# FILED
October 24, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE MAY SESSION,

1997

STATE OF TENN ESSEE, ) ) No. 01C01-9606-CC-00269 Appellee/ ) Cross-Appellant ) ) RUTHERFORD COUNTY vs. ) ) Hon. JAMES K. CLAYTON, JR., Judge PHYLISS ANN

McBRIDE, )

) (First Degree Murder ) Appellant/ ) Cross-Appelle

e )
For the Appellant : For the Appellee : LANCE H. SEL

VA CHARLES W. BU RSON 214 West Main Street Attorney General and Repor ter Murfreesboro, TN 37130 LISA A. NAYLOR Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493
WILLIAM WHITESELL District Attorney General Third Floor Judicial Bui lding Murfreesboro, TN 37130

OPINION FILED: CONVICTION AFFIRMED; REMANDED FOR SENTENC ING MODIFICATION David G. Hay

es Judge1 The seve n out stan ding f elony c onvic tions were com mitte d by th e app ellant over a twe ntymonth period occurr ing after the death of

Bobby McBride, but before t he return of the indi ctment for his murder. 2 OPINION
The app ellant, P hyliss Ann McBride, a ppeals h er convict ion, by a Rutherford County jury , for the first degree murder of her husband, Bobby McBride. The jury fix

ed the appellant's sentence at i mprisonment for life. At a separate sentencing hearing , the trial court ordere d the life sentence to run concurrently with seven prior unserved felony sentences. 1 In this appeal, the appellant contends that (1) the trial court failed to comp ly with the mandatory jury selection procedure set forth in Tenn. R. Crim. P. 24(c); and (2) the trial court improperly restric

ted cross-examination of a St ate's witness. Additi onally, the State cr oss-appeals cha llengi ng the t rial co urt's d ecisio n that th e appell ant's l ife sentence should be served concurrently with her seven felony sentences.
The judgment of conviction is affirmed. Upon de novo review of the record, however, w

e find that consecutive sentenc es are warranted and remand this case to the trial court for entry of an appropriate order.

Background

In November 1989, the vic tim, Bobby McBride, began experiencing vi sion disturbances, shortness of br eath, hallucinations, diz ziness, and sleeplessnes s. As a result of his deterior ating condition, Mr. M cBride was taken to the emergency room where he was treated for "a urinar y tract infection and a thr oat infection." On November 13, 1989,approximately one w eek later, Mr. McBri de was examined by his

family physician, Dr. Polk. Dr. Polk testi fied that, despite a2 The victi m's death certificate i ndicated t he cause of death as " cardiac arr est, cause unkn own." 3 history of high blood pr essure, Mr. McBride's blood pressure was v ery low and he appeared very confused. Moreover, the victim was bloated and had "this gray, ashen look. . . . He was washed dow n in perspiration. . . . His face was discolored. His ey

es looked . . .like they

were ready to pop out. . . ." Because of his condition, Mr. McBride was admitted to the hos pital for further observati on and tests. During the day, Mr. McBride's condi tion continued to deteriorate despite numerous medications and medical proce dures. Later that evening, Mr. McBride died, the cause of death be ing undetermined by the atte nding physicians. 2 Due to the peculiar circumstances and unknown cause of Mr. McBride's death, the attendi ng physicians and the c ounty coroner requested , on several occasions, that an autopsy be performed. How ever, the appellant was opposed, stating that her husba nd would not have want ed an autopsy. Accordingly, no autops y was performed and no further inquiry was made as to the victim's cause of death.
In July 1990, the appellant fil ed a complaint with the Sher iff's Department alleging that her father, Don Tiffin, Sr., had sexually abused her dau ghters. As a result of these allegations , deputies ordered Tiffin out of the appell ant's house. A few days after these allegations were made, Tiffin volunt eered to law enforcement officials that Bobby McBride's body should be ex humed, implicating the appellant in his death. In November 1990, an autopsy w as performed on the victim's body. The autop sy report established the cause of death as "acute and chronic arsenic poisoni ng."

