IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs November 22, 2000

STATE OF TENNESSEE v. DEBORAH GRAHAM & DENICE SMITH

Direct Appeal from the Circuit Court for Cocke County

Nos. 7145,7146 Rex H. Ogle, Judge

No. E1999-02248-CCA-R3-CD

 March 29, 2001

After a jury trial, a Cocke County jury found the Defendants, Deborah Graham and Denice Smith,

guilty of the first degree murder of Aaron Smith. Following a sentencing hearing, the trial court

sentenced both Defendants to life imprisonment with the possibility of parole. In this appeal as of

right, the Defendants raise the following issues: 1) whether the trial court erred in not dismissing the

indictments because of the State's failure to provide the Defendants with a speedy trial; 2) whether

the trial court erred by allowing the State to decide not to consolidate Alexandro Rivera’s case with

the Defendants’ case, because of a potential Bruton problem, without first granting the Defendants

an opportunity to be heard on the issue; 3) whether the trial court erred in failing to sever Defendant

Smith’s case from Defendant Graham’s case; 4) whether the trial court erred in consolidating

Defendant Graham’s case with Defendant Smith’s case; and 5) whether the evidence was sufficient

to convict each of the Defendants of first degree murder. After a thorough review of the evidence

and the applicable law, we affirm the decision of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

THOMAST.WOODALL,J., delivered the opinion of the court, in which GARY R.WADE, P.J., and JOE

G. RILEY, J., joined.

R.B. Baird, III, Rogersville, Tennessee, for the appellant, Deborah Graham; and Denise Terry

Stapleton, Morristown, Tennessee, for the appellant, Denice Smith.

Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney

General; Al Schmutzer, District Attorney; W. Brownlow Marsh, Assistant District Attorney; and

James B. Dunn, Assistant District Attorney, for the appellee, State of Tennessee.

OPINION
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FACTS

Harry Smith, the victim’s father, testified that, at the time of the murder of his son, Aaron

Smith, he and his wife operated a campground called Camprite Acres. Aaron Smith and Defendant

Smith were married and lived in a house on the campgrounds. (Defendant Smith and Defendant

Graham are twin sisters.) The campsite had a gated entrance, which required those using the

campgrounds to have a key card to gain entrance, and Defendant Smith had one of these key cards.

In 1995, Harry Smith began to notice that Defendant Smith and the victim were experiencing marital

problems. Later, the victim moved in with his parents, while Defendant Smith continued to live in

the marital home. At some point, the victim filed for divorce. Subsequently, Defendant Smith also

filed for a divorce and a custody battle ensued. Following Aaron’s death, Harry Smith and his wife,

Cleta, attained custody of their grandchildren, Brittany and Joshua. 

Smith further testified that, on July 23, 1997, he left home at approximately 4:20 p.m., but

the victim was not home at this time. He later returned at 6:00 p.m. to find a shoe sitting on a little

rock wall that ran along the walkway. As he drove up the walkway, Smith saw the victim’s body

laying on the sidewalk. He got out of his truck and went into the house to call 911, where he found

that someone had completely ransacked the house. As he waited for the police to arrive, he was

careful not to touch anything. Smith noticed that someone had removed the covering from an air

vent, which he found strange, because he formerly hid his money in a similar place, when he lived

in Florida. Smith stated that the victim and Defendant Smith knew about his practice of hiding

money in the air vent.

Smith also told the jury that he owned a .357 magnum pistol, which he normally stored under

a table in the garage. After finding his son dead, Smith found his .357 magnum out of place. Smith

testified that he also had three watches missing. On cross-examination, Smith testified that, on the

day of the murder, he was working on the road by the gate and did not see anyone come in or out of

the campgrounds. On the day after the murder, Defendant Smith called, identified herself and asked

about the victim, but Smith gave the phone to Agent Davenport of the Tennessee Bureau of

Investigation (TBI). 

Robert Caldwell, the Chief Detective of the Cocke County Sheriff’s Department, testified

that he went to Camprite Acres Campground to investigate the murder of Aaron Smith. When

Caldwell arrived at the Smith home, he saw the body of Aaron Smith lying on the walkway leading

to the house. Caldwell, along with Agent Davenport of the TBI, requested an autopsy of the

victim’s body. Dr. Cleland Blake performed the autopsy. Caldwell also requested that the TBI

Crime Investigation Team help with the investigation.

Dr. Cleland Blake, an Assistant State Chief Medical Examiner, testified that he received a

request to perform an autopsy on the victim. Dr. Blake found three gunshot wounds on the victim’s

body--two to the head and one to the trunk. Dr. Blake discovered that one head wound destroyed

the victim’s brain and served as the only immediately lethal wound to the victim’s body. The second

wound, which entered the front portion of the right ear, went through the ear and was not lethal and

hit no vital “structures”. The third wound (also not lethal) entered the left rear portion of the victim’s
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body at waist level and exited through the front right side of the victim’s chest. Dr. Blake concluded

his testimony by noting that the victim received two gunshot wounds from the back (i.e., the shots

to the head and the waist) and one from the front (i.e., the shot to the ear).

Kelly Smith, a TBI forensic scientist, testified that she was a member of the Violent Crime

Response Team that went to Camprite Acres Campground to document, preserve and collectforensic

evidence. When Agent Smith and her team arrived at the Smith home, she saw a walkway leading

to the front of the house and another entrance through the garage. Agent Smith stated that someone

had removed the victim’s body before her team arrived at the scene. The team used yellow markers

to mark the location of evidence before they packaged the evidence. Agent Smith’s team marked

evidence outside the home and then entered the interior of the home through the garage. The team

collected the evidence and took photographs of the evidence found at the scene. Specifically, the

team collected a sample of reddish-brown stains (later stipulated as human blood), a spent bullet and

a handgun (stipulated as the gun from which the spent bullet was fired). Agent Smith also found a

pair of handcuffs on a chair in the living room of the home. Agent Smith made sketches of the crime

scene, which the State introduced into evidence, along with several photographs made of the interior

and the exterior of the home. Agent Smith told the jury that several pieces of clothing and other

articles were scattered throughout the house. The State later recalled Harry Smith and he testified

that he had never before seen the handcuffs found by Agent Smith’s team. Further, Harry Smith

stated that the handcuffs did not belong to his son or anyone else in his family.

