# FILED
May 11, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE SEPTEMBER 1998 SESSION
STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9709-CC-00414

) ) Sevier County v. ) ) Honorable Rex Henry Ogle, Judge ) WILLIA M B. THURBLEY, ) (First degree murder) ) Appellant. )
For the Appellant : For the Appellee : Edward C. Miller John Knox Walkup District Public Defender Attorney General of Tennessee P.O. Box 416 and Dandridge, TN 37725 Elizabeth B. Marney Assistant Attorney Gener al of Tennessee 425 Fifth Avenue North Nashville, TN 37243-0493 Alfred C. Schmutzer, Jr. District Attorney General and Steven Hawkins Assistant District A

ttorney General 301 Sevier County Courthouse Sevierville, TN 3

7862

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge1 We note that numerous variat ions of th e defendant’ s last name appear t hroughout the record, fr

om Thurlby to Thurbly to Thorl by. Because t he defendant’ s name is spelled “ Thurbley” in the fi rst indict ment, we will

use that spel ling i n this opi nion. 2

O P I N I O N
The defendant, William B. Thurbley 1 , appeals as of right following his convictions by a j ury in the Sevier C ounty Circuit Court

for premeditated murder and felony murder committed in the per petration of a kidnapping. The defendant w as originall y indicted , as well, f or felon y murder co mmitted in the per petratio n of a rob bery, burglary or theft, but that charge was dismis sed by the trial court

at the close of proof. The defendant received life sentences for each conviction, but the trial court merged the convictions into one j udgment to reflect one life sentence to be served in the custody of the Department of Corr ection. The defendant presents the follow ing issues for our re view:

(1) whether the evi dence is insufficient to support a conviction for premeditated murder; (2) whether he was properly convicted of felony murder in the perpetrat ion of a kidnap ping; (3) whether the trial court erred by denying a continuance in the absence of a material defense witness; (4) whether the trial

court erred by failing

to declare a mistrial because of preju dicial an d irrelevan t testimo ny from two state’s witnesses; (5) whether the trial

court erred by allow

ing the state to cross-examine the defendant’s character witnesses regarding the defendant’s alleged prior bad acts; (6) whether the trial

court erred by not all owing testimony regarding the defendant’s tr ustworthiness around money and othe r valuable s and his re putatio n for hon esty; (7) whether the assis

tant district attorney

committed misconduct during closi ng argument; and (8) whether the trial

court erred by instr

ucting the jury on parole el igibility. We affirm the judgment of conviction.3 Santo Bimonte testified that he ow ns Santo’s Italian Restaur ant in Pigeon Forge. He said that he had known the victim, Tony Desanto, for eight to ten y ears and that the victim work

ed for him as a waiter. M r. Bimonte said that the vi ctim had been experiencing back problems and had been off work for two or three weeks befo re his death. He described the vi ctim as a perfectionist and a model employee. He stated that on the Thursday or Fri day before the victim’s death, he accompanied the victi m to Jerry Ward’s house because the victim was interested in buying Mr. W ard’s truck. Mr. Bimonte said the victim w as supposed to work on Fr iday, but the victim asked for an extra day off because of his back problems. Mr. Bimonte testif ied that the victim said he would be at work on Saturday at around 4:00 or 5:0 0 p.m. Mr. Bimonte said he became worried on Saturday when the victim did not show up for work, an d he asked a mutual friend, Robert Franklin, to check on the victim. Mr. Bimonte said that when Mr. Franklin could not find the v ictim, Franklin left a note on the victim’s car. Mr. Bimonte stated t hat he ne ver saw the vic tim upse t, angry or vio lent. He sa id the vict im always carried a dark gym ba g.

On cross-examination, M r. Bimonte said he did not know that the defendant was a friend of the victim. He said he did not know that the victim sold or smoked marijuana.

Deborah Bimonte testified that she was the dining room manag er at her husband’s restaurant, and her testimony was substantially similar to her husband’s testimony. She stated that the victim was of medium buil d and was not in very good physical condition. Sh e said the victim w as peaceful. On cross-exa mination, she stated that w

aiting tabl es can be phy sically demanding but

that she gav

e the victi m a small station.4 Robert Franklin testified that he and the victim had w orked together at the Edgewater Hotel. He

said that the victim had b ack problems and that he brought the victim a heating pad the week before the victim died. He said the victim moved slowly and was not muscular. He said that on Saturday, Januar y 20, 1996, Mr. Bimonte cal led him and told him that the vic tim had not shown up for wor k. He said Mr. Bimonte as ked him to check on the victi m, and he agreed he would. H e said that the victim’s truck was parked outside his apartment, and he knocked lightly on the apartm ent door because he thought the victim might be sleeping. He said that when the victim did not answer, he put a note on the door and left. Mr. Franklin said the victim always carried a black gym bag with him that contained magazines and c lothes. He said he never saw the victim act violently.

On cross-examination, M r. Franklin said he did not know that the defendant was a close friend of the v ictim. He said he knew that the victim smoked marijuana and sold it out of his home.

Jerry Ward testified that he is a friend of Mr. Bimonte and that he knew the victim from the restaur ant. Mr. Ward said that the day before the v ictim died, the victim came to his house to look at a truck he wanted to sell.