Testimony at trial connecte d the appellant to the murder of her h usband. Don Tiffin, Sr. testified that, pri or to the victim's death,the appellant had inquired3 Tenn. R. Crim. P. 24( c) provides: After twelve pros pec tive ju rors have been pass ed fo r cau se, c oun sel w ill subm it simultaneousl y and in writi ng, to t he trial judge, t he name of any juror either counsel elect

s to chall enge peremptorily. Upon each submissi on each counsel

4 as to the effects of rat poison on a perso n. He further stated that the appel lant received a life insuranc e check in the amount of $43,000, in addition to the victim's retirement benefits of $500.64 per month for the remainder of her life. Kim Bess, one of the appellant's daughters, testif ied that, prior to the victim's death, the appellant had asked her t o put an electrical wi re in the shower with the victim in order to ki ll him because she needed the money . Bess added that, on one occasion, she had observed the appellant "set [a can of drain opener] beside the refrigerator as she fixed [the victim] a glass of tea."
Carol Burgeson, an admitted informant for law enfo rcement agencies, testified that she was acq uainted with the appellant through her management of a children's shop in Smyrna. She recalled that she w as at the hospital on the day the victim wa

s admitted and had spoken with the appellant concerning the victim's condition. The appellant related to her that the victim had "gotten a hold of some bad dope." Burgeson suggested that the po lice be notified, however, the appellant refused explaini ng that the police "woul d find out that he had been given too much cough medic ine," over ten different types . The appellant further stated that "she did not want [the victim] to be all right, that she had given him too much . . . and that she wante d him to die; he was mean and bad, and he had to die." Based upon these facts, the appe llant was convict ed of first degree murder.

I. Jury Selection
The appellant first contends that the jury selection proce dure employed by the trial court violated Tenn. R. Crim. P. 24(c). 3 Both parties agree that the trialsha ll subm it eithe r a ch alleng e or a blank shee t of pa per. N eithe r part y shall ma ke k now n the fact th at the party h as no t cha llenge d. Re plac em ent ju rors will then be ex am ined f or ca use and, after pass ed, c oun sel w ill again subm it simultaneousl y, and i n writi ng, to t he trial judge the name of any juror counsel elects to challenge peremptorily. This procedure will be followed until a full j ury has been selected and accepted by co unsel. per emptory chall enges may be directed to any me mbe r of the jury an d coun sel shall no t be limited to replacement juro rs. Alt ernate jur

ors will be selected i n the same manner. The trial judge wil l keep a li st of those chal lenged and, i f the same juror i s challenged by both par

ties, each will

be charged wit h the chall enge. The tri al judge shal l not disclose to any juror the identity of the party challenging the juror. (Empha sis added).

4 We note that, effect ive July 1, 1997, Rul e 24(c) was amended, dispensi ng with t he requirem ent of "twe lve" prosp ective juro rs. See State v. Anthony , No. 02C01-9605-CC-00159 (Tenn. Crim. App . at Jackson, Mar. 18, 1997). 5 court deviated from the Rule in that thirty-one jurors were selected for voir dire rather than the twelv

e designated by the Rule. 4 The trial court sea ted twelve jurors in the jury box and four jurors in seats that were placed in front of the jury box. The remaining fifteen juro rs were seated along the railing behind the actual trial area. Prior to implementing this procedur e, however, defense counsel and the State met in the judge's chambers and discussed the m echanics of the jury selection process that w ould be utilized by the court. No objection w as made by either the State or the defense as to the proposed method of jury sel ection.
The app ellant as serts tha t defen se counse l examine d only tho se twelve jurors seated in the jury box and the four seated immediately in front of the box. She argues that there was no examination of those seated along the railing. During voir dir

e, defense counsel, recogniz ing his inadvertence,stated: By the way, I d idn't me an to negl ect you, b ut all the question s I've asked, if any of you happen to replace people up here, all those questions will appl

y to you. Following ju ry selectio n, written challenge s were subm itted to t he trial co urt. Two jurors were excused and replaced. However, after exercising the appellant's peremptory challenges, defense counsel asked to appro ach the bench, where the following colloq uy occurred: MR. SELVA: We were under the impression that, real ly, we were

