . . . It’s very well understood and ch aracterize d.” He als o testified tha t mtDN A is “wide ly used” to “identify the remainsof servi cemen that have be en killed in V ietnam or Korea .” This testim ony ind icates that m itocho ndrial D NA analysis also meets the Frye standard of bei ng generally accepted in i ts fiel d.

Howeve r, even assuming that t he DNA evidence was improperly admitted into evidence, we are convinced that the any error c aus ed by admission of the evidence was ha rmless
. See Tenn. R. App. P. 36(b) ; Tenn. R. Cri m. P. 5 2(a). Regardles s of it s accura cy or inacc uracy, W ilson’s testim ony did n ot impa rt a substanti al amount of discer nible i nformation to the jury . Absenta freque ncy rate
or some similar i nterpretation of the test results, the testimony does not provide
a strong b asis for sc ientifi c con clu sion by a l ayperson. The onl y result that an indivi dual untrai ned in the analysi s of DNA could reach af ter heari ng Wilson testify i s thatthe common DNA sequence shared by the hai rs tested a nd the Defe ndan t’s saliva had neve r before been not ed in the 742 i ndividual s that comprised the FBI’s then-current database. Moreover, other sci entific evi dence presented at trial which was m ore clearly interpreted for the jury ( includ ing testim ony by Hopk ins, the hair comparison expert), alt hough also inconclusive,-35-

points to the Defend ant as the don or of the hairs at issue . Thus , base d upo n all circ umstances, we co nclud e that th is issue did no t result in revers ible error.

IV. ADM ISSIBIL ITY OF EVIDE NCE OF SA TAN IC W ORS HIP The Defendant next argue s thatthe tri al court er red by disal lowing evidence that Paul Cru m engaged in Satanic worship . Ini tial ly, we note that t he trialcour t did al low both the State and the defense to introduce a number of examples of Paul Crum ’s artwork. The drawings and pain tings contained images of what ap peared to be sku lls, skeleton s, th e grim reaper, a dagger through a rose into a heart, a severed arm dri pping with blood with a rose fall ing from the fingers of the han d, a burn ing cross , and de mons . Crum denied that any of the pi c tures were Satanic i n nature and off ered alternative ex planations of the meaning of the pict ures. Crum was also questioned about his appearance and dress at t he t ime of the cri me, and Crum admitted to wearing crosses and chains.

Witnesses testif ied out of the presence of t he jury about Crum ’s intere st in Satan ic worship. Nan cy Egeland , whose bro t her is married to C rum’s sister, testif ied thatCrum once told he r that he had s acrifice d a do g bec ause voices told him to do it . She also testifi ed that whil e she and her h usband were visiting Crum ’s sist er one evenin g, the g roup d ecide d to wa tch a vid eo ab out de vil worship. She stated that Crum walked past the room w here they we re watching the video and sai d to his si ster, “ Don’t be showing that to peo ple and discussing me.” S he also testified that on five or six different occasions , she had he ard Crum refer to a pictureof Jesus as “dog”(“God” spell ed backwards). In additi on, she testif ied that Crum told her when the Defendant vomited on the ni ght of the-36-

crime, “it was l ike a cool br eeze, and it

was like a dem on had left [Crum’s] body and entered [the D efendant’s] bod y becau se when [the Defendant ] started puking, it was like . . . somebody was in t here throwi ng it out his mouth.” Fina lly, she testified that C rum’s sis ter had o nce told h er that w hen Crum ’s youngest child was born, “hewas bor n wi th s pin al m eni ngi ti s, a nd .
. . [Cr um] gave Satan his soul so [th e child] wo uldn’t die; and that he had also gave [sic] [ the child’s] soul to Satan . . . and t hat they were supposed to do an exorcism on him and he didn’t want it

done because h e was afraid if he did, then Sata n wo uld take [th e child].”
AmyCook, a fri end of She ila Sanders Ki ng and Carla Sanders who handcrafted leather item s to sell, testified out of the p resenc e of t he j ury that Crum had approached her dur ing the summer of 1994 about making a leathe r bracelet forhim. She test ified t hat he told her he had a ring beari ng the number six and an ankle bra celet bea ring the nu mber s ix. H e wanted a black bracel et also bea ring the num ber six to co mplete the triad. Co ok testified, “I to ok it to
mean it’s

the mark ofthe beast, six-si x-six . . . .” Cook also sta ted tha t Crum told her that “he liste ns to the dev il, [the devil] com es and tells him w hat to do.” According to Cook, Cru m claime d to “go[] by the laws o f Lucifer.”

