# FILED
December 10, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE FEBRUARY 1997 SESSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9603-CC-00134

) ) Blount County v. ) ) Honorable D. Kelly Thomas , Jr., Judge ) JUAN PEREZ, ) (Second degree murder) ) Appellant. ) For the Appellant : For the Appellee : Robert M. Cohen Charles W. Burson 303 High Street Attorney General of Tennessee Maryville, TN 378

04 and Timothy F. Behan Assistant Attorney Gener al of Tennessee 450 James Robertson Parkwa y Nashville, TN 37243-0493 Michael L. Flynn District Attorney General and Edward P. Bailey, Jr. Assistant District A

ttorney General 363 High Street Maryville, TN 378

04

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The defendant, Juan Perez, appeals as o f right from his convict ion following a jury trial in the Blount County Circuit Court for seco nd degree murder, a Class A felony. As a Rang e I, standard offender, the defendant was s entenced to twenty-two y

ears in the custody of the De partment of Correction, and he w as fined twenty-five thousand dollars. On appeal, the defendant co ntends that:

(1) the evidence is i nsufficient to support his conv iction; (2) the trial court erred by denying his motion to suppress the defendant’s statement he gave to pol ice; (3) the trial court erred b y allowing the s

tate to i ntro duce two photographs

of the victi m; (4) the trial court erred b y refusing to allow the testimony of Barry Rice, a defense witness; (5) the trial court erred b y refusing to grant

a new trial because the defendant was unfairly prej udiced during his crossexamination by the state; (6) the trial court erred b y refusing to grant a new trial based on newly discover

ed evidence; and (7) the trial court erred b ya pplying enhancement factors an d bynot sentencing the defendant to a sent ence within the lowe r part of Range I. We affirm the judgment of conviction.

On March 19, 1994, Grant Spir es, Gayann Tucker and Eliz abeth Lee discovered Kimberly

Bauer, the estranged gir lfriend of the defendant, lying on her side in the living room of her home. She had suffered num erous stab wounds to the chest and the upper left side of h er body. The victim died later as a res ult of the stab bing.

Melissa Henry, a fri end of the victim, testified that around 7:00 p.m. on the evening of the offense, she called the victim at Krysta l Restaurant where the v ictim was working, and they planned to meet at 8:30 p.m. She stated th at she drove by the3

victim’s house without stopping at about 7:30 p.m., an d she saw the defendant’s latemodel Camaro parked at the vi ctim’s house. She said that s he returned around 8:30 or 8:45 p.m. and saw police car s and an ambulance. On cross-e xamination, she denied that she told anyone that she s aw a dark-colored car

or an Impala. She also denied telling Officer Lowell Ridings that she had seen the defendant wear a knife on his belt on earlier occasions.

Sharon Fields, an assistant manager at Krystal R

estaurant, testified that the victim logged out

at 7:13 p.m. She stated that she saw the victim leave w

ork at about 7:15 p.m. Audie Hollow ay, a coworker of the v ictim, testified that she w orked with the victim on the night of the offense. She said that the victi m received two or thr ee telephone calls, one around 2:00 or 3:00 p.m. an d the others shortly before the victim left work. She stated that t wo calls were from an

unidentified man. She testified that the victim was v

ery upset when she tal ked to the man and appeared to be in a hur ry to leave. She stated that the v ictim left the restaurant at about 7:15 p.m., appearing distracted . Another co worker te

stified that the victi m received a call arou nd lunchtime from an unidentified man, and she said that the victim spoke ver y fast on the telephone.

The victim’s mother testified that the victim called her at about 7:30 p.m. Thelma Marti n, the vict im’s neigh bor, testifi ed that she sa w the vic tim come home around 7:30 p.m. She said that the defendant drove up shortly afterw ards and parked his car in the road. She s tated that she recognized the defendant’s car because of its loud muffler and its multi-color ed paint. She said that she saw the defendant get out of the car. She testified that the defendant left about ten minutes later, sq uealing the tires as he left. Ms. Martin testified that she was not aware of anyone being at the victim’s house before the defendant arrived. On cross-examination, Ms. Martin stated that it was not uncommon for the defendant to be at t he victim’s house.4 Morris Keaton, a neighbor of the victim, testified that he saw a black car arrive at the vic

tim’s house before the victi m came home around 7:30 p.m. He said that he heard two women’s v oices. He stated that after the black car left, the vic tim arrived, and the defendant arrived shortly afterwards. He said that after abo ut fifteen minutes, the defendant drove away q uickly. On cross-examination, Mr. Keaton admit ted that he was unsure whether the black car arrived before or after the victim came home. He stated that the defendant arrived after the black car.

Gayann Tucker, a friend of the v ictim and an acquaintance of the defendant, testified that the victi m had stopped dating the defendant and had beg un dating Grant Spires. She said that two days before the offense, while she, Spires, and Elizabeth Lee were at the victim’s house, the defendant arrived unexpectedl

y in his car. Ms. Tucker stated that tw o weeks earlier, she had told the defendant that Spires w as her boyfriend in order to avoid any conflict w ith the defendant. She testified that the defendant put his arm around her, told her that he knew that the v ictim was dating Spires, and threatened to kil l the victim if she conti nued to see him. She believed that the defendant was serious.

Tucker, Spires and Lee testified that they planned to meet the v ictim after she came home from work. They said that the victim had told them no t to come until 8:00 p.m. because the victim was going to have the defendant over to her house to ta lk to him. Lee an d Spires tes tified that t hey drove

by the vi ctim’s house around 7:40 p.m. and saw the defendant’s car parked at the house. Th ey arrived at the victim’s house around 8:05 or 8:15 p.m. They stat ed that the victim’s car

was the only one in the driveway. Tucker

knocked on the door, and the door o pened, revealing the v ictim lying in a fetal position on her left si de in the living ro om with her head slightly under the coffee table. A lot of blood surrounded th e victim. Tucker call ed 9-1-1. Following the 9-1-1 operator’s instr

uctions, Spires turned the v ictim over, removed he r shirt and bra,5

and began performing CPR. Sp ires said that the vic tim was bleeding sli ghtly and had a faint pulse.
Officer Larry Kauker of the Al coa Police Department testified that the victim was dead w

hen he arrived and that Gra nt Spires was standing near the door of the victim’s house. Ser geant Dale Boring of the Al coa Police Department testified that he found the victim lying on her back with her shirt torn open and her bra cut. He said that the victim had numerous stab wounds to the chest area, and h e stated that there was no sign of a strug gle. He stated that a coupl e of butcher knives wer e found in the kitchen area, but none of the kniv es appeared to have blood on them. Sergeant Boring testified that he later went to the defendant’s house, but the defendant w as not at home. He said that he then obtained a search warrant to search the de fendant’s house. He stated that a search of the house did not reveal any evidence. Sergeant Boring testified that he lat er learned that the defendant had surr endered to the police, and he met Detective Ridi ngs to conduct an interv iew of the defendant. He stated that the defendant gave inconsistent statements, first telling them that he had visited the victim and that she was alive when he left and then telling them that he disco vered the victim injured w