Irene Capiello testified that she lived with Dean Okie in a farmhouse that was converted into apar tments and that they were the victim’s neighbor s. She said the apartment walls wer

e thin, and she could hear from one apar tment to another. She said the victim had been ex periencing back problems and was off work but was planning to return to w

ork on Saturday. She testi fied that the weather was very cold on Friday, January 19.5 Ms. Capiello testified that the victim did not hav

e a telephone, and he came to her apartment on Friday to call the restaurant and t ell them he would not be at work until Saturday . She said she and the vic tim shared a marijuana cig arette at about 4:45 p.m., and the victim w ent back to his apartment. She s aid that after the victim l eft, she heard a car pull in at about 7:00 p.m. She stated that she may have heard another car pull in and out sometime before 10:45 p.m. but that she never hear d any loud noises that night. She said she and Mr. Okie went to bed at about 12:50 a.m . She said that on Saturday, Mr. Ok ie went to see the vic

tim, but the victim did not answer the door.
Ms. Capiello testified that she never saw any

duct tape or commercial laundry bags in the v

ictim’s apartment. She said she knew the victim a nd the defendant were friends. She said the police talked to he r on Sunday after the victim’s body was discover

ed in his apartment, and she gav e the police the names of the victim’s friends, including the defendant. She said she called the defendant and left a message for him, and he called her back on Monday. She said M r. Okie told the defendant about the victim’s death, then she told the defendant that she had given his name to the police. Ms. Capi ello testified that the vi ctim was extremely passive and avoided confrontation. She explained that once, a ne ighbor’s dogs were barking loudly and disturbing the vi ctim, but he asked Ms. Capie llo if she would talk to the neighbor about it because he did not want to confront the neighbo r. She stated that the victim was much smaller than the defendant and was not physical ly able to fight.
On cross-examination, M s. Capiello testified that the victim came to her apartment about three times on Friday to use the telepho ne. She said the victim also helped fix her stove becaus e it was uneven, and the v ictim had to bend down to do thi s. She said she saw a blue car pull into the drivew

ay on Saturday night,and she believed a man, woman and child wer e in the car. She said that i f there had been a fight6

between two grow

n men in the victim’s apar tment, she would have hear d it. She stated that the defendant had always been polite and ma nnerly toward her.

On redirect examination, Ms. Capiello testified that about three months before the victim’s death, the defendant came to her apartment. She said the defendant backed her up and put his arms aro und her, and this made her nervous.

Dean Okie testified that he li ves with Irene Capi ello. He said he last saw the victim alive on Thursday, January 18, i n front of the victim’s apartment . He said the victim was going to look at a vehicle, and the victim said he was feeling better. He said the next day, he went to North Carolina at 7:30 a. m. and did not arrive home unti l 11:30 p.m. He said that when he pul led into the drivew ay, the victim’s tr

uck was there, and a light was on in the victim’s apartment. He said that he would have heard people shouting in the victi m’s apartment because the wal ls were thin. He sai d that on Saturday, he awoke at 8:30 a.m. and went to the victim’s apartment at 9:00 a. m. He said he knocked on the door, but the victim did not answer. He said the victim’s truck was still in the dr

iveway. He sai d he knocked on the victim’ s door again at 12:30 p.m., but the vic tim still d id not an swer. He sai d he staye d home al l day.

Mr. Okie testified that on Sunday, he told Ms. Capiello that if the victim’s truck was still in the driveway when he returned home from work that evening, he would try to find the victi m. He said that when he arr ived home from work at 5:00 pm., the victim’s truck w

as in the driveway , and its hood was cool to the touch. He said he banged vigorously on the victim’s door, and he saw a note telling the victim to call his place of employment because they were worried. H e said he tried to open the door,but it was locked. He s

aid he decided to try to ent er through a window

on the side of the victim’s apartment, and he was able to enter through the spare bedroom window, which was open. He said that w hen he went into the hallw ay, he saw the vic

tim’s body lying7

on the floor. He said the body was wrapped in an off-w hite laundry bag, and the victim’s ankles were bound with tape. He said he called 9-1-1. Mr. Okie said the victim was a peaceful person.

On cross-examination, M r. Okie admitted that he had prev iously given a statement in which he said he saw the victim on J anuary 19. He said that th e date was wrong and that he actually saw the victim on January 18. He said he occasionally smoked marijuana with the v ictim. He said he knew the defendant, and he knew that the defendant w

as a friend of the victim.
Joe Graham testified that he had known the victim for eight years. He said that on Friday, Jan uary 19, he went to the v ictim’s apartment at about 7:00 p. m. to pay the victim forty

dollars he had borrowe d. He said the victim was wearing sweatpants, house slipper s and a bathrobe, and he was fix ing dinner. He said the victim had been having back problems. He said he pa id him the forty dollars,and the victim put the money on the coffee table. He said the victim told him he was going back to work on Saturday. Mr. Graham said he saw a bag containing about tw enty joints worth of marijuana underneath th e victim’s chair i n the living room. H e said they smoked about one-half of a marijuana cigarette and ate dinner. He stat ed that the victim’s black gy

m bag was on the couch in the living room. Mr. Graham said he left the apartment at about 9:45 p.m., and on that ni ght, he did not see nor had he ev er seen any duct t ape or a la undry bag in the victim ’s apartm ent. He sa id the vict im was five feet, eight-inches tall and was not muscular. He said the victim was very peaceful. He said he had met the defendant once, and the defendant w as much larger than the victim.

Jeff McCarter testified that he i s a detective with the Sevier County Sheriff’s Department. He said he was dispatched to the v ictim’s apartment on the8

evening of Sunday, January 21, 1996. He said he found the vi ctim’s body lying on its back in the floor of the livi ng room. He said he made a v ideotape of the scene, and the videotape was played for the jury while Detective McCarter explained what he saw. He said the victim had sil

ver duct tape around his ank les and was wearing

sweat pants. He said that from the waist up, the victim was covered by a large, white linen bag. He said the bag was later removed, revealing that the victim’s hands were bound by duct tape across the chest, wi th one arm lying ove r the other. He said there was a jagged tear or cut in the bag on th e opposite side from the victim’s face.

Detective McCarter said that each of the victim’s legs was individually taped and then taped together. He said the victim’s clothes were pulled around his waist, indicating that the victim had been drag ged backwards wi th his feet toward the door. He said the victim’s button-up shirt and T-shirt were bundled underneath him. He said the victim’s hands were tightly b

ound, and each arm was bound indi vidually and then together. He said the v ictim had relatively

fresh wounds on his knuckl es and hands, abrasions on his nose and face, and a wound or scratch on the left side of his abdomen. He said there was a clump of hair near the vic tim, and blood was on a shir t.