The Defendant argues t hat he should have been allowed to further exp lore Crum ’s involve men t in Sata nic de vil worshi ping for t he purpose of f urther impeaching Crum ’s credibility and advanc ing the Defen dant’s theory that Crum was the perpetr

ator of t he offense.-37- The Defendant was able to bring to the jury’s atten tion s ubsta ntia l informati on about Crum ’s interest in Satanic wo rs h ip and other q uestio nable character

traits and a ctivities of th e w itness. The admission of addi tional evidence of a similar nature w as largely discretiona ry with the t rial j udge, and the trialjudge’s deci sion concerni ng such matters shoul d not be dist urbed on appeal absent a clear abuse of that dis cretion. From our revi ew of the recor d, we cannot conclude that the trial judge abus ed his discretion b y disal lowi ng such furt her evidence.

V. BI AS BY THE TRI AL COURT The Defendant argues that the trial judg e dem onstra ted bia s aga inst him in favor of

the State i n the presence of the jury . He points t o three b rie f
comm ents made b y t he tria l judge dur ing the trial to support thi s contenti on. Under Ten ness ee law , “[i] t is well -establi shed that a t rial j udge has broad discreti on in control ling thecourse and conduct of t he trial , and that in exercisi ng thatdiscreti on, he or

she must be carefulnot to expr ess any thought

thatmight lead the jury to in fer that the judge i s in favor

of or against the defendan t in a criminal trial.” State v . Cazes , 875 S.W.2d 253, 260 (Tenn. 19 94) (cit ing State
v. Caughron , 855 S.W.2d 526, 536 (Tenn. 199 3)). After a t horough examinati on of the record i n the case su b judice , we are unable to agree that t he trialjudge demonstrated bias against the Defendant. We conclude that thetrialjudge acted appro priately within hi s discret ion. Although we are unab le to fi nd any error on the part of t he trialcourt, i f any erro r was made, we ar e satisfied th at it was harmle ss. See Tenn. R . App. P. 36(b); T enn. R. Crim . P. 52(a).-38- VI. CUMULATIVE ERRORS In his sixth claim of error, the Defendant insists t hat the cumulative effect of errors mad e at the trial level d eprive d him of a fair trial . He argues that “[t] he jury in the instan t case was nev er permitted to hear a plet hora of evidence favora ble to the D efend ant.” V iewin g the record as a whol e, having ev aluated each issue individuall y and collect ively , we conclude t hat the Defendant was not denie d a fair tria l.

VII. SENTENCING Ratherthan recei ving the deat h penalty as requested by t he State, t he Defendant was sentenced to l ife wit hout parole f or the fel ony murder. The tri al court later i mposed concurrent t wenty-five-year sentences for t he rape convictions, to be served consecutively to t he sentence of l ife wit hout parole. The Defendant now challenges t he impositi on of consecutive sentences in hi s case.

When an accused chall enges the lengt h, 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 t he determinati ons made by the tri al court are correct. Tenn. Code Ann. § 4 0-35-40 1(d). This presumption is “condi tioned upon t he affirmative showing in the record t hat the trial court consi dered the sente ncing pri nciples and all relevant facts and circumstanc es.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn . 1991).

In conducting a de novo review of a sentence, t his Court must consider: (a) the evidence, if any, r

eceived at

the tri al leveland the sentenci ng hearing; ( b) the presentence report; (c) the principl es of sentenc ing an d argum ents as to-39-

sentencing alternativ

es; (d) the nature and characterist ics of the cri minal conduct involved; (e) any statutory mitigati ng or enhancement factors; (f) any statement that the de fendant made on his own behalf; and (g) the potenti al or lack o f potentialfor reha bili tation or treatme nt. State v. S mith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987); Tenn. Code Ann. §§ 40-35-102, - 103, -210.

If our revi ew reflect

s that thetrialcourt fol lowed the statutory sentencing procedure, imposed a lawfulsentence after having given due considerat ion and properweight to t he factors and princi pals set out under the sentenci ng law, and thatthe tri al court’ s findi ngs of fact are ade quately suppor ted by the r

ecord, then
we may not m odify t he senten ce even if we would have preferred a dif ferent result. State v. Fletcher , 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

We first find that

the trial judge in t his case conducted on the record an analys is of the enhanci ng and mitigat ing factors and of the p rincipl es of sentencing, thereb y fulfilling h is role in the sentenci ng process. Our standard of review i s thus de novo with a presu mption that the determinat ions of t he trial judge a re correc t.