hen he arrived.
Gary Hamilton, a crime scene technician for the Blount County Sheriff ’s Department, testified that the only identifiable prints he found at the victim’s house were from the victim and Gayann Tucker. He said that there were no signs of a struggle. He stated that an examination of the victim’s hands did not reveal any hair or skin underneath her nails. He tes tified that he examined the defendant’s car but found no blood, knives, or bloody clothing inside the car. He said that he did not use L uminol to detect the presence of blood because it destroys othe r potential evidence. On crossexamination, he stated that an ex amination of the defendant’s hands revea led no cuts. He conced ed that gi ven the na ture of t he crime, it was proba ble that blood wou ld have6

been on the perpetrator’s shoes , clothing or hands. He acknowledged that it w as possible to send parts of the car to the Tennessee Bureau of Investigation Crime Lab in Nashville for a more thor ough examination.
Dr. William Elliot, a pathologis t, testified that he conducted an autops y of the victim. He stated th at the victim suffered multiple stab wounds measuring bet ween six and eight inches in depth. He stated that elev en stab wounds were to the left side of the breast and extended from above the breast to the rib area. Dr. Elliot testified that the victim also suffered tw elve stab wounds to the left side extending from the l ower part of the shoulder blade to the hip. The victim had f ive stab wounds to the left arm along with f our supe rficial wo unds. Dr. Elliot sta ted that the victim also had d efensive wounds on her hands. He sai d that the victim could hav e died as a result of one stab wound to a large vei n in the neck and another that sev ered the covering of the hear t. He stated that the victi m’s death could also have been caused by three stab wo unds that perforated the victim’s lung, causing the col lapse of the lung. He believ ed that the victim was co nscious d uring mos t of the a ttack, st ating tha t the woun ds would no t have caused a rapid death. Dr. El liot testified that the woun ds would have been painful. On cross-examination, Dr. Elliot testified that it was possible but not likely to feel a pulse forty-five to fifty minutes after the stabbing. He said that the victim most likely died as a result of the cut vein but that the other wounds were potentially fatal.

Agent Samera Zavaro of the Tenness ee Bureau of Investigation t estified that he tested a towel found in th e victim’s bathroom for the presence of blood and found none. He said that he also found no blood on the knives taken from the victim’s kitchen. He stated that sw abbings of the defendant’s car show ed no presence of blood or human tissue. He testified that he also found no blood on the defendant’s clothing. Agent Zavaro testified th at a washcloth taken from the v ictim’s sink reveal ed the presence of blood. On cross-ex amination, he testified that the Tenness ee Bureau of7

Investigation could ex

amine an entire car, a preferr ed procedure, although it w as not uncommon to use swabbings.

Margaret Bash, a forensic scientist for the Tennessee Burea u of Investigation, testified that DNA testing of the w ashcloth containing blood w as unsuccessful in determining the source of the blood. She said that testing of the victim’s clothing r

eflected that the blood came from a singl e source, th e victim.
Kenneth McKee testified that he was in jail in 1994 and that he was a cellmate of the defendant. He said that a few days after the defendant arri ved, the defendant talked to him a couple of times about the offense. He said that the defendant told him contradictory statements regarding when he arrived at the victim’s house, initially stat ing that he arrived be tween 7:05 and 7:15 p.m. and later stating that he arrived at 8:00 p.m. M cKee testified that the defendant told hi m that he and the victim argued over

a truck that belonged to the victim’s parents becaus e the defendant had wrecked the truck and the victim’s parents were being sued. The defendant sa id that he had been drinking earl ier and had planned to go to a bar. McKee stated that the defendant told him that he had blacked out during the argument and that the next thing he remembered was standing over the victim’s body which was curled in a fetal position. The defendant said that he touc hed the victim’s hair and forehead. The defendant also told McKee that he became scared, went to the bathroom to urinate, and then left in his car. The defendant tol d McKee that he surrendered to the police the next day because he believed that it would look less suspicious.

On cross-examination, McKee admitted that he was allowed work release and was sent for drug and al cohol treatment, but he denied that the release was related to giving information to the police. He also admitted that he did not report ba ck to jail when released, resulti ng in felony escape charg es. He denied that the felony es cape8

charges were dismissed because he agreed to testify against the defendan t. He said that the charges were dismissed because he entered g uilty pleas to four counts of violating the Habitu al Motor Vehicle Offender statute.He said that he was not promised anything in exchang e for his testimony agains t the defendant. Another prisoner w ho was incarcerated with the defendant testified similarly regarding the defendan t’s statements about the offense.

Officer Lowell Riding s testified that he went to th e victim’s house at about 8:45 or 9:00 p.m. He stated that he took three kitchen utilit y knives located near

the kitchen sink. He testifie d that dirty dishes w

ere in the sink but that he di d not see any blood. He said that he interviewed Gayann Tucker, Elizabeth Lee and Grant Spires, and based on the information he receiv ed, he looked for the defendant at his home. Officer Ridings testified tha t he obtained an arrest war rant for the defendant, but he learned the following day that the defendant had surrendered to th e police. He stated that he interviewed the defendant and tape-recorded the ques tioning, which las

ted about one hour and fifty minutes.

A redacted tape of the intervi ew was played for the jury. The defendant initially told poli ce that he arrived at the victim’s house at about 7:4 0 p.m. The defendant said that he and the victim talked and smoked a marijuana cigarette. He stated that he left after about ten or fifteen mi nutes and that the victim w as alive and well when he left. He

said that he went to the hous e of Frank Courier, his fri end and coworker, after leaving the victim’s house. After further questioning, the defenda nt told the police that when he arrived at the victim’s house, he found the victim injured. He said that he had lied about talk ing to the victim and s moking a marijuana cigar ette with her.9 Officer Ridings testified tha t he drove from the defendant’s house t o the victim’s house and stated that it took eighteen minutes and fifty-seven seconds dri ving about fifty-five miles per ho ur in normal traffic. He sai d that it took around ten minutes to drive from the victi m’s house to the house of Frank Cour ier. On cross-exami nation, Officer Ridings testified tha t a thermometer was placed und er the armpit of the victim at about 9:00 or 9:10 p.m, reveali ng a temperature of 98.8. He conce ded that he did not order the defendant’s car to be sent to the crime lab in Nashv ille, explaining that no bloody footprints were found inside the car. He also admitted that he chose not to use other investigativ

e means to determine the presence of blo od. He said that when he interviewed Meli ssa Henry, she told hi m that the defendant wore a knife on his belt on several occasions.

Frank Courier, a cow

orker and friend of the defendant, testified that he had never seen the defendant wear a knife on his belt. He stated that their job requir

ed them to cut wrapping off pallet s. He said that they g enerally used a paring knife with a two and one-half inch blade. H e stated that the victim ca lled the defendant at work and that he had never heard the defendant s ay anything mean to the v ictim. Mr. Courier testified that on the night of the off ense, the defendant arrived unexpectedly at his house at about 8:30 or 8:45 p.m. and stayed the n ight. He said that the defendant did not have blood on his clothi ng. On cross-examina tion, Mr. Courier conc

eded that it was unusual for the defendant to spend the nig ht. He stated that he had not seen the defendant earlier in the day. He said that the defendant did not appear to have been drinking and that the defendant w as not nervous, upset or c rying. Mr. Cour ier testified that the defendant did not mention the vi ctim.