Detective McCarter

testified that his first conta ct with the defendant was on the Tuesday following the victim’s death. He said he drove into the defendan t’s driveway, but a v

icious dog was outsi de, and he did not get out of the car . He said that instead, he blew his horn for three to five minutes, but nobody came outside. He said he drove across the street and pulled into a gravel parking lot from which he could observe the defendant’s driveway. He said he called Agent Davenport and Captain Larry McMahan and told them what happened. He said they met him in the parking lot , and Agent Davenport call ed the defendant. He said Agent Dav enport spoke with the defendant and told him they wer e coming to his home. Detecti ve McCarter testified

that when they drove acr

oss the street to the defendant’s home, the defendant was standing9

in the driveway

next to his car and had ke ys in his hand. He sai d they explained to the defendant that they were inv estigating a homicide, and the defendant invited them into his home.
He said that he, Agent Dav enport, Captain McMahan, and TBI Agent Steve Richardson accompani ed the defendant into his home. He sai d the defendant mainly talked to Agent Davenport. He said he obser ved the defendant and noticed that the defendant kept his right hand e ither underneath him or in hi s pocket during the conversation. He said that when the telephone rang,the defendant reached out with his right hand, and he noticed that the defenda nt had fresh scratches on the back of his hand. He said the officers began t o leave because the defendant said he had no information about the victim’ s death, but he and Captain McM ahan went back to ask the defendant about the scratches on his ha nd. He said he examined the bac k of the defendant’s hand and saw two l ong scratches. He said the defendant explained that briars caused the scratches while he was chopping wood. He said that ten days later, he obtained a search warr ant and took photographs of the scr atches. He said that by then, the injuries had substantially healed.

On cross-examination, Detective McCarter said that the defendant’s friends confirmed that the defendant frequentl y chopped wood, and he admitted that the defendant’s home was in a w ooded area. Detective Mc Carter stated that the defendant came to the detective’s off ice on January 30 and gave a statement. He said the defendant admitted that he was at the victim’s apartment on Friday, January 19. He testified that the defendant said the v ictim started a fight by

punching him in the face, knocking off his glasses. The defendant said they engaged i n mutual combat, and he eventually found some duct tape in a pile of junk in a corner. The defendant told Detective McCarter

that he threw the laundry bag over the victim’s head to disorient the10

victim so he could escape . He told Detective M cCarter that he slit the bag to allow the victim to breathe.

Detective McCarter

testified that the defendant told him he nev er punched the victim in the face because he knew the victim w as a restaurant worker. He said the defendant told him that his primary goal was to detain and di sorient the victim in order to get out of the apartment. Detective McCarter said the victim’s hands w

ere taped differently than how the defendant ex plained it in his statement. He said the defendant stated that he thought the vi ctim was alive and br eathing when he left the apartment. He also said the defendant stated that he left the duct tape at the apartment and placed a table upright that had been k nocked over during the struggle.
On redirect examination, Detective McCarter testified that the defen dant is six feet, three inches tal l and weighs two hundred pounds. He said that w hen he and the other officers first spoke w ith the defendant at the defendant’s home, the defendant refused permission to take photog raphs of his hands. He said that when the defendant came to the station and made a statemen t, the defendant said that he walked from his house to the victim’s apar tment at about 11:30 p.m. on Friday night. He testified that the defendant said that he smoked marijua na with the victim that night, then told the victim he was not going to buy any more mar ijuana from him. He stated that the defendant said this made the victim angry, and the victim cursed and yelled. He said the def endant t old him th at the vict im went to t he kitche n, came b ack out an d threw a rock at him.

Detective McCarter testified that the defendant told him that the victim then got a knife. He stated that the defendant said he knocked the knife aw ay and as they struggled, he s

aw the duct tape. Detecti ve McCarter said th e defendant stated that he got on top of the victi m and taped his hands and legs tog ether. He said the11

defendant told him that the victi m’s hands were ten inches apart, outstretched and straight over the v

ictim’s genital area. Detective McCarter testified that at the scene, the victim’s hands w

ere not ten inches apart; rather they were tig htly taped together. He said the defendant told him that he s creamed for Ms. Capiello about twenty times. He said the defendant told him that onc e he bound the victim, he turn ed on the television, turned off the lights and left. He said the def endant stated that the victim was moaning and breathing shallowly w

hen he left and that he left the apartment door cracked. Detective M cCarter testified that at the scene, the table the victi m claimed was knocked over dur

ing the struggle w

as standing upright w

ith a coffee cup containing coffee and a cigarette tray c ontaining ashes on top of it.

On recross-examination , Detective McCart er stated that he found several clumps of hair at the scene, and one c lump was in the victim’s hand. He said that the defendant told him that when he was on top of the victim, the victim grabbed his hair, pulling him back.

Karen Lanning, a forensic ex aminer with the FBI Trace Evidence Unit, testified that she examined the hai r found at the scene, and the hair w as consistent with the defendant’s hair and inconsistent with all other samples provided to her. She said the defendant’s hair was also found undernea th the victim. She said that all of the hair found on the victim’s clothing came from either the victim or the def endant. She said it looked like the hair from the defendant had been forcibly removed and would be consistent with the v

ictim having pulled the defendant’s hair in a strug gle.
Dr. Cleland Blake, the As sistant Chief Medical Ex aminer for Tennessee, testified that he was call ed to the victim’s apartment on January 21, 1996. He sa id the victim’s body was lying on the floor in the same position as when it was discovered. He said he saw a table and a r ock collection partiall

y overturned on the floor. He said the12

victim had a laundry bag over his head and w as wearing blue sw

eatpants. He said that after removing the laundry bag, he saw that the victim’s hands and feet were tightly bound with duct tape. He sa id the hands were cross ed, and each hand was taped individually and then bound together tightly. He said that the victim had injuries to his face and knuckles and that the surface skin on his nose, chin and c heeks was rubbed off like an abrasion. He said th e victim had free blood around his lips. He said the victim’s knuckles and the backs of his hands were bruised, which indicated that his hands had hit a surface.

