# FILED

February 10, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE FEBRUARY 1998 SESSION

STATE OF TENNESSEE, ) No. 01C01-9609-CR-00412 ) Appellee ) ) PUTNAM COU NTY V. ) ) HON. LEON C. BURNS, J R., DAVID LEE ROBINSON and ) JUDGE DELORES KAY SMITH, ) ) Appellants. ) (First Degree Murder) ) )

For the Appellant: For the Appellee: William A. Cameron John Knox Walkup Randy S. Chafin Attorney General and Repor ter Cameron & Chafin 100 S. Jefferson Avenue Karen M. Ya cuzzo Cookeville, TN 38501 Assistant Attorney Gener al (Defendant Robinson) 425 Fifth Avenue North Nashville, TN 37243-0493 David N. Brady District Public Defender 215 Reagan Street Eric D. Christianse n Cookeville, TN 38501 District Attorney General Pro Tem (Defendant Smith) 113 W. Church Street, Suite J Greeneville, TN 37745

OPINION FILED: ___________________

AFFIRMED

William M. Barker, Specia l Judge2 OPINION

The appellants, David Lee Rob inson and Delores Kay Smith, appeal as of right from their convictions i n the Putnam County Criminal Court. Appellant Robinson was convicted of first degree murder and sentenced to life in pr ison. Appellant Smith was convicted of second degree mur der and sentenced to serve ei ghteen years and fined $40,000. On appeal, appellants each raise the following two issues: (1) whether the trial

court erred in allow

ing an agent from the Tennessee Bureau of Investigation to testify as an expert that certain suspects were not involved in the cr

ime; and (2) whether the trial

court erred in limiti ng cross-examination of Jacqueline Langford rega rding her recollecti on of a statement made by appellant Smith. In addition, appellant Robinson challenges (a) the admission of testimony that witness Kim Sims aborted a pregnancy which resulted from a rel ationship with him, and (b) the trial court’s failure t

o instruct the jury no

t to listen to the audio porti on of a videotape exhibit during its deliberations. Our review of the record reveals that no reversible error was committed in the trial court. Accor dingly, we affirm appell ants’ convictions and sentences. Appellants were indicted for the first degree murder of Gerald L. Irwin in Putnam County. During the evening of January 12,1995 and early morning hou rs of January 13, the victi m contacted appellant Robinson se veral times about the pay ment of a $200 debt that Robinson owed hi m. Robinson met with the v ictim, a known drug dealer, on two occasions that night, but denied havi ng the money to pay the debt. Finally, Robinson called the victim and said that he had the money and expressed his desire to meet the victim. The victim suggested that they meet at the “old oak tree” in Cookeville. Evidence showed that Robinson resold drugs that he obtained from th e victim and, specifically, that he sold drugs to appellant Smith and had done so for1 In her stat ement to the pol ice, Smith sai d that she had gi ven Robinson the gu n earli er that evening when he m ade the statemen t, “I need a gun.” 3 approximately one ye

ar. Smith was at the Robi nson residence to purchase dr ugs on the night of January 12, 1995. Although she did not know the details, Smith was aware that someone was tr ying to collect money

from Robinson. In conjunction w ith that, Smith had driven Robi nson to a pay phone to make phone cal ls that evening. She was also present at th e Robinson home when the vi ctim called and suggest ed the meeting at the oak tree. Smith agreed to take Robinson ther e. Smith drove Robinson to th e old oak tree and they w aited for the victim to arrive. Robinson w

as in possession of a small handg un that Smith had provided. 1 As the victim approached, Robi nson exited the vehicl e and told Smith to drive ar ound and then come back and get him. Robinson got into the backseat of the victim’s car. Kim Sims was a passenger i n the front seat. The victim dr ove a short distance and pul led into a parking lot to tur

n around. As the victim turned his car, Robinson sh ot him in the back of the head. Robinson then told Kim Sims to move to the backsea t. Robinson got in the driver’ s seat and pushed the victi m’s body over so that he could drive the car. As Robinson drov e the victim’s vehi cle past Smith’s vehicle, he motioned for her to follow hi m. They drove on Interstate 40 to the Smithville ex

it where Robinson pull ed off and parked the victim’s ca r on Tucker Ridge Road. He took the victim’s w allet, cellular phone, pager, money, and some dr ugs. He and Sims got into the Smith vehicle and they returned to Cookev ille. Robinson, Smith, and Sims concocted a “story ” regarding their activities th at evening. The day follow ing the shooting, Robins on called the victim’s friends and family inquiring about his whereabouts, apparently in an attempt to divert any suspici on. According to Sims’ testimony, she spent part of the day pretending to be looking for the victi m and asking others about his whereabouts, likew