Other coworkers of the defendant testified tha t the defendant ordinarily wore jogging pa nts and that when the defendant wo re jeans, he did not wear a belt. They said that th e defendan t never carried a kni fe with him at work, u sually borrowing a10

paring knife from someone else. The c oworkers stated that they saw the defendant and the victim together during the week before the o ffense and on other occasions, and they appeared to be in lov e. One coworker stated that the defendant was a strong
man.
The defendant testified that most people call ed him John. He stated that he met the victim in Wichita, Kansas, i n 1989. He said that he and the v ictim lived together periodically

at different locations. He test ified that after the victim’s parents moved to Maryvil le, he and the victim mov ed to the area and rented a house tog ether. The defendant stated that around Thanksgiv ing in 1993, the victi m moved out of the house and moved to her parents’ house. He said that about two or three weeks later, the victim came by his

house and gave him her new address and telephone number. He stated that he occasionally spent the night with the victim, and the victim occasionally spent the night with him. He said he considered the victim to be his girlfriend.
The defendant testified that he had a torn g roin muscle at the time of the offense. He said that around 5:30 p.m. on t he day of the offense, he called the v ictim at work regarding money he owed her, and they planned to meet at the victim’s house around 8:00 p.m. He said the v ictim told him that she had plan s with Grant Spires and some other friends later that ev ening. He stated that he left hi s house at about 7:25 or 7:30 p.m., arriving at

the victim’s house arou nd 7:40 or 7:45 p.m. He testified that the door to the victim’s hous e was partly open. The de fendant said that he walked ins ide and that the house was not well lit except for a light in the bedroom and bathroom. He stated that he went to the v ictim’s bedroom and bathroom to l ook for the victim. The defendant testified that when he returned to the living room, he discovered the victim lying on her side i n a fetal position in a pool of blood. He said the victim w as underneath the coffee table. He testif ied that the victim was no longer bleeding. He11

stated he went to the bathroom and urinated and vomited . He said he rubbed his hands over the victi m’s forehead and across her hair, but the victim did not r espond. He said he then sat on the couch a nd cried for a couple of minutes. The defendant testified that he stayed about ten minutes before leaving the house.
The defendant testified that after leaving the victim’s house, he s topped at a gas station, purchased g as and a drink, and then started to call for help but could not because he was very

weak. He stated that ins tead, he went to Frank Cour ier’s house, arriving around 8:30 p.m., and stayed the night. He said that his mental condition was not good and that he was not hi mself, but he conceded that he did not tel l Courier or Tim Vann, who was at Cour ier’s house, about what he had found. The defendant testified that he went home around 8:00 or 8:30 p.m. and found a search w arrant and a note stating that the police wanted to interview him about the victim’s death. He said that he called the police and w as then taken to the jail for an i nterview. He ex plained that he gave two different v ersions of the facts to the police because he was scared and not involved in the murder.

The defendant denied stabbing and kill ing the victim. He conceded that he did not try to take the victim’s pulse or determine the nature of her injuries. He also admitted that he did not call 9- 1-1 or ask a neighbor for he lp, explaining that he was afraid. He said that he held hi s hand over the victi m’s mouth and nose but did not feel any air. He stated that he also did not see the vic tim’s chest move.
On cross-examination, the defendant testified that during the interview with police, he made up a story, but he denied lying about not killing the victim. He said he lied when he told Detec tive Ridings that he

had talked to the victim for about fifteen minutes and had smoked a marijuana cigarette with her. He conceded th at he had told the police that he was tel ling the truth. He admitt ed that he had never stayed overnight12

at Courier’s house before, although he had stayed late. The d efendant testified that he was about six feet th ree inche s tall and weighed ab out two hu ndred an d forty-f ive pounds, and the victim w as about five feet three inches and weighed about one hundred and thirty-five

pounds.
William Boddy, a private investigator, testified that he inte rviewed Morris Keaton regarding the tw o vehicles he observ

ed at the victim’s house. He said that Keaton told him that he saw a bl ack car appearing to be a F irebird or a Camaro and that two people were in the car because he heard two car doors shut. Keaton told him that the black car stayed about ten minutes. Mr. Boddy testified that Keaton said that the second vehicle was a black Jeep Cherokee or Br onco.

I. SUFFICIENCY OF THE EVIDENCE The defendant contends that the evidence is insufficient to support his conviction for second degree murder. He argues that the state failed to prove his guilt beyond a reasonable doubt because it did not introduce any physical evidence directly linking the defendant to the murder. The defendant asserts that giv en the discrepancies in the rec ord and the defendant’s testimony, the evidence is insufficient. The defendant also contends tha t there is no proof that the killing was done knowingly as required by T.C.A. § 39-13-210(a)(1). The state responds that the def endant’s guilt was proven beyond a r easonable doubt. We agree.

Our standard of review when the sufficiency of the ev idence is questioned on appeal is "whether, after v iewing the evidenc

e in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements o f the crime beyond a reasonable doubt ." Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that w e do not reweigh the ev idence, but presume that the jury has resolv

ed all conflicts in the test imony and drawn all r easonable inferences13

from the evidence in favor of the s tate. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage , 571 S.W.2d 832, 83 5 (Tenn. 1978).

For circumstantial ev

idence to constitute the sole basis for a conviction, the facts must be “so closely interwoven and connect ed that the finger of guilt i s pointed unerringly at the defendant and the defend ant alone.” State v. Crawford , 225 Tenn. 478, 484, 470 S.W.2d 610, 613 (1971). The evidence must be both consistent with th e defendant’s guilt and inconsis tent with the defendant’s innoce nce, exclude all other reasonable theories except that of guilt, and establish the defendant’s guilt so as to convince the mind beyond a reasonable doubt that he or she co mmitted the crime. Patterson v. State , 4 Tenn. Crim. App. 657, 661, 475 S.W .2d 201, 203 (1971).

In the light most favorabl e to the state, the evidence s hows that the defendant called the victim at work on the day of the offense. The v ictim was upset after receiving the phone calls. At about 7:15 p.m., the v ictim left work hurri edly. Shortly after the vic

tim arrived at her home at 7:30 p.m., the defendant arrived. About ten minutes later, the defendant sped aw ay from the house. Shortly after 8:00 p.m., the victim was found near death by her friends. Two day s before the killing, the d efendant told Gayann Tucker that he knew the victim was dati ng Grant Spires and threat ened to kill the victim if sh e continued to date him. The defendant told t wo of his cellmates that on the night of the offense, he had gone to th e victim’s house. He d efendant admitted that he argued with the victim regarding a truck the defendant had wrecked, and he said that he blacked out during th e argument and was standing over the victim’s

body when he became conscious. We believe that this evidence satisfies the requirements for guilt based solely on circums tantial evidence. A rat ional juror could find the defendant guilty of second degree murder beyond a reasonable doubt.

