O n A ugust 2 , 2 0 0 6 , t hi s C o urt st ayed t he D ef end ant ’ s d i rect ap p eal f rom hi s co nvi ct i o ns and o rdered t hat any 1

a p p e a l f ro m the trial c o u rt’s ru ling o n the e rr o r c o ra m no b is p e tit io n b e c o n so lid a te d w ith the sta ye d a p p e a l. B o th appeal s ar e n ow cons ol i dat ed f or our r evi ew. 

### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE

AT NAS HVILLE Ja nua ry 22, 200 8 S es sio n
STATE OF TENNESS EE v . SENTORYA L. YOUNG
Appeal f rom the Cr im inal Cou rt for Davidson Coun ty No. 2002-B-952 M ark J. F ishb urn, Jud ge

No. M2005- 01873-CCA -R3-C D - F iled May 12, 2008

The De fenda

nt, Sentory a L . Young , was convicted in the Davidson County Criminal Court of second deg ree murder a

nd two counts of ag g ravated assault. He rec eived a n eff ectiv e s en t en ce o f life wi tho ut t he po ssi bil ity

of pa ro le a s a re pe a t vi ole nt o ff

e nd e r. Th e re a ft e r, he fi le d a pe tit ion fo r w ri t of er ror c oram nobis, alleg ing that a pre judicial and extraneous piec e of pa per was s ent to the jury room as substantive evide nce. T he trial c ourt denied the petition. I n this consolidated appea l, he 1 raises the following four issues for our re view: (1) w hether

the evidenc e wa s sufficient to support his convictions; (2) whethe r the trial court fa iled to properly perf orm its role as thirtee nth juror; (3) whether the trial cour

t erre d by allowingthe prosec utor to exp re s s a p ersonal opinion through the
a dmi ssi on

of a c ha rt ; and (4 ) w he the r the tr ia l c ourt e rr e d in de nyinghis wr it o f e rr or

c or a m no bis petition. Finding no e rror , we a ffirm the judg ments of the trial c ourt. Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt A ff irm ed

D AVI D H. W EL L ES , J ., delivere d the opinion of the cour t, in which T HO M A S T. W O O D A LL and R OB E R T W. W EDEMEYER , J J ., joined.

E m m a R a e T e n n e n t , A s s i s t an tP u b l i c D e f e n d e r , N a s h v i l l e , T e n n e s s e e , f o r t h e a p p e l l an t , S e n t o r

ya L

. Yo u n g.
Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l and Re po rt e r; Cla re nc e E. Lutz, As sis tant A tto rn e y Ge ne ra l; Vi c tor S. Joh n s o n , I I I , D i s t

r i c t A tto rn e y Ge ne ra l; a

nd Re ne e Er b, As sis tant D ist

ri c t A tto rn e y

Ge ne ra l, for the a ppellee, State of

Tenne ssee.T h e vic tim ’s na m e a p p e a rs a s R o b ins o n in th e ind ic tm e n t an d in o the r p o rtio n s o f t h e re c o rd . H o w e v e r, it 2
ap p ears t hat t he co rr ect s p el l i ng i s R o b i son.
-2- OP IN ION

F ac tu al B ac kgr ound Th is c a se ari ses fro m an a lte rc a tio n o c c ur ri ngin f ro nt o f a Com fo rt I nn ho te l r oo m in Her mitage . During the ea

rly morning hours of J anuar

y 23, 2002, the Defenda

nt shot at three men, Torey Pill ow, Aar on “Shawn” Pill ow, and Way ne R obison. As a re sult, a Davidson County g rand 2 jury indicted the Def

endant for second deg ree murder ( Torey Pill ow) a nd two counts of ag g ravated assault (Shawn Pillow and Wa y n e R o b i s on). See Te nn. Code Ann. §§ 39-13- 102, -210 (de fining the offe nses of sec ond deg ree m u rd er a nd ag g ravated assault). Ajury trial was he ld in Dece mber of 2004.

Trial Vi e wi ngthe e vid e nc e in t he lig ht m os t f

a vo ra ble to t he State , th e pr oo f at tr ia l sh ow e d th a t,
on the even in g o f Janu ary

22 , 2 00 2, Sha

wn Pill ow ha d r e nte d a

ho te l r oo m a t th e Com fo rt I nn in He rm ita g e

. At

so me po int

in t he e ve nin g , th e De fe nd ant a nd Da vid Cla rk arr ive d at th e ho te l r oo m. The De fenda

nt was driving a s i l v er P o ntiac. Tore y Pill ow, Shawn Pillow’s brother, picke d up Way ne Rob iso n in hi s mar oo n B uic k, and the y joi ne d th e g ro up a t a

str ip c lub . T he De fe nd a nt, Da vid Cla rk , Sh awn

Pill ow , T orey P il low, Chr is G ri zzar d, and Way ne Rob iso n w e re a ll i n attendanc e at the c lub.