questioning the juror

s, and as they would be replaced, we would be

able to ask specific questions to the jurors that took their seats.5 The record refl ects that of the twel ve jurors sel ected, thr ee were replacement j urors. 6 COURT: I explained that to you this morning, and you've seen us

operate under that procedure. MR. SELVA: Okay. That's fine. MR. SHULMAN: Judge,there's only one question, I think, has not been

asked that I think is import ant. Maybe you could do that. Somebody should have read the list of witnesses, both the State's and the defense, because we don't know whether any of these people are related to the witnesses or hav e any association with them, and I think that's fairly s ignificant. COURT: It's a little bit late to start reasking questions. Written challenges were again submitted. One juror was replaced. Th e court announced that a jury was selected and drew tw

o names for alternate jurors. One of the alternates was ex cused for cause. Another altern ate was selected and the trial proceeded. The appel lant argues that, because she was denied the opportunity to examine any replacement jurors, she w as effectively denied her right to exercise any meaningful or intelli gent challenge. 5 The appellant contends that the trial cour t's non-compliance with Rule 24(c) compromises the integrity of the jury

selection process. She ur ges that we find that " any departure [from] Rule 24 constitutes plain error and [is] prejudicial per se ." The appellant cites no legal authorit

y in support of her argument , as such, we decline th e invitation to so rule and rely instead upon the standard of review announced in previous decisions.
Although the particular p rocedure employed by the trial court deviated from Tenn. R. Crim. P. 24(c), the burden is on the appellant to prove prejudice or purposeful discrimination i n the selection of a jury. State v. Coleman , 865 S.W.2d 455, 458 (Tenn. 1993). Prejudice wil l not be presumed. Id . (citing Swain v. Alabama , 380 U.S. 202, 85 S.Ct. 824 (1965) ). Moreover, wh ile the "adherence to the procedure prescribed by Tenn. R. Crim. P. 24(c) is mandatory," deviation from the rule may qualify as harmless error. See Anthony , No. 02C01-9605-CC-00159.7 The appellant fails to show how she was prejudiced by the procedure employed by the trial court. Equally important, we note that not only did defense counsel not object to the method of jur y selection, but also ag reed to the method of selection prior to voi r dire. See Tenn. R. App. P. 36(a) (A par ty is not entitled to relief if the party inv

ited error, waiv

ed an error, or failed to take whatever steps were reasonably av

ailable to cure an error ). Defense counsel commented that the only question that s hould have been asked was whether any member of the jury knew any of the trial witnesses. Although the appellant alleg es that he was denied the opportunity to question the three replacement jurors, the record indicates that all three j urors were present thr oughout the entire voir

dire. Defense counsel informed all the prospective juror s that the questions applied to them . None of the prospective j urors indicated that they had any problem with the questions posed by either party. According ly, we conclude that absent a showing of prejudice, the deviation from the mandatory procedure of Tenn. R. Crim. P. 24(c) was harmless. This issue is without merit.

II. Cross-Examination of Carol Burgeson
Next, the appellant arg ues that the trial court i mproperly restricte d her cross-examination of State' s witness Carol Bur geson, thereby, vio lating her Sixth Amendment right of confrontation. Spe cifically, the appellant sought to crossexamine this witness

about various criminal charges against her w hich had previously been dismissed by the State. The trial court ruled that defense counsel could ask Burges on about a prior conviction for theft, but could not question the witness about any charges that had bee n dismissed. The appellant contends that Tenn. R. Evid. 616 permits cross-examin ation as to the prior charges to establish the witness's bias in fav or of the State.8 The Confrontation Clause of the Six th Amendment guarantees the rig ht of an accused in a criminal pr osecution to "be confronted with the witnesses against him." Delaware v. Van Arsdall , 475 U.S. 673, 678, 106 S.Ct. 1431, 1435 (1986). However, the right of confrontation "means more than being allowed to confront the witness phys ically." Id . (citation omitted). "[T]he mai n and essential purpose of confrontation is to secure for the opponent the opportunity of crossexamination ." Id . (citations omitted) (internal quotations omitted) (emphasis in original). See also State v. Henning , No. 02C01-9504-CC-00 115 (Tenn. Cr im. App. at Jackson, Jan. 9, 1997). The exposure of a witness's motivation in testifying is a proper