Hoyt Phillips, a latent fingerprint examiner with the TBI, testified that he examined evidence

taken from the Smith home. Phillips stated that he examined the .357 magnum found at the crime

scene, but no readable latent fingerprints were found on the gun. Phillips could not say whether any

fingerprints may have been wiped off the gun. Also, Phillips testified that he was unable to recover

any readable latent fingerprints from the handcuffs found at the crime scene. Of all the evidence

examined by Phillips, he found four identifiable prints belonging to the victim, Aaron Smith. 

Sharon Jarvis testified that she kept Defendant Smith’s two children at her in-home daycare

center during the summer of 1996. Jarvis told the jury that Defendant Smith told her about the

divorce and custody battle that Defendant Smith and the victim were going through. Jarvis stated

that Defendant Smith told her on three different occasions that if Aaron got custody of the children,

she would kill Aaron or have him killed before she would lose her children. Jarvis testified that

Defendant Smith told her these things once on the telephone and twice in Jarvis’ home. Jarvis

further explained that during these conversations, Defendant Smith would be very emotional and

“adamant” about her intent to prevent the victim from attaining custody of the children. However,

Jarvis did not report or tell anyone about Defendant Smith’s threats or intentions. On crossexamination, Jarvis testified that the three conversations she had with Defendant Smith occurred a

year before the death of Aaron Smith. Jarvis further testified that she believed the statements made

by Defendant Smith, but also stated that she did not think Defendant Smith would actually carry out

the threats. Finally, Jarvis stated that the last time she saw Defendant Smith was when Defendant

Smith came to Jarvis’ home to get a refund on two days worth of daycare and to ask Jarvis to testify

at the divorce hearing.
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Charles Jack Snyder testified that he was working at the post office in Gatlinburg, Tennessee,

when he received a phone call from a Carl Sanders. Sanders said he was from Bismark, North

Dakota, and that he was calling from a pay phone. Sanders told Snyder that an express mail package

containing drugs and addressed to an Aaron Smith would be coming to the post office. Sanders

supplied Snyder with the special delivery number for the package. When the package arrived,

Snyder gave the package to Scott Ginsell, the acting supervisor, and the two contacted the postal

inspectors. Russell Fallis, a postal inspector, retrieved the package.

Russell Fallis testified that he went to Gatlinburg to investigate an alleged shipment of drugs.

Fallis contacted Randy Parton and Richie McMahan, agents with the Fourth Judicial District Task

Force, to assist him with the investigation. When Fallis arrived at the post office in Gatlinburg, he

spoke with Charles Snyder and got the information about the phone call Snyder had received. Fallis

examined the package, addressed to “Aaron Smith, Earthquake Museum International, 653 Parkway,

Gatlinburg, Tennessee 37738.” The package was from “S. Jones, 1411 Peachtree Circle, Atlanta,

Georgia.” Fallis later discovered that the return address did not exist. However, Fallis determined

that the package was mailed from the Dr. Martin Luther King Post Office in Miami, Florida. 

Fallis further testified that he did not open the package immediately, because he needed a

search warrant. Fallis posed as a postal carrier and delivered the package, intact, to Aaron Smith at

the Earthquake Museum. As Fallis approached Aaron Smith, Smith was sitting at the entrance to

the Earthquake Museum ride taking tickets and money. Fallis asked, “Are you Aaron Smith?” and

Smith said, “Yes.” Aaron Smith signed for the package, and as Fallis walked away, he saw Smith

open the package. At that point, the Task Force agents approached Aaron Smith and identified

themselves as narcotics agents. Fallis returned and identified himself as a postal inspector. Smith

immediately yelled, “I’ve been set up,” and then called for his boss. Smith allowed Fallis and the

agents to examine the inner envelope found in the package, and they found “two extremely small

Ziploc bags that had a yellowish-whitish powder substance” in them. The writing on the inner

envelope read, “To Aaron Smith, next time the price goes up.” Fallis turned the powdery substance

over to the drug agents for testing. Later, the TBI lab identified the substance “as being cocainebase[d], a Schedule II controlled substance.” Fallis sent the package and the inner envelope to

Memphis to be checked for fingerprints. Bobby Ewing, of the Memphis crime lab, examined the

package. Aaron Smith was never arrested for the drugs found in the package.

Bobby Ewing, a forensic latent print analyst for the U.S. Postal Service Memphis Laboratory,

testified that he examined the express delivery package sent to Aaron Smith. Ewing stated that he

found no readable prints on the package itself; however, he did find five readable prints on the label

of the package. Ewing testified that he received a ten roll fingerprint card signed by Defendant

Deborah Graham, which Officer Rick Russell had taken. Ewing determined that the latent

fingerprints found on the original label of the package were the finger impressions of Defendant

Graham. He also developed fingerprints from the inner envelope, and found that “six latent

fingerprints of value for identification purposes” belonged to Defendant Graham. On crossexamination, Ewing testified that, while other smudges or impressions were on the materials he

examined, “all latent prints that were of value for identification purposes” belonged to Defendant

Graham. 
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Melanie Hearst and Christen Latham testified that they worked with Defendant Smith in the

dental office of Dr. Steve Madison. Hearst and Latham stated that often Defendant Smith told them

about the marital difficulties she was having with the victim, Aaron Smith. A couple of years

before the victim’s death, Defendant Smith told Latham that Aaron Smith had choked her while they

were on a cruise. Defendant Smith also told Latham that Aaron Smith was abusive to the two

children. Hearst and Latham testified that, more than once, Defendant Smith said that, if Aaron

Smith got custody of the children, “she would kill him or have him killed.” Hearst testified that as

the custody hearing neared, Defendant Smith became more upset and distraught. Latham further

testified that, on July 17, 1997 (six days before the homicide), Defendant Smith came to the dental

office to pick up her check, and she appeared upset and shaken. Defendant Smith’s car was packed

and her father was with her in another vehicle. 