ise in an effort to divert suspicion from her. Both Sims and Smith gave statements to law enforcement2 Und ispu ted p roof esta blishe d tha t the vic tim w as ar me d with a .35 7 Ma gnu m w hich was visible in the front seat of his car. 4 officials that corroborated the c oncocted story. Those statement s were later recanted and both gave new statements to law enforcement off icials. Robinson testified at the trial and denied having any intent to kill the victim. He claimed that he shot the vic tim in self-defense. Robinson sai d that the victim had threatened him and his family over the course of the night and he shot the victim because the victim pointed a gun at him while in the car. 2 Although she did supply the gun, Robinson stated that Smith had nothing to do with the murder and did not know anything about it. The State theorized, however, that Robinson and Smith planned the murder and both were inv olved. Although certai n details were corr oborated by a number of other witnesses, the State’s theory was established principally by Kim Sims, the only eyewitness to the crime. Sims testified that she did not see the victim reach for his gun, and althoug h she had been with the vi ctim several hours that night, she never heard him threaten Robinson. Smith did not testify at tri al, but her second statement to l aw enforcement officials corroborated Robins on’s testimony that he w as fearful of the victim. In her statement, Smith denied any inv olvement in the murder, but admi tted giving the weapon to Robinson. The jury convicted Robinson of the fir st degree murder of Irwi n. Under a theory of criminal responsibility, Smith was convicted of the l esser offense of second degree murder. In their first issue, appel lants challenge the tri al court’s ruling w hich permitted Special Agent Larry O’Rear of the Tennessee Bureau of Inve stigation to testify tha

t suspects James and Nicole R ice were not invol ved in the murder of Gerald Ir win. While appellants do not cha llenge O’Rear’s qualifications, they argue that his testimony invaded the pr ovince of the jury by

impermissibly offering an expert opinion on the credibility of w

itnesses.3 This is not a pro per is sue for S mith to rais e on a ppe al. Th e trial c ourt lim ited o nly Ro bins on’s cross examination o

f Langford; no objecti on appears in t he record to t he questions asked by Smith’s couns el. As a result,we address the i ssue only as t o appellant

Robinson. 5 During the police inv

estigation into Gerald I rwin’s murder, Ag ent O’Rear interviewed Kim Sims. In her first statement, she told Agent O’Rear that she and Irwin had been at the

home of James an d Nicole Ri ce in Baxte r prior to the murder. Sims also told him that the victim left her at a motel and went back to the Rice hom e for a drug deal. Based on that statement, O’ Rear testified that the R ices became the “prime suspects” in the victim’s murder. Police sear ched the Rice home and also took statements from both of the Rices. How ever, in light of additional information gathered during the entir e investigation, Ag ent O’Rear testified that he dete rmined the Rices were not inv

olved in the murder. Sims later recanted her statement. At trial, Smith’s counsel objected to O’Rear’s tes timony on the basis that the testimony was hearsay. The testimony was not hea rsay and the objection w as correctly overruled. For the first time on appeal, the appellants argue that O’Rear’s testimony invaded the pr ovince of the jury by

impermissibly offering an expert opinion on the credibility of w

itnesses. This argument w as waived when it was not raised at the trial court level

. SeeTenn. R. Evid. 103(a)(1) ; Lee v. Lee , 719 S.W.2d 295 (Tenn. Ct. App. 1986). Therefore, we decline to address this i ssue.Appellants also challenge the trial court’s ruling that limited the crossexamination of witness Ja cqueline Langford. 3 Appellant Robinson was living with Langford at the time of the crime and th ey had a child together.Langford was acquainted with Smith bec ause Smith purchased drugs from Robinson at their home. Langford stated that Smith came to her house between 9:00 and 10:00 a.m. on the morning of January 13, 1995. L angford testified that she thought Smith made a statement to the effect that Robinson w as supposed to have killed Sims the night6

before. She indicated on direct examination that she was uncertain of the exact statement Smith made that morning. The following colloquy