Dr. Blake testified that the victim had compression abrasions on his neck, which were associated with mild bleeding around the vessels inside the neck. He said the victim had compression fractures on seven of his ribs, and the f ractures were consistent with someone j umping or sitting dow n hard on the victim’s c hest. He said he found bleeding around the carotid arteries, which w as typical of squeezi ng and compressing the neck. He said the neck showed only abrasions and not signific ant outside bruises because one generally does not see bruises if a cloth or padd ing is used to squeeze the neck. He said the victim’s injuries were consi stent with choking or squeezing the neck. He determined that the cause of death w as compression of the neck which cut off the oxy gen supply and caused the v ictim to asphyxiate. He said the choking would hav

e had to last at least five mi nutes, and the victim could not have died just from the bag being p laced over his head. H e said there had to be some compression.

On cross-examination, Dr. Blake testified that he did not examine the du ct tape for the presence of teeth marks or saliva. He said he s

aw hair on the scene, including at least one cl ump of hair. He said the vi ctim was smothered throug h the cotton bag, but he did not ex amine the inside of the victi m’s nose or his neck area for fibers from the bag. He admitted th at in his report, he stated that the neck was13

symmetrical and unremarkabl e with no evidence of gr asp marks or encirclin g lines, but he said he meant no marks consistent with strangulation, such as noose m arks. He said the victim had external injury in the form of abrasions. He said he found no grasp marks on the neck, but the ski n was rubbed off. He said the v ictim had internal bleeding around the neck v essels which show

ed that the neck was definitel y squeezed. He said the bleeding around the neck was not from a kick or a chop but from progressive choki ng. He said he believ ed the choking was done th rough the cotton bag. He said that because the bag protected the skin, the only visible ex ternal injuries were abrasions. He said he could not estimate the time of death , but he could determine that the victim ate no more than one hour be fore he died. He stated that in his report, he put a question mark next to “compression marks from asphyxiation ef fort.” He said his initial i mpression was that there was compression throug h the fabric, and he believes that the compress ion was the cause of death.

Michael Howard testi

fied that he had worked wi th the defendant at the Branding Iron. He said the defendant was very c alm and peaceful, and he never saw him angry. On cross-examination, he said he had h eard that the defendant assaulted his wife on May 17, 1995, by grabbing her throat, kicking her out feet from under her, landing on top of her, and choking her. He said he considered this in form ing his opinion about the defendant’s reputatio n for peacefulness. He said he w ent to the defendant’s house after the alleged as sault occurred, and the defendant’s wife did not look like she had been touched. He said that he had not heard about the same thing happening two days l ater but that it would not change his opinion of the defendant.

Gary Gray te stified that he is the past or of a lo cal churc h and owns a vinyl business. He said that he had known the defendant f or about five years through church and that they had worked t ogether at the Passion Play. He said the defendant was peaceful and of good character. He said he was at the defendant’s hou se on the14

afternoon of Friday, January 19, because he wanted to make s ure the defendant was keeping ties with C hristian people. He said he spent about three hours wi th the defendant that day. He said he saw the defendant again the following Tuesday or Wednesday, and the defendant took him into his confidence a s a pastor. He said he convinced the defendant that he neede d to tell the police what happened at the victim’s apartment, and he accompanied the de fendant to the Sevier County Sheriff’s Department on January 30. H e testified that at that time, the defendant was smaller than he was at the time of trial , weighing about one hun dred and seventy pounds. O n cross-examination, he tes tified that he had not heard about the defendant assaulting his wife on two occasions.

Albert Cissery, Gr

etchen Cissery, Tom How ard, Sabrina Gray, Joan McGill and Lana Johnson all testified that the defendant was a pe aceful person and was of good character. M r. Cissery and Ms . McGill were ask ed if they had heard about the defendant assaulting his w ife on two occasions, and they said they had not. The jury convicted the defendant upon the foregoing eviden ce.

I. SUFFICIENCY OF

THE EVIDENCEPREMEDITATED

MURDER The defendant contends that the evidence is insufficient to support his conviction for premeditated mur der. Specifically, he ar gues that the evidence of premeditation is insufficient and that the evidence supports hi s contention that he and the victim engaged in

mutual combat. The state argues that the evidence is sufficient. We agree.

Our standard of review when the sufficiency of the ev idence is questioned on appeal is “whether, after viewing the ev

idence in the light most fav orable 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.15

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 testimony and drawn all r easonable inferences 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, 835 (Tenn. 1978).

The defendant was convicted of the “ premeditated and intentional kil ling of another.” Tenn. Code Ann. § 39-13-20 2(a)(1). A premeditated ki lling is one done “after the exercise of reflection and judgment” and requires that “the intent to kill must have been formed prior to the act itself.” Tenn. Code Ann. § 39-13- 202(d). A jury may infer a defendant’s intent from the surr ounding facts and circumstances

. State v. Lowery , 667 S.W.2d 52, 57 (Tenn. 1984). Furthermore, a defendant’ s actions constitute circumstantial evidence of his intent. State v. Holland , 860 S.W.2d 53, 59 (Tenn. Crim. App. 1993).

Viewed in this lig ht, we believe the ev idence sufficiently supports the defendant’s conviction for premeditated m urder. Evidence was presented from which the jury could have c

oncluded that the defendant brought duct tape and a bag to the victim’s apartment, bound the victim with the tape, placed the bag over the victim’s head and choked the victim for at least five minutes. The defendant arg ues that the evidence shows a str

uggle and that this suppor ts his contention that the v ictim started the altercation and he merely tried to subdue the victim in order to get away. Evidence of a struggle does not confli ct with a finding of premeditation and intent because the jury could have concluded that it was the v ictim who strugg led to get away from the defendant. See State v. Willia ms , 657 S.W.2d 405, 41 0 (Tenn. 1983) (“A jury verdict approved by the trial

judge accredits the testimony of the witnesses for the State and resolves all conflict

s in favor of the State’s theor y”). The evidence is

sufficient to support the conviction.16 II. FELONY MURDE R The defendant makes several contentio ns with respect to his conviction for felony murder. First,he contends that the evidence i s insufficient because being bound in one’s home does not constitute false imprisonment. Next , he contends that the state should have been req uired to elect a theory of either premeditated murder or felony murder and that the tri al court erred in allow ing the state to submit both th eories to the jury under State v. Anthony , 817 S.W.2d 299 (Tenn. 1991). Finally, he c ontends that the dual convictions for first degree premeditated mur der and felony murder violated his right

s against double jeopardy . We hold that no error exists w ith respect to his felony murder convi ction.