In ordering cons ecutive sentences, the t rial j udge foun d that two factors under Tennessee Code Annotated § 40-35- 115 applied i n thi s case . He first determined that the Defend an t is a “d angerous offender whose behavior indicated little or no regard for human li fe, and no hesi tation about committing a cri me in which t he risk to human life is high.” Tenn. Co de Ann. § 4 0-35-115(4 ). He also found that

factor (5) applied:-40- The defend ant is con victe d of two(2) or more statutory offenses involv ing sexual abuse of a m inorwith consi deration of the ag gravati ng circumstances arising from the rel ationshi p between the defend a nt and vic tim . . . , the time s pan o f the de fenda nt’s undetected sexual act ivit y, thenature and scope of the sexu al acts a nd t he extent of

the residu al, physi cal and mental damage to the victim . . . . Id. § 40-35-11 4(5). Having carefully reviewed t he record in th is case, w e are do ubtful as to whetherfactor (5 ) is ap plicabl e. We believe that based on the language of the statute, the legislature intended t hat factor (5) should ge nerally

be reserved for
cases involv ing ongoing sex ual abuse . In the case at hand, there apparent ly was
no consequential“time span of the defendant ’s undetected se xual activity.” Based upon the evidence adduced at trial , the acts

which warrant

applicat ion of this factor lik ely occ urred wit hin minutes of one anot her and certai nly could not have been separated by more than an hour or two. There was no evidence of an ongoi ng s exual rel ationshi p between the Defendant and the vic

tim. Therefore, standing alone , the ap plicatio n of fac tor (5) in the pre sent c ase w ould like ly not appea r to justify the im position o f consec utive sente nces.

If th is fa ctor does ap ply, it would seem to justify ordering the two twe ntyfive-yearsentences to be served co nsecutive t o each other, rather t han concurrent

with each ot her but consecut ive to t he sentence for murder . The legislature apparently intended this factor

to authori ze consecutive sentences for multip le chi ld sex cri mes. However, based upon t he facts presented at t rial
conce rning the crime itself, we have n o difficu lty in affirm ing the trial cou rt’s determination that t he Defendant is a “dangerous offender.” Thus, consideri ng32 The legisl ature has pro vided that

a person sentenced to life without parole shall never be eligible to be rele

ased on parole. Tenn. Co de Ann. § 40

-35-501(h)(2). -41- t hat factor (5) was appli ed in conjunct ion with f actor (4) , we conclude t ha t consecutive sentences were statutori ly warranted in thi s case.

We must also, ho weve r, cons id er the man dates of our su preme co urt regarding conse cutive sen tences . Our sup reme c ourt has determ ined th a t “consecuti ve sentences cannot be imposed unless the term s reaso nably rela te to the severi ty of t he offenses committed and are neces sary in order to protect the public from furth er seriou s crimina l conduc t.” State v. Wilkerson , 905 S.W.2d 933, 938 (Ten n. 1995 ). Aspreviously stated, we have reviewed the record and concl ud e that it

supports t he trialcourt’s decision. However, wit h regard to t he factor o f protect ing societ y from furt her criminalacts by theoffender, it may be argued thatthere can be no necessit y to fur ther protect societ

y from an offender sentenced to life imprisonment wi thout parol e, and that consecutive sentencing would therefo re nev er satis fy this crite ria in su ch a ca se. W hil e this argument certain ly bears logic, 32 we observe that our supreme court has d ecli ned to give t he cl aim merit, deny ing permissi on to appeal i n several cas es in which an additiona l se ntence has be en orde red serve d cons ecutive to a senten ce of life imprisonmentwithout pa role. See, e.g. , State v. Robinson , 930 S.W.2d 78, 85 (T enn. Crim. A pp. 199 5), perm. to appeal denied (Tenn . 1996); Sta te v. Leo n B ar nett Collier , No 03C 01-960 2-CR -00072 , 1997 W L 9722 (Tenn . Crim. A pp., Knoxvill e, Jan. 13, 1 997), perm. to appeal denied (Tenn. 199 7); State v. Sam mie Lee Taylor , No. 02C 01-950 1-CR -00029 , 1996 W L 5809 97 (Te nn. Crim. Ap p., Jackson, Oct. 10, 1996), perm. to appeal denied (Tenn. 1997). Furthermore, the supr eme court has uphel d running a sentence consecutiv e t o a sentence of-42-

death. State v. Black , 815 S.W.2d 166, 191 (Tenn. 19 91). Rather t han attempting f urther

analysis , we defer to the guidance of our supreme court and to the discretion of the trial judge and affirm the im position of conse cutive sentences in t his case.

VIII . NEWLY DIS COVERED EVIDE NCE Finally , the Defendant contends that

the tri al court er red by fai ling to declare a mistrialor halt j ury deli berations f or the newly discovered test imony of Donna Pickett. After closing arg uments a nd after the jury r e tired to b egin deliberations, the de fense cam e forth w it h a n ew witne ss, Don na Pick ett. Defense counsel Hank Hil l receiv ed word from his office t hat Pickett had telephoned for the f irst t ime that morni ng. In open c ourt, but ou tside th e presence of the jury, the defense f iled a moti on to hear new evi dence. The tri al court denied the motion, bu t allowed the defe nse to prese rve the new test imony for the r ecord at a l ater date.