On cross-examination, Hearst told the jury that she often saw bruises on Defendant Smith,

which the Defendant said Aaron Smith had caused. Also, Hearst and Latham admitted that they

never believed Defendant Smith would actually kill Aaron Smith. Hearst thought that Defendant

Smith was “just under pressure and she was just stressed,” when she spoke those words. Neither

Hearst nor Latham reported this information to the police. 

Next, twelve-year-old Brittany Smith (the daughter of the victim and Defendant Smith)

testified. She stated that, two days after a court had granted custody of her and her brother (Joshua)

to Aaron Smith, Defendant Smith took them to Florida to see Defendant Graham (Defendant Smith’s

twin sister). Her grandfather, Don Graham, accompanied them. They drove through the night and

arrived at a motel in Miami. At some point, they met Defendant Graham, two different men who

were named “George,” and an “Alex,” behind a place called The Golden Nugget. While Defendant

Smith and Don Graham talked with the men, Defendant Graham took Brittany and Joshua to the

beach for about an hour. During her testimony, Brittany also identified a photo of “Alex,” who was

later identified as Alexandro Rivera.

Brittany further testified that, while they were in Florida, they stayed at The Driftwood motel.

Also, during this time, Defendant Smith purchased another car. At some point, Alex, Defendant

Graham and both Georges left in Defendant Smith’s new car and did not return for two or three days.

During that same period, Defendant Smith also left for a day. Late one night, the Defendants, Alex

and one of the Georges returned to the motel, while Brittany and Joshua were asleep. Brittany stated

that loud speaking awakened her and she overheard Defendant Graham say “they hurt somebody.”

Then, Defendant Smith said, “it was easy,” and Alex replied, “No, we’ve killed somebody.” Brittany

never heard whom they had killed.

Brittany also recalled that, before everyone left for those couple of days, Alex “had a pair of

handcuffs in his back pocket.” However, when she next saw Alex, he no longer had the handcuffs.

Brittany testified that she noticed that Alex was wearing one of her “papaw’s [Harry Smith] watches”

and that Defendant Graham was wearing a pink ice ring that belonged to her “mamaw” (Cleta

Smith). Two days later, Defendant Smith took the children to Michigan, and they stayed at the home

of Brittany’s Aunt Marian and Uncle Jerry. At some point, Aunt Marian brought Brittany and Joshua

back to Tennessee, where they currently reside with their grandparents, Harry and Cleta Smith. On
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cross-examination, Brittany testified that they were in Florida for approximately five days. Also,

Brittany stated that Defendant Graham was with her and Joshua almost every day, during the five

days they were in Florida. Brittany recalled some things they did in Florida, including going with

Defendant Smith to rent a car, but she was unable to recall specific activities. Brittany testified that

she first learned of her father’s death while she was in Michigan. 

The parties stipulated that Defendant Smith rented a 1996 Buick Regal from Alamo Rentals

in Miami from July 21, 1997 to July 28, 1997. The mileage on the car was 25, 734, when rented,

and 28, 210, when returned. Defendant Smith signed for the car in her own name and provided her

Tennessee Driver’s License, her home address, and her work address to the employees of Alamo.

Vernon Brown testified that he and his wife own a lot at Camprite Acres, which the victim

sold to them. Brown stated that they were at the campground the day someone killed Aaron Smith.

Brown testified that, at approximately 4:00 that afternoon, he and his wife were walking to the pool,

when they saw Harry Smith leaving his home. Then, Brown noticed two people sitting at a picnic

table on the deck of a trailer. Brown could only see that one person was blond and was wearing

shorts. As Brown and his wife prepared to leave the pool and bath house, they noticed someone (it

appeared to be a man) knocking on Harry Smith’s door. (This was about fifteen minutes after they

had been at the pool.) Brown and his wife returned to their trailer. Between 4:30 and 5:00 p.m.,

Brown heard three gunshots coming from the direction of Harry Smith’s home. Brown was sure of

the time, because he and his wife had scheduled to have dinner with some neighbors at 5:00 p.m. and

it was 5:00 when they arrived at the neighbor’s house. Brown also testified that, because they often

heard gunshots around the campgrounds, he did not think anything was wrong when he heard the

three gunshots. However, Brown later learned that someone had been murdered when the police

came to the neighbor’s camper.

Brown stated, on cross-examination, that he told the police that the man he saw knocking on

the Smiths’ door was a “skinny white male with long dark hair.” Also, Brown testified that the

distance from the pool to Harry Smith’s house was about 200 feet. On redirect, Brown stated that

he had also seen a white car parked on one lot. Brown further testified that at around 5:00 p.m. he

heard a car leaving in a hurry. At approximately 5:15 p.m., Brown learned from the neighbor’s

daughter that the white car was no longer there. 

State Trooper Eddie Pulley testified that he worked in McMinn County. Pulley testified that,

on July 23, 1997 at 7:41 p.m., he issued a ticket to a David Antonio Rivera of Miami, Florida.

Pulley stated that Rivera was driving a white, 1996 four-door Buick. Pulley testified that he could

not remember Rivera’s face or whether Rivera was traveling with one or two females. 

Special Agent Ron Raccioppi, of the Florida Department of Law in Miami, testified that in

August of 1997, Agent Davenport of the TBI contacted him about “coming to Florida to do a followup investigation on a homicide.” Specifically, Agent Raccioppi and Agent Davenport were looking

for information on an “Alex,” a Deborah Graham and the activities of Denice Smith, while she was

in Florida. They received information from a club owner regarding the tag of a vehicle in which

Alex had just left the club. The tag number led the agents to a LaShawn Taylor in Miami. The
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agents set up surveillance, which finally led them to the man named Alex, who agreed to help the

agents in their investigation. The agents learned, from Alex’s driver’s license (which was later

determined to be a false identification) and social security card, that his purported name was David

Antonio Rivera. 