and important function of cross-ex amination. Id . at 678- 679, 106 S.Ct. at 1435. Indeed, althou gh limited to what is actually relevant evidence, an accused has the r ight to explore promisesof leniency made to a prosecution witness or expectations of leniency, both real and i magined, by that same witness to show a motive for testifying falsely for the State. See State v. Smith , 893 S.W.2d 908, 824 (Tenn. 1994); State v. Scott , No. 01C01-9202-CR00053 (Tenn. Crim. App. at Nashv ille, Feb. 11, 1993); Tenn. R. Evid. 616. See also Tenn. R. Evid. 402. How ever, the Confrontation Cl ause does not prevent a trial court from imposing reasonable limits on defense couns el's inquiry int

o the potential bias of a prosecution w itness. Van Arsdall , 475 U.S. at 679, 106 S.Ct. at 1435. The propriety, scope, manner and control of testimony and other evidence, including the scope of cross-examinati on, remains within the s ound discretion of the trial cour t, which will not be reversed absent an abus e of that discretion. See State v. Barnard , 899 S.W.2d 617, 62 4 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1994 ) (citing State v. Banks , 564 S.W.2d 947, 949 (Tenn. 1978); State v. Elrod , 721 S.W.2d 820, 823 (Tenn. Crim. App. 1986)); Tenn. R. Evid. 611(a). Thus, so long as a reasonably complete picture of the witness's verac

ity, bias, and motivation is developed on direc t, the trialcourt enjoys the power and discretion to set reasonable boundaries to crossexamination.9 There is no indication from the r ecord that Burgeson had an inc entive to testify f alsely agai nst the a ppellan t. She was n ot being p aid for h er testim ony, nor did she testify in ex change for immunity or pros ecutorial leniency si nce the proof fails to reveal any charges pending agains t her. Indeed, with the ex ception of one misdemeanor arrest for a worthless check, the charges at issue were dismissed p rior to the

return of the

indictment i n the instant case, and, i n some instances, were dismis sed prior to Bobby McBr ide's murder. Moreove r, the credibility of this w

itness was not vit

al to the State's case as subs tantial circumstantial evidenc

e was elicited from other witnesses. Although the trial court's ru ling was bas ed on Ten n. R. Evid. 608 and 6 09 rathe r than Rul e 616, we cannot conclude that the trial court erred by prohib iting cross-exami nation of Burgeson's previousl

y dismissed charges.We are unable to rationalize how proof of previousl y dismisse d charges would show a ny promises of leniency by the State in exchange for Bur geson's testimony at th e appellant's trial, nor can we conclude that the appella nt expected future leniency from the State ar ising from her testimony in the pres ent case. See People v. Tomes , 672 N.E.2d 289, 293 (Ill. App. 1 Dist. 1996) ("[W]here there is no expectation of lenien cy from the State, the trial court may prohibit cross-exa mination regarding the c harge."); see also 98 C.J.S. Witnesses § 560(h) (1957). Again, evidence of the witness's activity as a paid informant was revealed dur ing direct examinati on. Thus, the jury was presented with the possibility of her bias in favor of the State. The law is well-settled tha

t the credibility of w

itnesses is a jury question. Byrge v. State , 575 S.W.2d 292 (Tenn. Crim. App. 1978). This issu e is without merit.

III. Sentencing
The State cross-appeals, chall enging the trial cour t's order that the appellant's life sentence is to be served concurrentl y with seven outs

tanding6 Tenn. Code A nn. § 40-35-402(c) grants the reviewing court the authority to "affirm, vacate, set aside, increase or reduce the sentenc e imposed or rem and the case or direct the entry of an ap propriate order." 10 felony sentences. See Tenn. Code Ann. § 40-35-115 (1990).In support of its position, the State contends that the appellant (a) is a profess ional criminal, (b) has an extensive histo ry of criminal activ ity, and (c) is a dangerous offender. Tenn.Code Ann. §§ 40-35-115(b)(1) , (b)(2), and (b)(4) . After review of this issue, we agree that the appella nt has an extensive his tory of criminal activ