On September 12, 1996, Donna Pi ckett te stifi ed for the r ecord out of the presence of the jury

and after co mpletion of the tri al. She expl ained that sh e is the D efend ant’s a unt by m arriag e and that he r husb and is also related to Car la S anders and Sylvia Kaye Dye . Pickett stated that Cru m and C arla Sande rs visited her home on the day following the discovery of the vi ct i m’s body. She testif ied that whil e there, Crum proceeded to tel l her and her hu sband the story of what happened on the ni ght of the victim’ s murder. Accordi ng to Pickett, Crum claimed that after the Defendant went into t he bedroom with t he victi m, he decided to che ck on the victim . Wh en Cr um w as un able to find he r, he began
s earch in g the house for her and for t he Defendant, who had al so disappeared33 Apparently, Sanders was inside his truck parked on the street i n front of 414Stringer

Street. It is unclear from Pickett’s testimony why Sanders was there. -43- from the bed room. C rum to ld Pickett that he the n discovered t he two in th e laundry room and that when he opened t he door to theroom, th e Defe ndant, who
was appa rently passed out, st ill maintained an erection. Crum told her t hat, not knowing what

to do , he t hen wen t outsideand retr ieved Ca r l Sand ers from his truck. 33 Crum claimed that when he and San ders went ba ck inside t he house, Sanders picked up the vict im and carrie d her to a light “to see he r because [they] knew something was wrong. ” Crum said “t hat [Carl Sanders] lookedat the baby and said, Sh e’s dead . He said , This ba by is dead
. . . . He looked up at me and I looked at hi m and I sai d, We’ve g ot to put her back.” They put the child back
as theyfound her. Then, Sanders wentback to his t ruck whil e Crum sat on the porch “to figure out

what [he was] going to do. ” Dye and Gaddis arrived shortly afterwards, Crum went ba ck inside the hou se, and because Crum “didn’t know how to tell [Dye]” about the victim, the three of them “s moked a joint” together before Dye be gan to loo k for her ch ild. Accord ing to Pickett, Crum tol d her , “ [I ’m] sitti ng there wit h her and . . . I’m j ust start ing to fal l to p ie cesthi nki ng, oh, my goodness, this is just unreal . . . .” P ickett explained that she di d not offer her testimony

e arlier because she was not present at t he trialand was unaware of what testimony had been presented. She also stated that her hus band told her to “mind [her] ow n bus iness ” beca use if sh e bec ame in vol ved in th e cas e, his whole fam ily would “hate” her.

We first note that “[t]he decision to gra nt or deny a new trialon the basis of newly discovered evid ence is a matter which rests within the sound discr etion 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 seeki ng a new trialbased on newly dis covered evidence, the defenda nt must firs t estab lish (1) re ason able d iligenc e in attempting t

o discover t he evidence; (2) the ma teriality of the evi dence; and (3) thatthe eviden ce wo uld likely change the re sult of the trial.” Id. (citi ng Goswick , 656 S.W .2d at 358-60 ). Moreover, “[i]t is true that newly d i scovered impeachment evidence wi ll not consti tute grounds f or a new tri al, as a gener al rule. But if t he impeaching evi dence is so cruc ial to the defenda nt’s gu ilt or innocence thatits admissi on will probably result i n an acquittal, a new trial may be ordered .” State v. Singleton , 853 S.W .2d 490, 496 (Tenn. 199 3).

The testimony

by Pick ett in this case is impea chme nt testimo ny offered to contradictCrum’s versi on of the events on the night of the m urder. There fore, to justify ordering a new trial, w e mus t find that t he e vidence is so cruc ial that “its admission will probably result in an ac quittal.” Id. We decline to so find.

The materia lity of the testi m ony is q uestio nable . Althou gh Pic kett’s testimony

does p resent a new vers ion of th e events s urrou nding the victim ’s death, the testimony does not show that

the Defend ant i s any less culp able . To determine that thi s testi mony wou ld l ikely result in an acquittal, we must first accept the testimony as true. We m ust then accept the premise that because Paul Crum lied ab ou t the dis covery of the vict im, he or someone else, perhaps Carl Sande rs, raped and killed th e victim. We find it d iffi cult to accept such a theory. Accep ted as true , this testimony shows that the victi m was moved, not thateviden ce was destroyed or removed, or t hat anyone other than the Defendant committed the crime. We are thu s una ble to a gree th at this evidence-45-

is so crucialthat the t rial j udge erred by notgranting a new trial fo r the Defe ndant. This issu e is therefo re withou t merit.

Accordingly , the judg ment of the t rial cour t is af firmed.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ GARY R. WADE, PRESI DING J UDGE

___________________________________ THOMAS T. WOODALL, J UDGE