II. DENIAL OF

MOTION TO SUPPRESS14 The defendant asserts that the trial court erred by denyi ng his motion to suppress the state ment he ga ve to polic e. He argue s that the stateme nt should have been suppressed as the fruit of an il legal arrest because ( 1) the arrest warra nt was issued without the req uisite determination of probable cause by the issuing mag istrate and (2) the arrest war

rant was issued for a per son other than the defendant. The state responds that the trial cour t properly denied the motio n to suppress. We agree.
At the suppression hearing, the defendant testif ied that he occasionally signs his name “John Perez .” The defendant identified his birth certificate reflecting that he was born on October 9, 1962. He said that on Marc h 19, 1994, he returned home and discovered a war rant pinned to the door stating that the police had searched his home and wanted the defendant to cont act them to answer a few q uestions. The defendant testified that he went to a gas station an d called the police to come and take him for questioning. He s aid he was arrested w

hen the police arrived a nd was taken to the county jail about 8:30 or 9:00 a.m. The defendant was then questioned at the police station around 3:00 p.m. for about an hour or an hour and a half. He said he was not shown a copy of the w arrant until about ten days later. The defendant testified that he had never used the aliases “Johnny Victor Perez” or “Johnny V. Perez.”

Officer Lowell Riding s testified that he obtained the ar rest warrant for the defendant. The affidavit of complaint and the ar rest warrant reflect that the name of the person to be arrested for cri minal homicide of the victim is “Johnny Vicktor Perez AKA: JUAN PEREZ.” The words “ AKA : JUAN PEREZ” also appear beside the reference to “Johnny Vicktor Perez

” on the back side of the war rant. The back side of the war rant reflect s that “Jo hnny Vickt or Perez AKA : JUAN PERE Z” lived at “ 2204 San derson, Ave Knoxville - Tenn.” Below the address is a b lank for the driver’s license number and the date of birth of the person for whi ch the arrest warrant was issued. The back si de of the warrant shows that each of the blanks were fil led in, then marked out, and the15

driver’s license number “79474258" and the birthday “10/9/62" was writt en above the marked out numbers. A copy of the defendant’s driver’s li cense reflects that the name, address, and driver’s license number provided on the back side of the warrant were those of the defendant. A copy of Joh nny Vicktor Perez’s driver’s license was also introduced, reflecting a di fferent driver’s licens

e number, different birth date, and the Knoxville address.

Officer Ridings testified tha t he initially fille

d out the warrant betw

een 12:00 and 2:00 a.m. believing that the defendant used the name Johnny Per ez with
severa l middl e names a nd initi als, in cluding “Vickt or,” “Salazar ,” and “ N,” as a result of a criminal history check on the defendant and a check of a m otor vehicle accident in which the defendant was inv olved. He stated that he l ater learned after talking to witnesses and checking the defendant’s driver’s license through NCIC records that the defendant’s name was Juan Perez with a date of birth of October 9, 1962. Officer Ridings testified that some people called the defendant “John Per ez” or “Johnny Per

ez,” given the fact that Juan is Spanish for John. He stated that after learning that he had written the wrong

name and birthday on the wa rrant, he marked out the birthday and wrote in “October 9, 1962" and wrote in “AKA JU AN PEREZ” beside each refere nce to “Johnny Vicktor Perez.” He stated that he made all of the corrections personally before the warrant was issue d by Judicial Comm issioner George Al lison. Office r Ridings testified that he swore to the correctness of the information c ontained in the affidavit. He said that he also ver bally identified the witnesses that were inte rviewed pursuant to the investigation.

Officer Ridings testified tha t he was not sure whether he had both the defendant’s driver’s li cense and Johnny Vicktor Perez’s address at the ti me he filled out the warrant. He could not explain why he did not redraft the warrant deleting the references to Johnny Vickto r Perez. On cross-examination, Officer Ridings admitted16

that some of the officers may have l ooked for the defendant at the Knoxvi lle address. He denied making any chang es after the warrant w as issued. He said that the warrant was intended for the defendant who was the boyfriend of the v ictim and had a birthday of October 9, 1962.

Judicial Commissioner Geo rge Allison testified th at when he initially read the warrant, Officer Ridi ngs had not signed the affidavi t of complaint because Officer Ridings w

as still i nvestiga

ting the fact

s. He said that Officer Ri dings made s ome changes to the warrant before he read it over a seco nd time. He stated that Officer Ridings swore to the affidavit of complaint. He beli eved that Officer Ridings explained the circumstances surroundi ng the allegations. Jud icial Commissioner All ison did not remember if Officer Ridings named the witnesses interv iewed, but he said that he normally asked questi ons before signing an arr est warrant. Judici al Commissioner Allison said that Officer Ri dings made the changes before he i ssued the arrest warr ant. He believed the warr

ant was sufficient.

Officer Scott Johnson of the Blount Count y Sheriff’s Department testified that he arrested the defendant at the g as station. He said that the arrest warrant w as at the county jail when he arrived. He stated that he did not remember if any chang es had been made to the arrest warr ant when he filled out the officer’ s return portion of the arrest warrant. Tony Rayburn, a correctional officer for the Blount County Sheriff ’s Department, testified that he saw the arrest warrant at

the county jail. He s

aid that the defendant told him that his middle name w as not Vicktor.
At the conclusion of the hearing, the trial court denied the def endant’s motion to suppress based upon the al leged defects in the arrest warrant. It held that the corrections on the arr est warrant were made before the warrant was issued. It found that the warrant for “Johnny Vicktor Perez AKA JU AN PEREZ” referred to the17

defendant because the driver’s license number and birthday were that of the defendant. The trial court determined that the defend ant was not arrested based on an arrest warrant issued for another person. The court also denied the defendant’s motion to suppress on grounds that the arrest warrant was not issued based upon probable cause. It concluded that the ju dicial commissioner did n ot rely solely upon the conclusions of Officer Riding s. It stated that although th e proof was not clear reg arding the questions asked of Officer Ri dings relative to the witnesses, the affidavit of complaint set forth that independent w itnesses placed the defendant at the s cene and one witness heard the defendant thr eaten to kill the victim. It also found that the names of the witnesses were o rally revealed to the judicial commissioner

.

A trial court's factual findi ngs on a motion to suppress ar e conclusive on appeal unless the evidence pr eponderates against them. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996); State v. Jones , 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). The application of the law to the facts as determined by the tr ial court is a questi on of law which is r

eviewed de novo on appeal. State v. Yeargan , 958 S.W.2d 626, 629 (Tenn. 1997).

First, the defendant argues tha t the arrest warrant was not based upon probable cause, and therefore, the s tatement he gave followin g his arrest should be suppressed as fruit of an illegal arrest. He argues that the affidavit of complaint w as based upon hearsay and did not pr ovide the basis for the cr edibility of the informant who gave the information used for the arrest warrant as required by the Advisory Committee Comments to Rule 3, Tenn. R. Crim. P. He also asserts tha t the trial court did not properly exami ne Officer Ridings under oath to determine the reliability of the hearsay evidence gi

ven by the informant.
Rule 4(a), Tenn. R. Crim. P., provides in perti nent part:18 ISSUA NCE

. I f it appears from the affidavit of complaint or supporti ng aff idavits filed with the affidavit of complaint that there is p robable cause to believe that an offense has been committed and that the defendant has committed it, a war rant forthe arrest of the defendant shall be issue d by the magistrateor clerk to

any officer authorized by law to execute it

. . . . Before ruling on a req uest for a warrant, the magist rate orcler k may examine under oath the complainant and a n y witnesses the complainant may produce. Probable cause must be “based upon evidence, which may be hearsay in whole or in part provided there is a substantial basis for beli eving the source of the hear say to be credible and for believing that there is a factual basis for the inf ormation furnished.” Tenn. R. Crim. P. 4(b). The pr obable cause determination for Rul e 4(b) is the same as that necessary for a determination that probable cause exists for a warrantless arrest and for a search warrant. State v. T ays , 836 S.W.2d 596, 600 (Tenn. Crim. App. 1992). The probable cause requirement under Rule 4(b) essential ly encompasses the AguilarSpinelli two-pronged test adopted by our supreme court in State v. Jacumin

. Id

.