A. SUFFICIENCY

First, the defendant contends that the evidence is insufficient to support his conviction for felony murder in the perpetration of a k idnapping. He argues that one cannot be falsely imprisoned by being bound in one’s ow n home. Our standard of review when the s ufficiency of the evidence is questioned on appeal is “w hether, after viewing the ev

idence in the light most fav orable to the prosecution, any rational trier of fact could have found the essential elemen ts of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that we do not reweigh the evidence but presume that the jury has resolved all conflicts in the testimony and drawn al l reasonable inferences from the ev idence in favor of the state. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).

Kidnapping is defined as false i mprisonment “[u]nder circums tances exposing the other pers on to substantial risk of bodi ly injury[.]” Tenn. Code Ann. § 39- 13-303(a)(1). False i mprisonment occurs when one “knowingly r emoves or confines17

another unlawfully so as to interfere substantially with the other’s li berty.” Tenn. Code Ann. § 30-13-202(a).

Although the defendant argues that one cann ot be falsely imprisoned in one’s own home, the plain lan guage of the statute places no s uch restriction on the definition of false imprisonment. In the present case, the evidence showed that the defendant knowingly taped the victim’s arms and l egs individually , then bound them together. The defendant’s actions o bviously resulted in substantial interference w ith the victim’s liberty

because the victim could not move. The fact that the false impri sonment occurred in the victi m’s home is immaterial to the det ermination of whether it occ urred. See , e.g. , State v. Zonge , 973 S.W.2d 250, 254 (Tenn. Crim. App. 1997) (holdi ng evidence sufficient to support aggravated kidnapping conviction, and vic

tim was confined in her home). The evidenc e in the present case is suffici ent to support the conviction.

B. DUE PROCESS/DOUBLE JEOPARDY

The defendant contends that the jury s hould not have been charged w ith both pre meditat ed murde r and fel ony murde r. He argue s that the state sho uld have been required to elect one theory because (1) the tw o theories were contrad ictory, and (2) if the jury found the defendant g uilty of premeditated murder, any further detention from the kidnapping was in cidental to the murder. See Anthony , 817 S.W.2d at 306.

First, we note that the state may proceed on theories of premeditated murder and felony murder because both are merely alternati ve means of committing first degree murder. See State v. Hurley , 876 S.W.2d 57, 70 (Tenn. 1993). Also, our supreme court has held that the s tate is not required to el ect between premeditated and felony murder charged in s eparate counts of the indictment for a s ingle offense. State v. Henley , 774 S.W.2d 908, 916 (Tenn. 1989).18 The defendant argues that this case i s unique because if the jury found him guilty of premeditated mur der, the kidnapping woul d be essentially inci dental to the murder. We do not believe that Anthony is implicated under the facts of the present case. The court in Anthony was concerned that the kidnapping statute “be applied so as to protect the due process rights of those accused of both ki dnapping and other offenses that necessarily involve the detention of a victim.” Zonge , 973 S.W.2d at 256. Although the defendant was not co nvicted of kidnapping, he w as convicted of murder occurring in the perpet ration of a kidnapping. In thi s respect, Anthony might protect against a dual conviction for murder committed in the per petration of a kidnapping and another crime that necessari ly involved detention, such as robbery. H owever, proof of premeditated murder does not necess arily prove unlaw

ful confinement of the victim. Thus, the Anthony

rationale does not apply. See Zonge , 973 S.W.2d at 256 (citing State v. Oller , 851 S.W.2d 841, 84 2-43 (Tenn. Crim. App. 1992)).

In any event, we do not see how the fact that the jury was presented with both premeditated murder and felony murder and the fact that they ret urned convictions for both harmed the defendant in light of the fact that the trial court mer ged both offenses i nto one j udgment of convi ction fo r which the defe ndant received one life sentence. The defendant argues that th e trial court erred by allowing both convictions, and he asks this court to v acate one of the offenses. After the jury announced its verdict, the trial c

ourt stated that “the Court i mposes, sir, a life sentence pur suant to the statute. I guess those merg e, and there is one life sentence.” The judgment of convictio n reflec ts that th e convicti ons were me rged; thu s the def endant h as not sho wn how he was harmed.

III. DENIAL OF CONTINUANCE

The defend ant contends that the trial cou rt erred by denying a continuance in the absence of Jimmy Sizelove, a material

witness for the defense.19

Specifically, the defendant arg ues that Mr. Sizelov e had known the defendant longer than anyone else in the area an d could testify regardi ng the defendant’s good character. The defendant further arg ues that Mr. Sizelov e could have testified regarding his know

ledge of the victim’s i nvolvement in the marij uana trade. The state
co nt en ds

th at th e t ri al co ur

t d idnot a bu se

its d is cr et io n by d en yi ngth e m ot io n. We agree.

The trial court has discr etion to determine whether t o grant a continuance. Moorehead v. State , 219 Tenn. 271, 274-75, 409 S.W.2d 357, 358 (1966). The tri al court’s decision wi ll only be revers ed upon a showing of abuse of disc retion and a showing that the defendant was prejudiced in that a diffe rent result might reasonably have been reached if the continuanc e had been granted. See State v. Dykes , 803 S.W.2d 250, 257 (Tenn. Crim. App. 1990); Baxter v. State , 503 S.W.2d 226, 230 (Tenn. Crim. App. 1973).

We conclude that the defendant has failed to show prej udice. Eight witnesses testified for the defendant about his reputation for peacefulnes s, and one witness had known the defendant for five years. Fur thermore, evidence was presented regarding the vic

tim’s involvement w

ith marijuana. Because the ev idence the defendant sought to present from the missi ng witness would have been cumulative, the defendant has failed to show prejudic e.