took place during cros s-examination of the witness by Robinson’s counsel: Q. And, now, you say i n here that she [Smith] said he [ Robinson] was supposed to kill her [Sims] too. Is that rig ht? A. I said I think that’s w hat she said. Q. Under oath today, can you swear that’s what she said? A. No. I think that’s wh at she said. Q. You think that’s what she said. Could she have said he could have kill ed them both? GEN. CHRISTIANSEN: If yo ur Honor, please, I respec tfully object on what could have. THE COURT: Sustained. MR. CHAFFIN: Your Honor, I think I have a right to go in and ask her. THE COURT: You can ask her, but that question was improper. Sustain the objection. Q. You’re under oath today, right? A. Uh huh. Q. You cannot swear that’s what she said, can yo u? GEN. CHRISTIANSEN: If your Honor, please, that’s repetitious. MR. CHAFFIN: Well, I’d like to be able to -- THE COURT: Sustain the objecti on. Robinson alleges that he w as entitled to explore th e witness’ answer and the trial court’s restriction on cross-examination w as reversible erro r. It is without questi on that a witness may be cross-examined on any matter relevant to issues in the case, including cre dibility. Tenn. R. Ev

id. 611(b). Counsel should be afforded latitude on cross- examination to explore mat erial issues, and the4 The open ing an d clos ing ar gum ents of co uns el we re no t trans cribe d for the re cord on ap pea l. 7 trial court, in this c

ase, erred in unduly li miting counsel’s exami nation of the witness. Counsel was entitled to explore the accuracy of the memory of the witness to assist the jury in judging

her credibility. Nevertheless, after a thor ough review of the rec

ord, we have determined that the error was harmless beyond a reasonable doubt. Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a). Robinson next argues th at it was error for th e trial court to admit testimony from Sims that, one week before the sh ooting, she terminated a preg nancy which result ed from a relationship with him. He argues that such t estimony was irre levant to any issue in the case. Moreov er, due to the controvers ial nature of abortion, Robins on asserts t hat the in troducti on of th e testim ony was high ly prejudi cial to his credibili ty. Prior to Sims’ testimony , Robinson’s counsel made a moti on in limine to exclude any testimony

regarding the aborti on. Apparently, the matter ha d been mentioned in opening argument by the State and counsel sought to prevent its introduction during the direct examination of Sims. 4 The trial court overr uled the motion, finding that the information would not be unduly prej udicial to Robinson. Bias, or the feelings that a witness has with regard to a party or issue, is relevant for the trier o

f fact in assessing the wei ght to be given to a w itness' testimony. See Tenn. R. Evid. 616; State v. Willia ms , 827 S.W.2d 804, 808 (Tenn. Crim. App. 1991). Our supreme court recognized long ago “that witnesses are often as much influenced in testifying by feelings of friendship or hosti lity to parties to the case as by direct pecuniary interest in the result of the trial. . .” Creeping Bear v. Stat e , 8 7 S .W. 653 (Tenn. 1905). The evidence of Sims’ pregnancy and later abortion was relev ant to the issue of her credibil ity. However, even r

elevant evidence may be excluded upon a showing that its probative value is substantially outwei ghed by the danger of unfair pr ejudice, confusion of the issues, or mislea ding the jury. Tenn. R.Evid. 403; State v. Banks ,8

564 S.W.2d 947, 949 (Tenn. 1978). While the information may have been pr ejudicial to the appellant, he has failed to show that its prejudicial eff ect substantially outwei ghed it

s probative nat ure. Appellant i s entitl ed to no r elief. In Robinson’s final issue, h e alleges the trial cou rt failed to instruct the j ury not to listen to the audio portio n of a videotape exhibit dur ing deliberations. Dur

ing the trial, a videotape of the crime scene was played for the jury and narrated in open court by Detective David Andrews of the Putnam County Sheriff’s Department. However, the tape also included narrati on by Detective Andrew s when the scene was fil med. When the jury retired for deliberations with the exhibits,the trial court did not specifically instruc

t it not to listen to the audi o on that particular vi deotape. We note that counsel f or appellant Robinson did not request that the trial court give a limiting instruction and we cons ider the issue waiv ed. Tenn. R. App. P. 36(a). Furthermore, there is no i ndication that the jury a ctually watched the v

ideotape during deliberations, and if so, w hether any members of the jury listened to the narration. Finally, Robinson has

failed to show how he w as prejudiced, if the jury in fact did listen to the narration. This iss ue is without merit. Having found no revers ible error in the recor d before us, we affirm the appellants’ convictions and the resulting sentences.

_______________________________ William M. Barker, Judge

CONCUR:

____________________________ Gary R. Wad e, Presiding Judge

____________________________ Curwood Wi tt, Judge