ity and that consecutive sentences are warranted in this cas

e. 6

When the State challen ges the sentence imposed by the trial court, this court conducts a de novo review with a presumption that the determinati ons made by the trial court ar e correct. Tenn. Code Ann. § 40- 35-402(d) (1990). However, this presumption is only applied if there is an "affirmative showing in the record that the trial court considered relevant sentencing principles and all relevant facts and circums tances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The record before this cour t is absent such a showi ng, thus, the presumption does not apply. However, the party challenging the sentence, in this case the State, bears the burden of pr oving the impropriety

of said sentence. Sentencing Commission Comments,Tenn. Code Ann. § 40-35-402.
Tenn. Code Ann. § 40-35-115 sets forth classif ications under which consecutive sen tencing may be imposed. But see Tenn. R. Crim. P. 32 (mandatory consecutiv e sentences). If one of these classi fications is not met, the court must order the sentenc es to run concurrently . However, a finding by the trial court that one of these factors exists is not al one sufficient to justify the imposition of consecutive s entences. "The proof must also establi sh that the terms imposed are reasonably related to the severity of the offenses committed and are necessary in order to protect the public from further c riminal acts by the offender ." State v. Wilkerson , 905 S.W.2d 933, 938 (Tenn. 1995).7 The presentence report revealed t hat the appel lant has seve n felony convicti ons for which she is ser

ving an effective sent ence of fourteen years i n the Tennessee Department of Correction; all of these offenses occurred after Bob by McBride's death. These co nvictions involve arson; insur

ance fraud over $6 0,000; i nsurance fraud over $1,000; t hree counts of t heft over $1,000; and passi ng a worthle ss check over $1,000. The record indi cates misdemeanor convictions for passing a worthless check ; three traffic offenses; and theft under $500. Moreover, the appell ant was charged wi th the fol lowing cr imes: theft of two tel ephones from K-Mart; t heft of a Black Angus b ull calf; sale of an untested cow; and trading livestock without a license; however, these c harges were su bsequ ently dism issed. 11 Notwithstanding proof of thes e three criterion, a senten cing court retains the discretion of imposing cons ecutive sentences. On appeal , the exercise of the trial court's discr

etion is afforded great wei ght, provided the court correctly applied the principles of cons ecutive sentencing.
Upon de novo

review, we c

onclude that the State's argu ment has merit. The appellant's prior recor d includes seven felony c onvictions and numerous misdemeanor convictions. 7 This is more than sufficient to es tablish that the appellant has an extensiv e history of criminal ac

tivity. See Tenn. Code Ann. § 40-35-115(b)(2). More over, we find that the appel lant committed the instant offense while on probation f rom a June 30, 1 989, conviction for passing a worthless check. Tenn. C ode Ann. § 40-35-115(b)(6); see also State v. Franklin , No. 01C01-9405-CC-00172 ( Tenn. Crim. App. at Nashvi lle, Oct. 31, 1995). While a statutory classification f or imposition of consecutive sentences is present, consecutive sentences should not be imposed unless such a sentence would reasonably rel ate to the severity of the offense and are necessary to protect the public from further c riminal acts by the appel lant. Wilkerson , 905 S.W.2d at 938. In addition to her convicti on for the premeditated murder of her husband, the appellant has burned her house, and has committed numerous offenses of insurance fraud, theft, and passing worthless checks. We find that the aggregate sentences are reasonably related t o the severity of the offenses and that an extended sentence is necessary to protect the public from further criminal acts of the appellant.Thus, we conclude that cons ecutive sentences are warranted in the pr esent case.12 The judg ment of co nvicti on is affi rmed. Th e appell ant's sentence of life imprisonment is ordered to r un consecutively to he r effective sentence of fourteen years stemming from her seven felony convictions. This case is remanded

to the tr ial cou rt for entry of a n order reflect ing a se ntence o f life imprisonment plus fourteen years.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

________________________________ PAUL G. SUMMERS, Ju dge

________________________________ JERRY L. SMITH, Jud ge