IV. MIS TRI AL The defendant contends that the trial cour t erred by failing to declare a mistrial because of prejudicial and irrelevant tes timony from two state’s w itnesses, Irene Capiello and Joe Graham. He s pecifically takes iss ue with Ms. Capiell o’s testimony that the defendant used cocaine, and Mr. Graham’s and Ms. Capiell o’s references to20

taking a polygraph examination. The state contends that the trial court corr ectly denied the defendant’s request for a mistr ial. We agree.
The decision of whether to gr ant a mistrial is wi

thin the sound discretion of the trial court. State v. McKinney , 929 S.W.2d 404, 40 5 (Tenn. Crim. App. 1996). This court will not disturb that decision unless ther e is an abuse of discretion. State v. Adkins , 786 S.W.2d 642, 644 (Tenn. 1990); State v. Willia ms , 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996).

A. REFERENC E TO COCAINE USE The defendant contends that the trial cour t should have granted a mi strial when Ms. Cappiello tes tified regarding the defendant’ s cocaine use. Initiall y, we note that the defendant does not make an argument or cite any supporting authority with respect to this issue. H e merely recounts Ms. Capiello’s testimony at trial that the defendant flirted with her and told her he had used cocaine. We believe the issue is waived for failure to make an argument or to cite author ity. T.R.A.P. 27(a)(7

).

Nevertheless, the iss ue is without merit beca use the defendant has failed to show that the trial c

ourt abused its discreti on. The record reveals th at at trial, the defendant’s attorney objected i mmediately after Ms. Capiel lo’s testimony, and the tr ial court instructed the jury that it should “not consider any of that . . . . Whether he’s done
co ca in e i n t he

pa st ha s a bs ol ut el y w

or ldwi th ou t e nd noth in g t o d o w it h t hi s c

as e. ” We presume that the jury follow ed the trial court’s ins

truction not to consider the testimony. State v. Smith , 893 S.W.2d 908, 92 3 (Tenn. 1994).

B. POLYGRA PH The defendant also contends that the trial court should have gra nted a mistrial because Ms. Capiello and Mr. Graham referr ed to taking a polygr

aph test. On21

cross-examination, the de fendant’s attorney asked Ms.Capiello if she remembered talking to detectives and signing any statements. Ms. Capiello responded that she did and that she had taken a lie detecto r test. During Mr. Graham’s direct examin ation, he testified that he provided detectives with hair samples and blood samples and that he took a polygraph test. Although the trial court denied the defendan t’s motion for a mistrial, it did instruct the jury as follows:

Ladies and gentlemen, fir st of all, there’s been testimony voluntarilyoffered by witnesses that they took polygraph examinations. Under Ten nessee la w, and in fact, I think in the majority of the jurisdictions acro ss this country, the te

st results of a polygraph exam

are not admissible in court because most appellate courts consider unreli able [sic]. S o th erefore, our Tennessee cou rts do not admit those into evidenc e. Therefore, any testimony in regard s to the ta king of a polygraph examination shall be dis reg arded b y you, and not used for any purpose.
Ms. Capiello’s and Mr. Graham’s testimony regarding the polygraph examinations was inadmi ssible. The well-est ablished rule in Tennessee is that the results of a polygraph e xamination, an offer to take a poly graph, and the circumstances surrounding the examinati on are inadmissible as ev idence. State v. Hart , 911 S.W.2d 371, 377 (Tenn. Crim. App. 1995); State v. Irick , 762 S.W.2d 121, 12 7 (Tenn. 1988); State v. Adkins , 710 S.W.2d 525, 528-29 (Tenn. Crim. App. 1985); Grant v. State , 213 Tenn. 440, 443, 374 S.W.2d 391, 392 (1964). Neverthel ess, the defendant has failed to show that the trial c

ourt abused its discreti on by failing to grant a mistrial based upon the inadmissible testimony . The record reveals that the witnesses’ referenc es to polygraph examinat ions were m inor, and the trial c ourt provi ded a det ailed cur ative instruction. Under these circumstances, we do not believe that the trial court erred by not granting a mistrial.22 V. CROSS-EXAM INATION OF C HARA CTER WITNESSES The defendant contends that the trial cour t did not follow the proper procedure for allowing

the cross-examination of defense character witnesses regarding the defendant’s alleged assault of his ex-wife when they were married. H e argues that pursuant to Rule 405(a), Tenn. R . Evid., the trial cou rt should have held a jur y-out hearing to determine whether there was a clear and convincing factual bas is for the alleged incident, and the tr ial court should have c

onducted a balancing test to determine whether the probati ve value outweig hed the prejudicial effect of the evidence. He further arg ues that the trial court di d not instruct the jury to consider the specific conduct for impeachment purpo ses only and not for its tr uth. Finally, the defendant argues that the trial court should have giv en a curative instruction to refute the assistant district attorney’s implicati on that there had been an official repor t of the alleged abuse. The state contends that the trial court subs tantially complied w

ith the procedures delineated in Rul e 405(a) and argues that a cu rative instruction w as not
necessa ry.
Rule 405(a), Tenn. R. Evid., provides as follows:

Re putation or Opinion. In all cases in which eviden ce o f character

or a trait of character of

a person is admissible, pr oof maybe made by testimony as to reputation or by testimony in the form of an opinion. After application to the court, inquiry on cross-examinationis allowable into r elevant specific instances of conduct. The conditions which must be satisfied bef ore allowing inquiry

on cross-examination about specific instances of conduct are: ( 1) The court upon request must hol d a hearing outside the jury’s presence, (2) The cour

t must de

termine that a r easonabl e fa ctu al basis exists for the inquir

y, and ( 3) The court must determine that the probative valu e of a sp ecific instance of conduct on the character witness’ s credibility

outweighs its prej udicial effect on substant ive issue s. Once a trial court determi nes that an inquiry i s permissible pursuant to R ule 405, Tennessee law requires that the trial court ins

truct the jury to cons ider the conduct not23

for its truth but rather to ev aluate the credibility

of the character witness. State v. Nesbit , 978 S.W.2d 872, 88 3 (Tenn. 1998).