Whil e at the club, David C lark gave his phone number to one of the strippers. Ther eaf ter, the g roup left and went to another strip club, but it was closed. While the g roup wa s in the parking lot of the second strip c lub, the woman to whom Clark had g iven hi s number telephoned. The gr oup met up with the two women, Chithantkia Fisher and De nita Smit h.

Al l th e se ind ivi du als th en re tur ne d to Sha

wn ’s ho te l r oo m. T or e y

Pill owdr op pe d o ff

his passeng ers a

nd left. The w omen ag ree d to provide sex to the remaining men for $250.
Torey returne d in the early morning hours to pick up his brother a nd Robison. S hawn a

nd Robison got in the ca

r with Tore y , and they

left the hotel. One of t he women had noti ced that her money was missing f

rom her pa

nts. Grizz ard c all ed t h e t h ree men inquiring about the missing money . The Pillows and Robison returned to the hotel a nd beg an ar g uing w ith Grizz ard a bout the missing ca sh. Grizz ard was demanding compensation and accuse d Robison of “cockin’ a strap,” or
c oc kin g his pis tol . In o rd e r t o s ho w that th e g un wa s n ot c oc ke d, Rob iso n ra ise d his h and s and sa id “I ain’t doin’ nothing .” The Def endant then a

pproac hed the pa sseng er’ s side o f t h e vehicle a nd be g an fi ri ng . Sh awn

Pill owand

Way ne Rob iso n te sti fi e d th a t th e y sa w the De fe nd ant f

ir e fi rs t. Shawn then re turned fir e at the D efe ndant.

To re y Pill owdie d a s a

re su lt o f a g un sh ot wo un d to the he a d. Way ne Rob iso n w a s sh ot i n his thigh, and Shaw n Pill ow was shot in the stomach.-3-

Following the conc lusion of the proof, the jury found the De fenda nt guilty as cha rg ed. He
rec eived a

n eff ective sentence of life without the possibility of par ole as a

repe at violent offe nder. See Tenn. Code Ann. § 40-35-120. The Def endant filed a motion for

new tria l, which was de nied by written orde r on June 28, 2005.

Coram No bis Pr oc e e din

g On J une 23, 2006, the Def endant filed a petition for wr it of err or cor am nobis, arguing that the trial cour

t should gra

nt him relief o n the basis of ne wly discovere d evidenc e in the for m of an extraneous and pr ejudicial cha rt that went to the j ury room during deliberations. The Def endant’ s counse l was reviewing the re cord on a ppeal a nd noticed a la

rg e cha rt cre ated by

the prosec utor during her dire ct examination of David Clark, whic h was n o t l abele d as an e x hibit. The char t
re fl e c te d th e inc on sis te nc ie s in Cla rk ’s va ri ou s st a te me nts re g ard ing who sh ot fi rs t and the tim e fr a me s in wh ic h th os e state me nts we re mad e . T he De fe nd ant c on te nd s th a t th is e xtra ne ou s, prejudicia l document went to the jury room and that, if the tr ial court ha d known of the doc ument’s prese nce in the jur

y room, there was a re as onable pr obability a mistrial would have be en g rante d. There afte r, a he aringwas he ld on the reque st for cor am nobis relief

. Nicole Murphy , a cle rk with the Davidson County Criminal Court Clerk’s Of fice , testified that, when she was pre paringthe re cord to send to the A ppellate Court Clerk’ s Offic e, she f ound exhibi t 7 (a dia g ram of the scene cre ated by David Clark) “that had a piece of pape r folded inside of it that wasn’t mar

ked.” She admitted that she did not alert a ny one to the pre sence of the document. Matt L ockridg e, a lso a n employ ee of

the Davidson County

Criminal Court C lerk’s O ffice te sti fi e d th a t, a s a

pa rt of his du tie s, he c he c ke d ite ms into the c le rk ’s of fi c e pr op e rt

y ro om. He did not r e c a ll th e d o c u me n t in qu e s ti o n an d s tate d th a t, if h e h a d s e e n th e d o c u me n t in th e re cord, he would have a lerted someone to its presence