Initially, we addr

ess the defendant’s contention that the affidavit of complaint based upon hearsay mus t show the informant’s basis of knowledge and the credibility of the informati on provided. The state notes th at the defendant has provided no law that requires

that probable cause must be prov ided in the affidavit and assert s that the magistrat e could re ly on what he was told by O fficer R idings. Ho wever, we conclude that the probable cause must exist within the affid avit(s) of complaint before an arrest warrant may

issue. Rule 3, Tenn. R. Cr im. P., defines an affidavit of complaint as “a writt

en statement alleging that a person has committed an offense and alleging the essential facts constituting the offense cha rged.” The Advisory Commission Com ments to Rule 3 s tate the follo wing:

It must be emphasized that before a vali d arrest warrant can issue, the judicial officer issuing the warrant

must be supplied with sufficientinformation to support an independent judgment that probable cau se exists for the war rant. Whit eley v. Warden , 401 U.S. 560 (1971). A factually sufficient basis for the probable cause judgment must appear within the affidavit of the complaint. If hearsay evidence is relied upon, the basis forthe credibility of both the in formant and the informant’s19 information must also appear in the affidavit. Spinelli v. U.S. , 393 U.S. 410 (1969). Also, any evidence the magistrate obtains by examination of a witness mus t be reduced to writing and signed by the witness. See T.C.A. §§ 40-6-203 and -204. In this respect, issuance of the a rrest warrant must be based upon probable cause as established in the wri

tten examination conducted by the magistrate. See T.C.A. § 40-6- 205. Thus, an arrest warr ant can only be validl

y issued upon probable caus e being shown by writt

en affidavit pursuant to Rule 4 a nd T.C.A. §§ 40-6-203 through 205

.
In material part, the affidavit provides the followi ng, with the underly ing text being the port ion handwritten by Officer Ridings and the remain ing portion being a printed form: Personally appeared before me, the unders igned Judge of the

Court of General Sessions of Blount County, Tennessee, the undersigned affiant, and made oath in due form of law, that on or about March 19 [,] 19 94 , the offens e of criminal homicide: T.C.A. - 39-13-201 to wit: on March 19, 1994[,] Mr. Johnny V ick tor Perez AKA: JUAN PEREZ did go to a residence located at 107 Belfore Circle, where with premeditation, did deliberately and unlawfully kill Ms. Kimber ly J ean Bauer by stabbing her to dea th. Info rmation pursuan t to all th e above was obtained by witness w ho verified the su spect was at the scene at the ap p roximate time of death and had made statements to the a ff ect he (PEREZ) was going to kill Ms. Bauer. All of the above occurred in the City of Alcoa, County of Blount, State of Tenne ssee has been committed in the State and County aforesaid a nd c harging Johnny Vicktor Perez AKA: JUAN PEREZ

thereof.
The defendant contends that neither the informant nor the informant ’s information are shown by the affidavit to be reliable. The state responds that because the statements were made by “witnesses, not informants ,” they should be deemed reliable. Citizens

who witness cri mes or relevant events are presumed to be reliable for probable cause purposes. See State v. Melson , 638 S.W.2d 342, 35 4-56 (Tenn. 1982); State v. Smith , 867 S.W.2d 343, 346-48 (Tenn. Crim. App. 1993). We believe that the word “witness”

as used in the affidavit reasonably means a person with personal knowledge -- w

hether by sight, heari ng, or other experienc e -- of the events recounted20

in the affidavit. This also leads to a rational inference th at the source of Officer Ridings’ information was a bystander. Obviously, the affidav it of complaint could have been more detailed, but we beli eve that it provided pr obable cause to arrest the defendant.
Second, the defendant argues that the a rrest warrant was issued for another person, rendering his subsequent arrest illegal and his statement to po lice inadmissible as fruit of the il legal arrest. In suppor t of his argument, the defendant relies upon State v. Hughes , 31 Tenn. 261, 262 (1851), in which our supreme court held that the name of the defendant must be corr ectly stated in the indi ctment, otherwise it wi ll be fatal. The state responds tha t the trial court corr

ectly determined that the warrant was issued for the arrest of the defendant , given the fact that the arrest warrant contains the defendant’ s correct name, birthday and address. We agree. There is no merit to this is sue.

III. ADMISSION

OF TWO PHOTOGRAPHS OF THE VICTIM The def endant a sserts th at the tri al court e rred by adm itting two photographs of the victim. He argues that the photogr aphs should have been excl uded because they had minimal probative value, and any probative value was substantially outweighed by the dang er of unfair prejudice because the photographs were lik ely to inflame or mislead the jury

. See Tenn. R. Evid. 401 and 403. The st ate responds thatthe trial court did not abuse its discretion by admitting the photographs during the crossexamination of the defendant. It arg ues that the photographs we re particularly r elevant to impeach the defendant’s testimony that he did not see the vic tim when he walked inside the victim’s h ouse.

The leading case in Tennessee regarding the admissibility of photographs of murder victims is State v. Banks , 564 S.W.2d 947 (Tenn. 1978), in which our supreme court held that the deter mination of admissibility is within the discr etion of the21

trial court after considering the relevance, probative value and potential unfair prejudicial effect of such evid ence. See Tenn. R. Evid. 403. The gener al rule, as stated in Banks , is that “photographs of the c orpse are admissible in mur der prosecution s if they ar

e relevant

to the issue

s on trial, notwithst

anding thei r gruesome and horrifying character.” Id . at 950-51. On the other hand, “ if they are not relevant to prove some p

art of the pro

secution’s

case, they

may not be ad mitted solel y to inflame the jury and prejudice them against the defendant.” Id . at 951.

Thus, even relevant evidence should be excluded if its probative value is substantially outwei ghed by the danger of unfair pr ejudice to the defendant. Id .; see also Tenn. R. Evid. 403. In Banks , the court stated, “The more g ruesome the photographs, the more difficult it is to establish that the ir probative value and relevance outweigh their prej udicial effect.” 564 S.W.2d at 951.

The state firs

t introduced a black and white photo graph of the v

ictim, about eleven by thirteen and one-half inches in size. The photograph de picts the victim from her knees upward ly ing on her back in the middl e of the living room floor. Only the lower right porti on of the side of the victim’s face is showing. The photog raph reflects that the front of the victim’s shirt and bra had been cut, revealing the victim’s bare chest. Several towe ls are lying besi de the victim on each side of her upper body. A coffee table is above the vic tim’s head directly i n front of the window. It i s not a closeup shot, an d the bla ck and whit e photogr aph has a dull quali ty.