Raccioppi further testified that he and Agent Davenport learned that the address on David

Rivera’s driver’s license was the same as LaShawn Taylor’s address. Also, Raccioppi stated that

the Martin Luther King Post Office in Miami is 300 yards west of Rivera and Taylor’s address. The

agents conducted their surveillance of Taylor’s home from the parking lot of the Martin Luther King

post office. Finally, Raccioppi testified that their investigation revealed that someone had taken

Defendant Graham to the airport, where she boarded a flight to New York.

David Hutchison, a Criminal Investigator with the Cocke County District Attorney’s Office,

testified that he traveled to New York to locate and arrest Defendant Graham. On August 22, 1997,

Hutchison arrested Defendant Graham and gave her the Miranda admonitions. Defendant Graham

waived her Miranda rights and gave the New York Police Department and Investigator Hutchison

a signed and written statement, which Hutchison read into the record at trial.

In her statement, Defendant Graham said that she and Alex borrowed the car, rented by

Defendant Smith, to travel to Michigan. Alex and Defendant Graham planned to stop in Tennessee

and pay a visit to the victim. Defendant Graham stated that Alex wanted to teach Aaron Smith a

lesson, because Alex had heard that Aaron Smith was abusive to Defendant Smith and their children.

Graham used Defendant Smith’s gate card to gain entrance to the campgrounds and show Alex

where Aaron Smith lived. Graham and Alex stayed at the campground for about ten minutes. Then,

Alex drove Graham back to Gatlinburg and let her out in front of the Ramada Inn. Graham said that

she thought that Alex was “just going to talk to Aaron and ask him if he wanted to fight someone

besides women and children.” Rivera returned two hours later, pale and upset. As they drove

toward the interstate, Alex told Graham that he had gone back to the Smith house and entered

through the garage. As Alex was going through the house, he found several guns. Aaron Smith

returned home unexpectedly and surprised Alex. Alex told Graham that “he [Aaron Smith]

surprised me. I had to cap him.” Alex shot Aaron three times and then Alex went back into the

house to make it look like someone had burglarized the home. Then, Alex threw two handguns in

the woods and kept one handgun for himself.

After hearing this, Graham said she could not go to Michigan, so the two returned to Florida.

When Graham arrived at The Driftwood motel in Miami, she discovered that her father, Defendant

Smith and Smith’s children had gone back to Tennessee to turn themselves in to the police. Graham

returned the rental car. She told Hutchison that Alex said “[I]f [she] ever told what he had -- what

he had done, that he would let his boys know and they would take care of [her] whole family.”

Graham stated that she never saw Alex with any jewelry after he killed Aaron, but she said that he

had given her a “gray plastic bag containing several gold necklaces and bracelets,” which he had

planned to give to LaShawn Taylor. Further, Graham said that on the way back to Florida, Alex got

a speeding ticket in McMinn County. The last time Graham saw Alex was August 2, 1997, when

LaShawn Taylor took Graham to the Miami airport to catch a flight to New York.
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On cross-examination, Investigator Hutchison acknowledged that, initially, Graham told him

several times that she had not killed anyone. Additionally, Hutchison admitted that he told Graham

that someone had identified her, as being at the campground pool the day Aaron Smith was killed,

although this was not true. On redirect, Hutchison testified that, before Graham gave her written

statement, she stated that she and Alex had not gone to Tennessee, but straight to Michigan to visit

friends. However, when Hutchison told Graham that someone had seen her by the campground

pool, Graham decided to change her story.

LaShawn Taylor testified that she and Alexandro Rivera have a son together and that they

lived together for a short time in Miami, Florida. Taylor said that she met Defendant Graham during

the summer of 1997, before Alex and Graham went to Tennessee together. After Graham and Alex

returned to Miami, Taylor next saw Defendant Graham, when Graham came to Taylor’s home in a

white car to see Alex. Alex went outside to talk with Graham, while Taylor waited at the door.

Taylor testified that she overheard Alex tell Graham “to get the car out of there.” The next time

Taylor saw Graham, Graham stayed two nights at Taylor’s home. During this stay, Alex and

Graham “were very secretive, always talking, going to the phones [pay phones], you know,

whispering.” Taylor said that Graham was constantly calling her father. At the end of the two days,

Taylor took Graham to the airport to catch a flight to New York. Several days after Graham left, the

police stopped Taylor and Rivera. Taylor further testified that the Florida driver’s license carried

by Alex Rivera, bore Alex’s picture, but that the name on the license (David Rivera) was Alex’s

brother’s name. Taylor also testified that she had gone with Alex to a pawn shop, where he

redeemed several items, including a Noah’s Ark bracelet.

Robert Latta, an employee at the Cash In Pawn Shop in Miami, testified that Alex Rivera

pawned an Elgin pocket watch, a gold Noah’s Ark bracelet, two women’s freeform rings and a

Nikon camera. Alex Rivera retrieved these items on August 7, 1997. 

Paul Dosler, a detective with the Port Authority Police Department in New York, testified

that he aided Tennessee investigators with the arrest of Defendant Graham. They arrested Graham

at the home of Martin Giovi in Astoria, New York. Dosler testified that he recovered a bag of

costume jewelry from Giovi’s home, which contained 11 pieces of jewelry. In court, Dosler

identified the 11 pieces of jewelry and described the bag that contained the jewelry as “a graycolored plastic bag.”

Cleta Smith, the victim’s mother, identified the costume jewelry recovered by Paul Dosler

from Martin Giovi’s apartment, as the jewelry taken from her home the same day someone killed

Aaron. She also told the jury that several other items were taken from her home, including a pink

ice ring, a Noah’s Ark bracelet and a Nikon camera.

Martin Giovi testified that he and Defendant Graham had previously lived together and that

during this time, Graham asked him to kill Aaron Smith about three or four times, but Giovi refused.