In the present case, the assistant district attorney notified the trial court during trial that if the defendant presented witnesses to test ify about the defendant’s reputation for peacefulness, he intended to ask the witnesses i

f they had heard that the defendant assaulted his ex-w ife. A bench conference was held in which the assistant district attorney st

ated, “I’ve got a basi s for it . . . I can put her [ on]. I’ve got an absolut e basis for it.” The defendant’s attor ney then read Rule 405(a) aloud, and the following colloquy occurred:

ASSISTANT DISTRICT ATTORNEY: Okay.Well, is the out of court hearing [sic]? COURT: Well, if we need to go further, I certai nly will. If y ou gentlemen ask me for other things -- I mean . . . ASSISTANT DISTRICT ATTORNEY: Is the Court holding that I can ask specific bad acts, th at the probative value outweighs the prejudicial effect? DEFENSE ATTORNEY: I think with regard to her testim o ny you’re asking that, c

orrect? ASSISTANT DISTRICT ATTORNEY: No, w ith regard to me asking his character witness . . . COURT: Oh, sure, yeah, on cross examination. ASSISTANT DISTRICT ATTORNEY: I’ve got two assaults on her. COURT: Yeah. DEFENSE ATTORNEY: Without it being clear and convincing he can ask that, about that? ASSISTANT DISTRICT ATT ORNEY: I’ve got a factual basis forit, and I’ll be glad to

put her on if Mr. Miller wa nts me to put her on. DEFENSE ATTORNEY: I will, forthe record, request that hearing where she be put on, and Your Ho nor make the determination as to clear and convincin g. I have to do that for record purposes. COURT: Ok ay.24 The defendant called eight witnesses who testified abou t the defendant’s reputation for peacefulness. The assista nt district attorney asked four of those witnesses if they had hear d that the defendant assaulted his ex -wife. The defendant now complains that the trial court did not follow the proper procedure pursuant to Rule 405(a). Although we agree the trial court did not follow the exact procedure set forth in Rule 405(a), we believ

e that the requirements of the r ule were satisfied. See Nesbit , 978 S.W.2d at 885; see , e.g. , State v. DuBose , 453 S.W.2d 649, 652 (Tenn. 1997) (holding that substantial compliance with Rule 4 04(b), Tenn. R. Evid., per mits deferential review).

First, the defend ant comp lains tha t the tria l court did not cond uct a juryout hearing to determine w hether a factual basis for the inq uiry existed. We agree wi th the defendant that the better practice would have been for the tr ial court to conduct a jury-out hearing dur

ing which the defendant’s ex -wife could have testi

fied about the alleged assaults. Nevertheless, the record reflects that the trial court held a bench conference, and nothing in the r ecord shows that the jur y was privy

to the conference. Furthermore, although ex trinsic proof of the specific co nduct should be offered whenever possible, a factual basis may be found if the attor ney proposing to ask th e question “clearly

state[s] on the record the so urce and origin of the informati on underlying the specific instance of conduct about which the inquiry is proposed.” Nesbit , 978 S.W.2d at 882. We believe that the assistant distri ct attorney’s asserti on that he had information from the defendant’s ex -wife concerning tw

o assaults upon her by the defendant supplied a sufficient factual basis for the inquir y.

The defendant also contends that the trial court did not conduct a balancing test with respect to the probative v alue and prejudicial effect. In th e present case, the trial court in dicated that the probative v alue outweighed any pr ejudicial effect. Again, the better practic e is to place specific findings on the record in this r egard.25

Nevertheless, a review of the record shows that the requirements of the rule were satisfied.
The defendant argues that the trial court erred by not instructing the jury to consider the alleged i ncident not for its truth but for evaluating the credibi lity of defend ant’s cha racter witn esses. Th e record s hows that during its charge to t he jury, the trial court did prov

ide such a limiting ins

truction to the jury, and the jury is presumed to follow the trial cour

t’s instruction. State v. Walker , 910 S.W.2d 381, 397 (Tenn. 1995); State v. Lawson , 695 S.W.2d 202, 204 (Tenn. Crim. App. 1985).

The defend ant also conte nds that the tria l court erred by not givin g a curative instructi on to the jury to clari fy the assistant distri ct attorney’s insinuation that an official report of the alleged incident existed. The defendant’s complaint arises from the cross-examination of Tom How ard, one of the defendant’s character w itnesses. On cross-examination, the assistant district attorney asked Mr. Howard if he had heard about the defendant’s assault on his e x-wife. The assistant district attorney then asked Mr. Howard if he considered this “report” when he testified about the defen dant’s reputation for peacefulness and if he had hear d another “report” of the same i ncident occurring two days later. The defendant argues that the assistant district attorney’s use of the word “report” impl ied that an official report of the inc ident existed and that the tr ial court should have instr ucted the jury that there was no such report. The as sistant district attorney argued at trial that by “report,” he meant whether the witness had heard a report of the incident from another person. Considering the context of the statement, we do not believe that the assistant district at torney’s question w

as misleading, and the trial court did not abuse i ts discretion by deny

ing a curative inst ruction.

VI. EVIDENCE OF DEFENDANT’S HONESTY

AND TRUSTWO RTHINESS26 The defendant contends that the trial cour t erred by not allow

ing testimony regarding his trus

tworthiness concerni ng money and other valuabl es and his reputation for honesty. He argues that evidence of his trustw orthiness concerning money and other valuables is per

tinent, pursuant to Rule 404(a ), Tenn. R. Evid., because he was charged with felony mur der committed in the perpetrati on of a robbery, burglar y or theft. He argues that testimony regarding his reputation for honesty is admissible because it is helpful in evaluating

the credibility of the s

tatement he gave to police. The state contends that the trial cour t properly denied the ev idence.
Generally, evidence of a person’s character or c haracter trait is not admissible to prove action in conformity with the particular character trait. Tenn. R. Evid. 404(a). However, evidence of a pertinent character trait offered by the accused is admissible. Tenn. R. Evi d. 404(a)(1); State v. Phipps , 883 S.W.2d 138, 152 (Tenn. Crim. App. 1994) (“the accused is entitled to offer evide nce of ‘good character . . . as tending to show th at [the accuse d] would not comm it a crime’”) (quotin g McKinney v. State , 552 S.W.2d 787, 790 (Tenn. Crim. App. 1977)). In this respect, we beli eve that the trial court erred by not allowing evidence of the defendant’s trustworthiness concerning money and other valuables. The evidence related to a pertinent charac ter trait because the defendant was c harged with committing murder in the perpetration of a robbery, burglary or theft. Nevertheless, the error was harmless in light of the fact that the trial court dismi ssed that particular indi ctment.