The state also introduced a three and one-half by five inch c olor photograph o

f the victi m lying i n the same posi tion, but the

photograph is taken from a different angle, showing the entire body of the victim. Most of the victim’s face is showing. Blood is on

the victim’s bra and s hirt, and a large blood s pot and several22

smaller blood spots are on th e carpet to the left of the victi m’s body and in front of the coffee table. The photograph is a rel atively close shot

.

The black and white photogr aph was initially

introduced during the testimony of Officer Kauker to show what he observed on the ni ght of the offense. It was shown to the jur

y during the cross-

examination of the defendant followin g the defendant’s testimony regar ding the location of the vi ctim when he walked i nto the house on the night of the offense . The defendant claimed that he did no t see the victim when he first entered the house because most of the victim’s b ody was underneath the coffee table. He said that the vi ctim was curled on her side in a fetal position w ith the blood spot in front of the victi m. On redirect examinati on, the defendant said that the diagram of the scene contained a discrepancy in that the large blood spo t was directly in front of the coffee table. On recross-examination, the state soug ht to introduce the color photograph to show the location of the large bl ood spot and to show that the victim could not have been under the coffee table given the size of the coffee table. The trial court agreed that the photograph was probat ive for such purposes and al lowed its admission.

Initially, we note

that the admitted photograph depic ted the victim in a different position than when she was discovered. This factor weighs against admissibility. See Banks , 564 S.W.2d at 951. In the present case, the locat ion of the victim’s body w

as material given the defendant’s testimony that he w as unable to see the victim when he ini

tially walked i nto the house because most of her body was underneath the coffee table. Although not depicted in the same location as when di sc ov er ed , t he ph ot og ra ph s s how t he vi ct im ’s bo dy in re la ti on to th e c of fe e t ab le . We believe that the photograph s are relevant because the y show that giv

en the size of the coffee table, it was unlikel y that the victim’s

body was in the location asserted by the defendant. Although the color photog raph is more gruesome than the black and white23

photograph, the color depicts better the location of the large blood spot. The trial court excluded other photographs that were more gruesome and graphic in nature. In our review, we ar

e unable to conclude that the photog raphs’ probative val ue was substantially outwei ghed by the risk of unfair p rejudice. See Tenn. R. Evid. 403. Giv en the trial court’s full c

onsideration of this issue, w e conclude that it exerci sed due discretion in admitting

the photographs.

IV. DENIAL OF TESTIMONY OF BARRY RICE The defendant contends that the trial cour t erred by refusing to allow Barry Rice to testify to statements made by Morris Keaton that a black car with at least two occupants was at the victim’s house for about ten minutes, not a minut e and a half as Keaton testified to on direct examination. He argues that Rice’s testimony w as admissible as extrins ic evidence of Keaton’s pri or inconsistent statement. See Tenn. R. Evid. 613(b). He asser ts that the trial court er red by determining that the evidence was not admissible because Keaton w as not given an opportunity to explain or deny the statement. The defendant con tends that Rule 613(b) does not require that the witness explain or deny the pr

ior inconsistent statement befor e extrinsic evide nce of the statement may be offered, arguing that Mr. Keaton could have been recalled by the state. See N. Cohen et al., Tennessee Law of Evidence § 613.4, at 412 (3d ed. 1995). The state responds that the testimony was properly ex

cluded because Keaton was not given the opportunity

to explain or deny the

statement made to Rice. We agree.
During di rect exami nation, Keato n testified t hat before the victim ca me home, a black car with at least two female passengers arrived, knocked on the victim’s door, returned to the car about a minute and one-ha lf later, and left. On crossexamination, Keaton was as ked if he had earlier told defense c ounsel or William Boddy whether he had said that the bl ack car had stayed at the hou se about ten minutes. Keaton answered that he had not made the statement, and he also said that he did not24

tell anyone that the car l eft the house after ten minutes, asserti ng that the car stayed only a minute and a half. Keaton w as excused after his testi mony. The defendant presented the testimony of William Boddy tha t Keaton had told him that the car remained for ten minutes. When the defendant tried to prese nt similar testimony from Barry Rice, the state

objected on the grounds that Ke aton had not been afforded the opportunity to explai n or deny the statement to Ri ce. The trial court sustai ned the objection.
The defendant argues that Rice’s t estimony should have been admi tted as extrinsic evi dence of Keaton’s prior inconsi stent statement under Rule 613(b) , Tenn. R. Evid., which states:

Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidenc e of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to expl ain or deny the same and the opposite party is afforded an opportunity to interrogate the witn ess thereon, or the interests of j ustice otherwise req ui re . This provision does not apply to ad missions of a part yopponent as defined in Rule 803(1.2). Recently, our supreme court ruled that extrinsic evidence is inadmissible under Rule 613(b) unless (1) the w itness is asked whether the witness made the prior inconsistent statement and (2) the witnes s denies or equivocat

es as to having made the pr ior inconsistent statement. State v. Martin , 964 S.W.2d 564, 565, 567 (Tenn. 1998). However, Rule 613( b) permits the trial cour t to depart from the foundational requirements when “the interests of justice otherwise require.” Id . at 568.

In Martin , the witness, the defendant’s girlfriend, testified that the defendant was with her at their apartment at the time of the robbe ry in issue. Id . at 566. On cross-examination, the witness admitted speaki ng to an officer shortly after the robbery, and she said that she did not tell the officer that the defendant was with her when the robbery occur red. Id . On rebuttal, the state cal led the officer who testified that when told the date of the robber y, the witness sai d to the defendant, “I don’t know25

where you were, I was in the motel.” Id . Because the extrinsic evidence of the prior inconsistent statement was introduced without firs t asking the witness

whether she had made the statement to the defendant or to any one else, the supreme court held that the extrinsic evidenc

e should not have been admitted. Id . at 568.
In discussing the proper foundation for admission of extrins ic evidence of a prior inconsistent sta tement, the supreme court cited w ith approval the procedur es traditionally used in

Tennessee before the implementation of Rule 6 13: This practice required that a witness’ attention be drawn to the place, persons present, time of the statement, and to the substance of the sta t ement before extrinsic ev idence of the prio r inconsistent statement could be used to impeach the witness’ credibili ty. The foundational requirements w ere to: (1) provide the witness an oppor tun ity to admit, deny, or explain the prior inconsistent stat ement; ( 2) refresh the witness’ memory; and (3 ) allow the witness to respond i ntelligently to the impeachment attempt. Id . at 567 (citations omitted) . We believe that these requirements mus t be met for the admission of extrinsic ev idence of a prior inconsiste nt statement of a witness under Rule 613(b).
Applying these standards to the present case, we hold that the trial court properly excluded Rice’s testimony. Keaton was not afforded an opportunity to explain or deny the statement to Rice before the defen dant sought to admit the extrinsic evidence of the statement throug h the testimony of Rice. We acknowledg e that when questioned about the prior s tatements to defense counsel and Boddy, Keaton testified that he not only did not make the statements to them but also did not make the statements to anyone else. H owever, Keaton’s attent ion was never draw n to the place, persons present, time of the statement , and the substance of the prior s tatement to Rice. Accordingly , Keaton was not provi ded an opportunity to admit or deny the statement. Also, the case before us is not an extraordinary case warranting the26

flexibility to deal with the strict requirements of Rule 613(b). Therefore, Rice’s testimony was properl

y excluded.