Giovi testified that, while Graham was living with him in New York in August of 1997, she was

constantly using a pay phone to call her father and sister. Giovi stated that Graham behaved so

nervously that he finally asked her what was wrong. Graham told Giovi, “[I]t is finally done. And
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[Giovi] said, ‘What’s done?’” Graham replied, “Aaron is dead.” Giovi testified that Graham told

him that she and Don Graham (the Defendants’ father) had paid someone to kill Aaron. Giovi

further testified that Graham told him that she had gone to Aaron’s home with a man from Florida,

and they had shot Aaron in the driveway or on the walkway. Shocked by Graham’s news, Giovi left

the apartment and when he returned, he saw numerous police officers in front of his house. The

police arrested Graham. Later, Giovi allowed the police to return to his apartment and he gave them

a bag containing costume jewelry, which Graham had left in Giovi’s apartment. 

Shannon Jarnigan testified that, while she was an inmate in the Cocke County Jail, Defendant

Smith said “she hired her twin sister’s boyfriend to kill her husband,” because her husband had

sexually molested the children and physically abused her. Jarnigan also met Defendant Graham, who

told Jarnigan that her boyfriend, Alex, had accidentally shot Aaron Smith. Jarnigan said that Graham

told her that she (Graham) was afraid of Alex and that, after the shooting, Alex would not let

Graham out of his sight. On cross-examination, Jarnigan admitted that the State had charged her

with felony murder and aggravated robbery in an unrelated case and that, after she gave the

authorities the information she had on this case, she pled guilty to two counts of attempted

aggravated robbery. Jarnigan acknowledged that she told her attorney that she wanted to use this

information to help herself. However, Jarnigan denied making any deals with the State. The State

subsequently recalled Detective Robert Caldwell, who testified that the State reduced the charges

in Jarnigan’s case because an autopsy was never performed on the deceased victim’s body and the

other victim (the key witness) could not be found.

Sandra Strange testified that she knew Defendant Smith from Smith’s visits to Tanfastic

Tanning Salon. Strange told the jury that, once, Smith asked Strange if she knew someone who

could kill her husband. Strange further stated that Smith said that Aaron Smith was abusive to her

and the children. Also, Smith told Strange that, if the court gave Aaron Smith custody of the

children, she would either run away with the children or have Aaron killed. However, Strange

admitted that she did not take Smith’s statements seriously. 

The State rested its case-in-chief at this point.

Diane Levy, the Executive Director of Safe Space (a domestic violence program), testified

that Defendant Smith contacted her organization in 1996 out of concern for the safety of her children.

Levy testified that Smith also contacted Safe Space after Judge Vance rendered his decision in the

divorce and custody case. On July 25, 1997, Levy spoke with Smith, who stated she was returning

to Tennessee to turn herself in to the police. Levy advised Smith to contact the Public Defender’s

office.

Judy Laws testified that she, Defendant Smith and Shannon Jarnigan were simultaneously

incarcerated at the Cocke County Jail in February of 1998. One morning, Laws observed Jarnigan

going through Smith’s personal papers. Laws testified that Jarnigan said, “I’m going to get

something, anything I can get to make a deal with.” Jarnigan further stated, “My attorney says if I

can get something on him (sic), that he’ll cut me some slack and make a deal for me.” Finally, Smith

got out of the shower and took the papers away from Jarnigan. On rebuttal, the State recalled
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Detective Robert Caldwell again and he testified that, on November 7, 1997, he took Jarnigan’s

statement about Defendant Smith saying that she hired her twin sister’s boyfriend to kill her husband.

At the close of all the proof, the judge charged the jury on first degree murder, second degree

murder and facilitation of first and second degree murder. Following deliberations, the jury

convicted both Defendants of first degree murder. During the sentencing phase, the jury rejected the

State’s one enhancement factor, as applied to each Defendant, and sentenced both Defendants to life

imprisonment with the possibility of parole. 

ANALYSIS

I. Right to a Speedy Trial

In their first issue, the Defendants assert that the trial court violated their right to a speedy

trial as guaranteed under the United States Constitution, the Tennessee Constitution, and Tennessee

Code Annotated § 40-14-101, and that the charges against them should be dismissed pursuant to

Tenn. R. Crim. P. 48. The State concedes the appropriateness of an inquiry into the delay between

the Defendants’ arrest and their trial on June 16, 1999, but argues that the delay was not due to

improper actions by the State and was not prejudicial to the Defendants. Therefore, the State's

position is that the Defendants’ right to a speedy trial was not violated. After a review of the record,

we are unable to find that the Defendants’ right to a speedy trial was violated.

The record is sparse concerning this issue. On appeal, allegations found in pleadings and

statements made by counsel during a hearing or the trial are not evidence. See State v. Draper, 800

S.W.2d 489, 493 (1990). We are unable to consider either in lieu of a verbatim transcript. The same

is true for the recitation of facts and argument contained in appellate briefs submitted to this Court.

Id.

When the record is incomplete, and does not contain a transcript or statement of what

transpired in the trial court with respect to the issue raised on appeal, we are precluded from

considering that issue. Id. Further, an appellate court is also prohibited from considering the

exhibits attached to motions and supplements to the motions that are included in the “technical”

record. State v. Bennett, 798 S.W.2d 783, 789-90 (Tenn. Crim. App. 1990). This Court can only

consider an exhibit or an attachment to a pleading that has been (a) received into evidence, (b)

marked by the trial judge, clerk or court reporter as having been received into evidence as an exhibit,

and (c) included in the transcript transmitted to this Court. Id. Thus, in the absence of a complete

record on appeal, the appellate court must conclusively presume that the ruling of the trial judge was

correct. 

In the instant case, the record transmitted to this Court did not contain a transcription of the

relevant proceedings in the trial court concerning this issue. The Defendants failed to provide this

Court with evidence from a hearing or a statement of the evidence from a proceeding, wherein the

trial court denied the Defendants’ motion for a speedy trial. Concerning the speedy trial issue, the

record on appeal merely consists of an order overruling Defendant Smith’s “motion for a speedy trial
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or in the alternative to set bond,” and statements made by the trial court concerning the denial of the

Defendants’ motion to dismiss for not having a speedy trial, at another pre-trial motion hearing.