With respect to the admissibility of evidence regarding the defendant’s reputation for truthfulness, the state con tends that the evidence is not admissible because the defendant did not testify at trial. Ordinarily, when a defendant attempts to show his reputation for tr uthfulness as relating to hi s credibility as a witness, the defendant must first testify. See McKinney , 552 S.W.2d at 790 (“An accused may not, of course, show evidence of his credibility as a witness by the use of character27

witnesses unless he fir st testifies”). How

ever, the defendant contends that ev idence of his truthfulness is admissi ble not because it relates to his credibility as a witness but because it relates to the credibility of the statement he gave to police, which was in issue.

In this re spect, th e evidenc e was admis sible und er Rule 40 4 to show a pertinent character trait. Phipps , 883 S.W.2d at 153. Thus, there would be error if the trial court had excl uded such testimony, but the r ecord shows that the tri al court stated, “You can ask him -- w

ell, he can only show

his good character for tr uthfulness and veracity in the communi ty, period.” Althoug h the defendant may have misunderst ood the trial court, the reco rd shows that the trial court found the evidence admiss ible. Under these circumstances, the issue is without mer it.

VII. CLOSING ARGUMENT The defendant contends that the assistant di strict attorney committ ed prejudicial error dur

ing closing argument

by (1) appealing to the jury to consider g eneral deterre nce and (

2) makin g an arg ument re lating to the r obbery , burgl ary and

theft aspect of felony murder, a count w hich had already been dismi ssed. The state argues that the defendant failed to obje ct to the deterrence argument and that both issues are without merit.

The Tennessee Supreme Court has recog nized that “argument of couns el is a valuable privilege that should not be unduly restricted.” Smith v. State , 527 S.W.2d 737, 739 (Tenn. 1975). Howev er, closing argument mus t be “temperate, must be predicated on evidence intr oduced during the trial of the case and must be pertinent to the issues being tried.” Russell v. State , 532 S.W .2d 268, 271 (T enn. 1976). Alt hough arguments relating to g eneral deterrence and community conscience are not necessarily impermissible, prosecutors should use caution when making such28

arguments in order to prot ect against inflaming the j ury or appealing to i ts passions. State v. Pulliam , 950 S.W.2d 360, 368 (Tenn. Crim. App. 1996). Improper statements made during closing ar gument constitute rever sible error if the statements affected the verdict. State v. Sutton , 562 S.W.2d 820, 82 3 (Tenn. 1978). In making this determination, appellate courts are to evaluate the f ollowing factors:

(1) the cond uct comp lained of viewed in co ntext and in light of the facts and circumstances of the cas e. (2) the curative measures underta ken by the court and the prosecution. (3) the intent of the prosecutor in making the statement. (4) the cumulative effect of the improper conduct and any other errors in the record. (5) the relative str

ength or weakness of the cas e. Judge v. State , 539 S.W.2d 340, 34 4 (Tenn. Crim. App. 1976).

The record reveals that at the end of closing argument, the assistant district attorney st

ated, “We can’t bring [the victim] back, but we can tell thi s man and others like situated that w e won’t put up with i

t under this proof.” Althoug h the assistant district attorney’s statement may have constituted an impermissible appea l to the jury for general deterrence, cons idering the factors deline ated in Judge , it was not reversible error under the facts of this ca se.
With respect to the assistant district atto rney’s references to a possible theft, we do not view these comments to be error. The r ecord shows that the prosecutor stated, “Whether in the course of [the victim] looking for a car this defendant saw the mo ney, wheth er he lust ed afte r that ma rijuana t hat he sa id he’d be en down there to smoke with him ear lier. We know this, the bag w as never found; the great quantity of marijuana w as never found.” We view these comments as relating to a possible motive, not to the possibility that the defendant committed felony murder in the perpetration of a robbery, burglary or theft. In any event, with respect to felony murder,29

the jury was inst ructed only as to murder in the perpetration of a kidnappin g. We see no prejudice to the defendant.

VIII. PAROLE ELIGIBILITY The defendant contends that the trial cour t erred by instructi ng the jury on parole eligibility. He argues that the tri al court’s instructi on would have led the ju ry to believe that if convic

ted, the defendant would not have to spend life in prison. The stat e argues that the issue is waived and is neve rtheless without merit. We agree.

The defendant complains about the followi ng instruction by the trial court: The punishm ent for t he offense is life impris onment, l ife imprisonment

with o ut the possibility of par ole, or death by electrocution. The State, however, is not seekin g the death penalty or life imprisonment without the po ssibility of parole, and therefore, should you retu rn a verdict of guilty, the Court will impose a life senten ce. The defendant argues that the instruction is error unde r Farris v. State , 535 S.W.2d 608 (Tenn. 1976).

First, we view the issue to be waiv

ed because the defendant failed to raise it either at trial or in his motion for a new trial. T.R.A.P. 36(a); 3(e). Nevertheless, the issue is without mer it for several reasons.In Farris , two member s of the supre me court concluded that a statute requiring jury instruction on parole eli gibility was unconstitutionally v

ague. However, our

supreme court has held that the statute applicable in the defendant’s case , Tenn. Code Ann. § 40-35-201(b)( 2), is not unconstitutionally v

ague. State v. King , 973 S.W.2d 586, 590-91 (Tenn. 1998). Furthermore, in the present case, the jury was not instructed on parole eli gibility and release eligibilit

y dates; rather, it w

as instructed that upon a finding of guilt, the defendant would be sentenced to life in prison. The instruction was accurate, and Farris is inapposite to the instant case.30 In consideration of the foregoing and the record as a whole , we affirm the judgment of conviction.

__________________________ Joseph M. Tipto n, Judge

CONCUR:

_______________________ John H. Peay, Jud ge

_______________________ David G. Hayes, Judge