V. CROSS-EXAMINATION OF THE DEFENDA NT The defendant asserts that he is entit led to a new trial on the basis that he was unfairly prejudiced during the cross-examination. He argues that the trial court severely admonished hi m in front of the jury. He ar gues that he was “impr operly baited by the State’s attorney

and should not have been admonished so severely by the trial court, especia lly when the trial court could not see what the State’s att orney (through his gestures) was

asking the defendant.” He ass erts that the trial court

’s frustration with and hostility towar

ds him deprived him of a fair tr ial as required by

the Fifth, Sixth and Fourteenth Amendments to the United St ates Constitution and the Tennessee Constitution. The state respond s that the defendant has waive d the issue by failing t

o cite any authority i n support of the position. See T.R.A.P. 27( a)(7); Tenn. Ct. Crim. App. R. 10(b). It argues that in any event, the trial court acted within its discretion in controlling the conduct o f the trial, and it did not abuse its discretion by or

dering the defendant to answer the prosecutor ’s questions. It also argues that any error was harmless given the br

iefness of the admonishment during the l engthy trial. See T.R.A.P. 36(b); Tenn. R. Cri m. P. 52(a).

Failure to cite to authori ties in support of an issue con stitutes a waiver of the issue. Tenn. Ct. Crim. A pp. R. 10(b). The defendant’s bri ef cites no authority other than the general claim that the trial court’s conduct violated his rig hts under the Fifth, Sixth and Fourteenth Amendments to the United States Constituti on and Article I of the Tennessee Constitution. We do not believe that the brief suffices regarding the need to cite authority. In any

event, we do not believ e that the defendant is entitled to a ne w trial.27 During direct exami nation, the defendant testified that he did not see the victim’s body w

hen he first walked into th e house. The defendant was cross-examined about this testimony in an attempt to show that it was likely that the defendant would have seen the victim’s

body because it was i n plain view. The pro secutor showed a photograph depicting the v iew of the victim’s h ouse when entering the hous e, and he asked the defendant to show the rout e he used to walk to the bedr oom. When the defendant began to explain the re ason for walking to the bedroom toward the light rather than explaining

the direction he took to g et to the bedroom, the prosecutor asked the defendant to answer the question by telling the j ury where he went and told him he would then be given an opportunity to explai n the reasons for his action. The defendant then responded, “In that direction.” The prosecutor tried to clarify the directi on the defendant took by asking speci fic questions. When the defendant did not respond to one of the questions asked, the tr ial court told the defendant to li sten to the question and answer the question, and the defendant replied that he had answ ered the question. The trial court told the defendant to listen to him, but the defendant inter rupted the court, resulting in the court admonishing the defendant not to interrupt the court.

The trial court then told the d efendant: This will help your testimony and it w ill hel p the Jury understand your testim ony. And anything that you want to explain afterward, you can do that . And your lawy er is going to be given a chance to q uestion you again. The prosecutor asked the defendant w hether he walked between a heater and the refrigerator, and the defendant r esponded by asking w

hether he would be allow ed to explain after answeri ng the question. The follow ing colloquy took place: [ GENERAL

BAILEY ]: If you will answer the question, Mr. Perez. THE COURT: Do you unde rstand th e questio n, Mr. Pere z. MR. COHEN: Your honor --28 THE WITNESS: I understand the question , . . . what he doesn’t comprehend is that t he space i s not as it’s shown in that picture. The space -- MR. COHEN: Excuse me, your Honor, may I interrupt. THE WITNESS: -- is a lot wider. MR. COHEN: Mr. Perez, be quiet

.. THE COURT: I want e verybody to be quiet, including the lawyers and the witness. The question was did you walk between a refrigerator

and a heater. That’s a simple q uestion. THE WITNESS: Which I answered yes. THE COURT: No, you didn’t. THE WITNESS: Yes, I did. THE COURT: Don’t argue with me. The first words out of your mo uth was, can I explain something and what he d oesn’ t comprehend. Now, ask the question again, pleas e, and then when he’s answered -- M R. COHEN: Your honor -- I’m sor ry. I didn’t mean t o interrupt. I thought y

ou were through. THE COURT: When he answers the question, then if there is something about that question that needs to be explained, you can explain it. But just because you might want to explain something else doesn’t mea n you can go into a speech after a specific question has been asked. Now, do

you understand that, Mr. Perez? THE WITNESS: Yes, sir. I asked you if I could go -- THE COURT: Then you do it. THE WITNESS: -- into an explanation after -- THE COURT: There was nothing that needed to be explained. If y our lawyer wants to get up and start aski ng you about the distances from somewhere to somewhere else, then he can do that. THE WITNESS: Well, isn’t that what he just asked me? THE COURT: No, sir. Ask the ques tion again.
The defendant then objected on the ground that the prosecutor was usi ng an ink pen to ask the questi on, causing the defendant to be confused bec ause the29

prosecutor was asking one question verbally and another question through his gestures. He said that the jury could see the g estures, although he did not explain the nature of the gestures. The judg e stated that he could not see the g estures made by the prosecutor and overr uled the objection.
At the hearing on the motion for new trial, the trial court stated that it admonished the defendant for two reasons : (1) to control the tri al and (2) to prevent the defendant from talking over the prosecutor such that he alienated the jury. The court stated that it did not yel l at the defendant. It also found that the ad monishment did not have an ef fect on t he jury.

A trial court has the inherent power to supervise and control its own court proceedings. Andrews v. Bible , 812 S.W.2d 284, 291 (Tenn. 1991); State v. Bragan , 920 S.W.2d 227, 23 9 (Tenn. Crim. App. 1995). The control and scope of crossexamination is withi n the sound discretion of the tri al court. Reece v. State , 555 S.W.2d 733, 735 (Tenn. Crim. App. 1977). However, the trial court must take care not to convey to the jury

an appearance of taking sides. See State v. Suttles , 767 S.W.2d 403, 407 (Tenn. 1989); State v. B rown , 823 S.W.2d 576, 58 8 (Tenn. Crim. App. 1991).

We hold that the trial court acted within its discretion. A r eview of the record, including the audio cassette tape recording of the def endant’s crossexamination, reflects that the defenda nt did not first answer the question asked before tr yi ngto ex pl ai n. Th e d ef en da nt in te rr up te d t he

tr ia l c ou rt on se ve ra l o cc

as io ns . We also note that defense counsel on one oc casion had to tell the defendant to be q uiet. The trial court had the authori ty to control the proceedi ngs as it did.

VI. NEWLY DISCOVERED EVIDENCE30 The defendant claims that he is entitl ed to a new trial on the bas is of newly discover

ed evidence that the vic tim was seen at a bar near her house on the night of the off ense. He a sserts th at the evid ence is ma terial an d would like ly have resulted in a different outcome because it increases the possibi lity of the existence of other suspects, creating a reasonable doubt as to the defendant’s guilt. The state responds that the trial court properly refused to order a new trial based on the newly discovered evidence. We agree.