However, the order overruling Defendant Smith’s motion does not show what, if any, findings were

made by the trial court regarding the motion. Moreover, the following colloquy between the trial

court and the attorneys, at another pretrial motion hearing, provides no basis for consideration of the

Defendants’ assertions on appeal:

The Court: Yeah. And so it’s been set. I’m not--look, folks, the issue on

a speedy trial the Court’s already dealt with. I set it [the trial

date]. You all had conflicts. I re-set it. The State had a

conflict at one time and I’ve done the best I can so whatever

happens, happens.

Mr. Baird [Graham’s Counsel]: My point was, Judge, I’ve not seen an order to

that regard in the file so I just wanted to bring

that to the Court’s attention.

The Court: Yeah, well, I need an Order to reflect all that.

Gen. Marsh: We’ll have it for you today.

The Court: So the issue on the Motion for a Speedy Trial, the Court’s

already dealt with and I’m not going to deal with that again.

Thus, absent proof and findings, we presume the trial court ruled correctly on the issue

pertaining to Defendants’ right to a speedy trial.

II. Right to be heard on whether a Bruton problem prohibited the consolidation of

Alexandro Rivera’s trial with the Defendants’ Trial

Next, the Defendants contend that the trial court violated their rights to procedural due

process by depriving them of an opportunity to be heard on the issue of whether a Bruton violation

existed, which would serve to exclude Rivera from being tried jointly with them. See Bruton v.

United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) (holding it a violation of a

defendant’s Sixth Amendment right to confront and cross-examine witnesses, when a court admits

evidence of pretrial statements made by a co-defendant to implicate the defendant’s guilt). As a

preliminary matter, we note that the Defendants have waived this issue by failing to include it in their

respective motions for a new trial. Tenn. R. App. P. 3(e); State v. Maddox, 957 S.W.2d 547, 553

(Tenn. Crim. App. 1997). Even if not waived, Defendants would not be entitled to relief on this

issue. 

Article I, § 9 of the Tennessee Constitution provides that "the accused hath the right to be

heard by himself and his counsel." Based upon the record, we find that while the Defendants had
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the right to be heard, neither defense counsel requested an opportunity to be heard on whether a

Bruton problem existed. At the pretrial motions hearing, both defense counsel argued that Smith,

Graham and Rivera should either be tried all together or all separately. The State argued for the

consolidation of Graham and Smith’s cases pursuant to Tennessee Rules of Criminal Procedure 13,

given that the two were indicted separately. During the course of the State’s motion for

consolidation, the State explained to the trial court that, while it desired to try Graham, Smith and

Rivera jointly, Defendant Graham’s statement, identifying Rivera as the shooter, presented a Bruton

problem, which prohibited the consolidation of the three cases. The trial court accepted the State’s

assessment of the Bruton issue and ordered that Graham and Smith’s cases be consolidated. Thus,

the record indicates that the State never sought to join Rivera’s case with Defendant Smith’s and

Defendant Graham’s cases.

First, the Defendants challenge the State’s decision to consolidate their cases, without

consolidating Rivera. Rule 12 of the Tennessee Rules of Criminal Procedure requires that a request

to consolidate be raised prior to trial. Tenn. R. Crim. P. 12(b)(5). Rule 13 of the Tennessee Rules

of Criminal Procedure permits the trial court to consolidate the cases of defendants, when the State

could have opted to join the defendants in a single indictment. Tenn. R. Crim. P. 13(a). As such,

it is the State’s decision (as well as a defendant’s decision) whether to file a motion to consolidate

defendants. In this case, the State elected to move for a consolidation of Smith and Graham’s cases,

which was within the State’s prerogative. The State would have liked to join all three cases, but a

Bruton violation made it necessary for Rivera’s case to remain separate. In contrast, joinder of

Graham and Smith was clearly permissible under Rules 8(c) and 13(a) of the Tennessee Rules of

Criminal Procedure. Moreover, the Defendants were not entitled to a hearing on the State’s internal

decision to file or not to file a motion to consolidate. 

Second, the record indicates that the Defendants were present in court when the trial court

made the ruling addressing the Bruton issue. The Defendants offered no specific argument against

the State’s argument for the application of Bruton, as it related to Rivera. Therefore, because

Defendants failed to request an opportunity to be heard at the pretrial motions hearing and failed to

raise this issue in their motions for a new trial, we find no violation of their rights to due process.

III. Severance and Consolidation

Defendant Smith claims the trial court erred in denying her motion to sever her trial from

Defendant Graham’s trial. Defendant Graham claims the trial court erred in consolidating her case

with that of Defendant Smith, because the evidence against Smith was stronger. Essentially, each

Defendant argues that because the evidence against the other was more sufficient, joinder of their

trials produced a spill-over effect, which permitted one to be prejudiced by the multitude of evidence

against the other. The State contends the trial court acted properly, because the case against the

Defendants presented a “common scheme or plan,” which made consolidation permissible under

Rules 8, 13 and 14 of the Tennessee Rules of Criminal Procedure. We find that the trial court

properly consolidated the two cases, and properly denied Smith’s motion for a severance.

A. Defendant Smith’s Motion for Severance
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Defendant Smith contends that the trial court erred in refusing to grant her a severance from

Defendant Graham. She specifically complains that due to the overwhelming amount of evidence

against Defendant Graham, the trial court should have severed her case to prevent any prejudice to

her. We believe that the trial court properly declined to grant the severance. 

We review a trial court’s decision to deny or grant a severance of co-defendants for an abuse

of discretion. State v. Little, 854 S.W.2d 643, 648 (Tenn. Crim. App. 1992); see also, State v.

Moore, 6 S.W.3d 235, 238 (Tenn. 1999) and State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)

(holding that a trial court’s decision to sever offenses pursuant to Rules 8(b) and 14(b)(1) is to be

reviewed for an abuse of discretion). Absent an affirmative showing of prejudice, this Court will

not reverse the trial court’s exercise of sound discretion. State v. Ensley, 956 S.W.2d 502, 508

(Tenn. Crim. App. 1996). In Woodruff v. State, 164 Tenn. 530, 538-39, 51 S.W.2d 843, 845

(1932), our supreme court noted that: 

The state, as well as the persons accused, is entitled to have its rights protected, and

when several persons are charged jointly with a single crime, we think the state is

entitled to have the fact of guilt determined and punishment assessed in a single trial,

unless to do so would unfairly prejudice the rights of the defendants. 

Thus, the defendant bears the burden of showing that she was “clearly prejudiced to the point that

the trial court's discretion ended and the granting of [a] severance became a judicial duty.” Parham

v. State, 885 S.W.2d 375, 383 (Tenn. Crim. App. 1994). 

Severance of defendants is allowed pursuant to Rules 13(b) and 14(c) of the Tennessee Rules

of Criminal Procedure. Here, there is no indication that a severance was “necessary to achieve a fair

determination of the guilt or innocence of” the Defendants. Tenn. R. Crim. P. 14(c)(2)(ii) (2000).

Further, there is no evidence that a severance was required pursuant to Tennessee Rules of Criminal

Procedure 14(c)(1), permitting severance of co-defendants where aBruton violation would follow

(as with Rivera). The Defendants had been separately indicted for Aaron Smith’s murder. At the

pretrial motions hearing, the trial court, upon motion of the State, consolidated the Defendants’ cases

under Tenn. R. Crim. P. 13(a), which permits the consolidation of two or more indictments where

all defendants could have been joined in a single indictment. The trial court found that the

Defendants could have been joined in the same indictment, pursuant to Tenn. R. Crim. P. 8, because

each of the Defendants was charged with accountability for the murder of the victim and because the

offense charged showed signs of a common scheme or plan. Tenn. R. Crim. P. 8(c)(1) and (3)(i)

(2000). 

After a review of the record and the law, we are unable to find an abuse of discretion by the

trial court. In refusing to sever the Defendants’ cases, the trial court correctly applied the law and

reached a logical decision based upon the facts as they applied to the law. Defendant Smith has

failed to showthatshe suffered prejudice from her case being consolidated with Defendant Graham’s

case. Even assuming that the evidence at trial appeared to weigh more heavily against Defendant
-14-

Graham, there was a significant amount of evidence showing Defendant Smith’s involvement as the

one who solicited her twin sister (Defendant Graham) and Rivera to commit the homicide. The trial

court determined that the evidence of a common plan or scheme against the individual Defendants

would permit the jury to fairly determine the guilt or innocence of the Defendants, thereby

eliminating the need for severance. 

B. Defendant Graham’s Argument Against Consolidation

Defendant Graham argues that the trial court erred in consolidating her case with Defendant

Smith’s case. She contends that the evidence clearly showed that only Defendant Smith had a

motive for killing Aaron Smith. She asserts that because the jury found that the evidence was

insufficient to show that this murder was committed for promise of remuneration, there is no

evidence to show that she had any motive for participating in this murder. She further claims that

the unreliable testimony of LaShawn Taylor and Martin Giovi made the State’s case against her

weak, compared to the case against Defendant Smith. Thus, Graham argues that she was prejudiced

by the consolidation of her case with Smith’s case. We disagree.

Joinder is permissible when each defendant “is charged with accountability for each offense

included.” Tenn. R. Crim. P. 8(c)(l ) (2000). However, the trial court may grant a severance prior

to trial if it is necessary “to promote a fair determination of the guilt or innocence of one or more

defendants.” Tenn. R. Crim. P. 14(c)(2)(i) & (ii) (2000). As noted above, the decision to grant a

severance is within the trial judge’s sound discretion, State v. Little, 854 S.W.2d at 648, and the

exercise of that discretion will not be reversed absent an affirmative showing of prejudice, State v.

Ensley, 956 S.W.2d at 508. Here, each of the Defendants was charged with accountability for the

murder of Aaron Smith. Therefore, consolidation of the Defendants’ cases was permissible and

within the sound discretion of the trial court. Defendant Graham has failed to demonstrate an

affirmative showing of prejudice resulting from the consolidation of her casewithDefendant Smith’s

case. 

Finally, we find that the trial court protected the Defendants against the risk of prejudice or

a possible “spill-over effect,” by giving the following jury instructions:

All right, you are trying two separate cases that have been

consolidated for trial. The first indictment, #7145, charges the Defendant

Deborah Graham primarily with the offense of first degree murder. The

second indictment, #7146, charges Denice Graham Smith with the offense of

first degree murder. Both indictments will be handed to you as you consider

these charges during your deliberations. In considering each case, it is your

duty to weigh carefully the evidence as it applies to each case. If there be

evidence that sheds light upon the guilt or innocence in one case, but is

immaterial or irrelevant as to the other, be certain that you do not permit the

evidence to receive any consideration or have any bearing on your verdict in

cases in which it cannot apply.
-15-

In other words, each indictment -- or, in other words, please consider

each indictment and each -- each defendant separately, and consider only that

portion of the evidence that bears on a precise charge. Do not let your verdict

of guilt or innocence on one charge affect your verdict on the other. Your

judgment must be independently made as to each charge and each defendant.

We must presume that the jury complied with the trial judge's instruction. Richardson v.

Marsh, 481 U.S. 200, 211 (1987); State v. Blackmon, 701 S.W.2d 228, 233 (Tenn. Crim. App.

1985), perm. to appeal denied, (Tenn. 1985). The record does not demonstrate that the Defendants

sustained prejudice as a result of the joint trial. Further, the trial court did not abuse its discretion

by finding that the evidence presented a “common plan or scheme” between the Defendants. Thus,

the Defendants are not entitled to relief on this issue.

IV. Sufficiency of the Evidence

Both Defendants contend that the evidence was insufficient to support their convictions for

first degree murder. We disagree.

The proper inquiry for an appellate court determining the sufficiency of evidence to support

a conviction, is whether, considering the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

See Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Hall, 8

S.W.3d 593, 599 (Tenn. 1999). “A guilty verdict by the jury, approved by the trial court, accredits

the testimony of the witnesses for the State and resolves all conflicts in favor of the prosecution’s

theory.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions about the credibility of

witnesses, the weight and value to be given the evidence, as well as all factual issues raised by the

evidence are resolved by the trier of fact, and this Court does not reweigh or reevaluate the evidence.