At the hearing on the motion for new trial, the defendant presented testimony from two employ ees who worked for a bar located near the victi m’s house. The employees said that they remembered the victim coming into the bar on the evening of the offense. Both employee s stated that they wer

e not sure that they saw the victim on the night of the offense until another person told the m. One employee said that the victim came i nto the bar about 4:30 or 5:00 p.m., or dered a beer, drank half of it, and then left. She said that th e victim arrived and left alone. On crossexamination, she testified that the victim was not w

earing a Krystal uni

form, and she conceded that it could have been the day before the of fense that she saw the victim in the bar.
Defense counsel’s legal secretary testified that one of the employees who saw the victim at the

bar was formerly her

mother-in-law. She s

aid that about one and a half to two weeks after the trial, she gave defense counsel both of the employees’ names and one of the employees’ address es.
Barry Rice, a priv

ate investigator, tes

tified that two to three w eeks after the trial, defense counsel gav e him one of the employees’ address es. He said that he interviewed the tw

o employees. He testified that the employees told him that the y saw31

the victim in the bar on the night of the offense and that they remembered people talking about the victim’s presence in the bar that night.
Officer Ridings testified tha t he measured the distance from the bar to the Krystal and from the bar to the victim’s house. He stated that the distances w ere about the same , six tenth s of a mil e. He said that it to ok about seven min utes and two seconds to walk the distance between the locations.

The trial court denied a new trial on the basis of newl y discovered evidence. It found that it w as arguable whether the evidence would be harmful t o the state or helpful to the defendant. It con cluded that the defendant acted diligently in discovering the ev

idence after trial, althoug h there was little to show that the defendant acted diligently before trial. The trial court determined that the evidence w as not strong and that a new trial w

as not justified.
The decision to grant or deny a new trial on the basi s of newly discove red evidence is a matter that r ests in the sound discreti on of the trial court. State v. Goswick , 656 S.W.2d 355, 358 (Tenn. 1983). However,a new trial is a matter of right when the defendant establishes ( 1) reasonable diligence in seeking newly discovered evidence, (2) materiality of the evidence, and (3) that the new evidence will likely change the result of the trial to one more favorable for the defendant. State v. Singleton , 853 S.W.2d 490, 496 (Tenn. 1993); Goswick , 656 S.W.2d at 359; Taylor v. State , 180 Tenn. 62, 67, 171 S.W .2d 403, 405 (1943).

In this case, the state does not contest the defe ndant’s reasonable diligence in discov

ering the evidence. R

ather, it argues that the ev idence was neither material nor likely to produce a more favorable result for the defen dant. Evidence is considered material if it w ould be likely to chang e the result. Evans v. State , 55732

S.W.2d 927, 938 (T enn. Crim. App. 1977). When newly discovered evidence merely tends to contradict or to i mpeach the trial evidence, a new trial is not always warranted. See State v. Sheffield , 676 S.W.2d 542, 544 (Tenn. 1984); State v. Lequire , 634 S.W.2d 608, 615 (Tenn. Crim. App. 1981). In other w ords, a new trial w

ill not be granted when it appears that such newly disc overed evidence merely discredits the testimony of a witness at the original trial,contradicts a witnes s' statements, or impeaches a witness, unless the testimony of the witness being impeached was so important to the issue and the ev idence impeaching the wi tness so convincing that a different result must follow. Rosenthal v. State , 200 Tenn. 178, 186, 292 S.W .2d 1, 4-5 (1956).

The conviction in this c ase was based upon both direc t and circumstantial evidence. During the

trial, the defendant sought to es tablish the discrepancies in the time of events. The defendant alleged that the newly discov ered evidence showed additional discrepancies, creating reasonable doubt a s to his guilt. How

ever, the evidence presented by the defendant was not certain eith er as to the time or the date that the victim was s

een at the bar. Moreover,the employees testified that the y remembered that the victim w as in the bar on the night of the offense after talking to other people. Under these circumstances, the evidence is not strong that the victim was in fact in the bar before the offense took place. As a result, we cannot say that the new evidence would likely change the result of the trial. We hold that the trial court did not abuse its discretion by denying a new tri al on the basis of newly discovered evidence.33 II. SENTENCING The defendant asserts that the trial court erred by sentenci ng him in the upper part of Range I. He cont ends that the trial court er red by applying enhan cement factors. However, the defendant does not specify which enhancem ent factors were inappropriately applie

d. Rather, the defendant merely “adopt[s] by reference the presentence report and the evid ence and argument at the sentencin g hearing . . . .” The state argues that the defendant w aived the issue by fail ing to present any arg ument with citation to author

ities as required by

Rule 27(a)(7), T.R.A.P. We agree that the defendant failed to follow the requirements of Rule 27(a)(7). The defendant’s contention tells us nothing . The burden on appeal is on the defendant to show that the sentence imposed is improper. T.C.A. § 40-35-401(d), Sentencing Commission Comments. “With the trial court’s deter minations being presumptiv ely correct, it is

not our function to rummage through the record to glean support for a defendant’s general claim of excessive sent encing and such a claim ru ns a high risk of the sentenc e being summarily affirmed.” State v. Richard J. C rossman , No. 01C01-9311-CR-00394, Wilson County, slip op. at 12 (Tenn. Cr im. App. Oct. 6, 1994), app . denied (Tenn. Jan. 3, 1995).
In any event, the recor d supports the sentence imposed by the trial court. The presentence report shows that the then thirty-tw

o-year-old defendant has a pri or conviction for driv

ing under the influence of an intox icant (D.U.I.) in 1993. It reflects that the defendant committed the present cri me while on probation for the D .U.I. conviction. The report states that the defendant is a high school graduate w ho attended college for a period of time, leaving for financial reasons. It show s that the defendant had maintained gainful employment but that he had been involved i n altercations with several coworker

s at his most recent job. The de fendant denied that he used alcohol or drugs at the time of the presentenc e interview.34 At the conclusion of the sentencing hearing, the trial cour

t found the following enhancement factors applicable pursuant to T.C.A. § 40-35-114: (1) the defendant has a previous history of criminal convictions or criminal behavior

in addition to those necessar y to establish the appropriate range; (5) the defendant treated the victim with exceptio nal cruelty during the commission of the offense; (8) the defendant has a previous his to ry of unwillingness to comply with t he conditions of a sentence involving release in the comm unity; (9) the defendant possessed or employed a d ead ly weapon during the commission of the offense; and (15) the defendant abused a position of pr ivate trust. The trial court gave g reater weight to enhanc ement factors (5) and (9). In mitigation, the court considered the defendant’s lack of a prior felony rec ord and his history of being gainfully employed and supporting himself, stating that the mitigating fact ors were “significant.” See T.C.A. § 40-35-113(13). The cour t stated that a twenty-

five year sentence was appropriate based upon the applicable enh ancement factors, but it reduced the sentence to twenty-two years given the applicable mitigating factors.

The record reflects that the tr ial court properly followed the sentencing principles and considered all relevant facts and ci rcumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The record supports the trial court’s sentenci ng decision.
In consideration of the foregoing and the record as a whole , we affirm the trial court’s judgment

of conviction.

Joseph M. Tipton, Judge35

CONCUR:

Jerry L. Smith, Jud ge

Thomas T. Woodall, Judge