Id. Nor may this Court substitute its inferences drawn from circumstantial evidence for those drawn

by the trier of fact. See Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). 

The standard for appellate review is the same whether the conviction is based upon direct or

circumstantial evidence. See State v. Vann, 976 S.W.2d 93, 111 (Tenn. 1998). A conviction may

be based entirely on circumstantial evidence where the facts are "so clearly interwoven and

connected that the finger of guilt is pointed unerringly at the Defendant and the Defendant alone."

State v. Smith, 868 S.W.2d 561, 569 (Tenn. 1993) (quoting State v. Duncan, 698 S.W.2d 63, 67

(Tenn. 1985)). A verdict of guilt removes the presumption of innocence and replaces it with a

presumption of guilt, and on appeal the defendant has the burden of illustrating why the evidence

is insufficient to support the verdict rendered by the jury. Id.; see also State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982). In contrast, the State on appeal is entitled to the strongest legitimate view

of the evidence and all reasonable and legitimate inferences which may be drawn from the evidence.

See Hall, 8 S.W.3d at 599; Bland, 958 S.W.2d at 659. 

Under Tennessee law, first degree murder is “[a] premeditated and intentional killing of

another.” Tenn. Code Ann. § 39-13-202(a)(1) (1997). A person acts intentionally “when it is the
-16-

person’s conscious objective or desire to engage in the conduct or cause the result.” Tenn. Code

Ann. § 39-11-106(a)(18) (1997). “‘[P]remeditation’ is an act done after exercise of reflection and

judgment.” Tenn. Code Ann. § 39-13-202(d) (1997). Although premeditation requires that “the

intent to kill must have been formed prior to the act itself,” “[i]t is not necessary that the purpose to

kill pre-exist in the mind of the accused for any definite period of time.” Tenn. Code Ann. §

39-13-202(d) (1997). The element of premeditation is a question for the jury which may be inferred

from the circumstances surrounding the killing. State v. Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App.

1993). Tennessee courts have delineated several circumstances that may be indicative of

premeditation, including the use of a deadly weapon upon an unarmed victim, Bland, 958 S.W.2d

at 660, facts from which motive may be inferred, State v. Bordis, 905 S.W.2d 214, 222 (Tenn. Crim.

App. 1995), and calmness immediately after the killing, Bland, 958 S.W.2d at 660.

Accomplice liability provides a basis for the convictions of Defendants Graham and Smith.

Tenn. Code Ann. § 39-11-402(2) (1997). In State v. Maxey, 898 S.W.2d 756, 757 (Tenn. Crim.

App. 1994), this Court held that the statute attaching criminal liability for the conduct of another

requires proof of an “intentional” culpable mental state. Knowing, reckless, and negligent mental

states are insufficient. Tenn. Code Ann. § 39-11-302(a) (1997). For the evidence to be sufficient

to sustain a conviction under the theory of criminal responsibility for the conduct of another, there

must be proof that the Defendants intended, as defined in Tenn. Code Ann. § 39-11-302(a), to

promote or assist the commission of the offense, or to benefit in the proceeds or results of the

offense. Tenn. Code Ann. § 39-11-402(2). In addition, there must be proof that the Defendants

solicited, directed, aided, or attempted to aid another to commit the offense. Id. The jury may infer

the intent of the accessory from her “presence, companionship, and conduct before and after the

offense. . . .” State v. McBee, 644 S.W.2d 425, 428-29 (Tenn. Crim. App. 1982). 

A. Graham's Conviction

Taking the facts in a light most favorable to the State, Graham’s intent to kill the victim may

be inferred from her asking Martin Giovi to kill the victim. The proof further showed that Graham

had Rivera accompany her to Tennessee, in order to kill the victim. She drove the vehicle, rented

by Defendant Smith, from Florida to Tennessee and showed Rivera where the victim lived. After

the murder, Graham and Rivera drove back to Florida and returned the car to Alamo Car Rental.

Graham returned to Florida without alerting the authorities about the victim’s death. LaShawn

Taylor testified that Graham and Rivera were very secretive and nervous, after they returned to

Florida. Then, Defendant Graham fled to New York, while maintaining possession of Cleta Smith’s

jewelry. In New York, Graham stayed with Giovi and told him that Smith and her father paid

someone to kill the victim and that she (Graham) had accompanied the man to Tennessee, where

they shot the victim in the driveway. Graham was later arrested by the police and gave a statement

attesting to the above facts. Hence, a rational jury could have found that Defendant Graham intended

to assist with the commission of the murder of Aaron Smith.

B. Smith's Conviction
-17-

Reviewing the facts in a light most favorable to the State, Defendant Smith, on numerous

occasions, spoke of her intent to kill the victim or have him killed, if he were awarded custody of

the children. Likewise, Shannon Jarnigan (Smith’s cell mate) testified that Smith told her that she

hired Graham’s boyfriend (Rivera) to kill her husband. Moreover, Smith’s intent to kill her husband

can be inferred from her actions of driving to Florida to meet with Graham, renting the car Graham

and Rivera used to drive to Tennessee to commit the criminal act, discussing with Rivera and

Graham the fact that they had killed someone (in earshot of her daughter, Brittany Smith) and fleeing

to Michigan soon after the killing. Consequently, we hold that a rational trier of fact could have

found that Defendant Smith intended to promote and assist the commission of the murder of Aaron

Smith. The evidence was sufficient to show that Defendant Smith solicited the aid of Defendant

Graham and Rivera to commit the first degree murder of Aaron Smith.

Having reviewed the proof in the light most favorable to the State, as we are required to do,

we find that the evidence is legally sufficient to support the jury’s verdict as to both Defendants. The

jury resolved all issues of credibility in favor of the State, and this Court may not reconsider the

jury’s credibility assessments. See State v. Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993). The

Defendants are not entitled to relief on this issue.

CONCLUSION

Based upon the foregoing and the record as a whole, we affirm the judgments of the trial

court.

___________________________________ 

THOMAS T. WOODALL, JUDGE