. Aar on Gra

y , the trial judg e’s “ in-cour t clerk,” testified that his responsibilities included do c ume nti nga ll e xhibi ts d ur inga tr ia l and c omp ili ng an exhib it list

. He c omm e nte d tha t th is c a se was tried twic e and that the documents we re not re numbere d from the f irst trial. Acc ording to Mr. Gra y , any document mar

ked for identification purpose s only did not go to the jury

room. Mr. Gra

y testified that, while he did not have any specific rec ollection of this case , there was a standard pr oc e dure in p la c e to pr e ve nt “ I D O nly” e xhibi ts f ro m g oin g to t

he jur y ro om a nd “ we do n’ t de viate from that proc edure .”

Mr. Gra y acknow ledg ed that ther e wa s no mention of this chart on the e x hibit li st. He fur ther opined that the exhibit was not viewed by the jury during its de liberations. When a sked if an er ror oc c ur re d b y thi s d oc ume nt’ s p re se nc e in t he pr op e rt

y ro om, Mr . G ra

y a dmi tte d th a t it s p re se nc e in the re cord w as a “ mistake.”
Next, C hris Austin, the trial judge ’s cour t office r, testified a

nd descr ibed his responsibilities
as over seeingcourtroom pr ocee dings. H e stated that, as a pa rt of his responsibilities, he examined the e xhibi ts at th e c on c lus ion of a tr ia l and ma de sure that on ly e xhibi ts i de nti fi e d a

nd a c c e pte d in to evidenc e we nt into the jury room. When asked if he had any specific rec ollection of this case and-4-

this ex hibit, he responded, “ What I can sa y is me and Mr. Gray followed the proce dure, but I know that when I

broug ht the ex hibits back that was not a piec e of it or I would’ve ma de someone awa re of it. ” He te sti fi e d th a t he g a the re d th e e xhibi ts f ro m th e ju ry roo m at th e co nc lus ion of tr ia l, compar ed them with the exhibit l ist, and then took them to the proper ty room.

Emma Rae Te nnent of the Me tropolitan Nashville Public Defen d er’s Offic er te stified that she re prese nted the De fenda nt on his appea l in this case

. She testified t hat she inspec ted the re cord on appea l and di scover ed the char t “[f]ol ded up inside” of e x hibit number 7. She determined f rom the trial transc ript that the cha rt was made during the cour se of Da vid Clark’s testi mony

beca use the char t tracke d vari o u s portions of his testimony . Ms. Tenant a cknowledg ed that the c losing statements wer e not transc ribed.

Robert J . Windell t estified that he w as an unpa id intern in the public def ender ’s offic e and that he par

ticipated in interview ing the twelve juror s in t h i s case . He state d that eac h juror wa s sh ow n a c op y of the un mark e d c ha

rt and of e xhibi t 7 a

nd we re a sk e d if

the y re c a lle d th e se documents.

Daniel Jones testified that he wa s a juror in t h i s m att er. H e stated de fense counsel visited him and showed him two documents (the unmarke d char t and ex hibit 7). Mr. J ones re membere d the unmarke d char

t “vividly .” When asked when he had pre viously viewed the document, he a nswere d, “I know I ’ve viewed it in the c ourtroom and I believe it may

have be en in the jury

room as we ll, y es.” He state d that h e wa s b etwee n “80 and 90 pe rce nt cer tain” that he sa

w the docume nt in the jury
ro om. He c ou ld n ot r e c a ll w he the r t he do c ume nt wa s disc us se d by the jur y duri ngits de lib e ratio ns

.
Be rnie Ly nch, also a juror in this case , testified t hat he rec alled seeing the unmarke d char t during jury

deliberations. W hen aske d if he re membere d whether the document wa s discussed by the j urors, he responde d, “Oh, I ’m sure it was. I mean, be cause —Imean, we talked about just about
ever y thing that wa s in there .” On cross-examination, his testimony beca me somewhat equivocal on
w h e th e r th e d o c u me n t w a s a c tu a ll y p r e s e n t in th e ju r y r o o m o r w a s ju s t d is cussed dur ing deliberations.

After hear ing te stimony , the trial cour t entere d an extens i v e o rd er denying the Def endant
cora m nobis relief. The case is now proper ly befor e this Court.

AN AL YSI S I. Su ff iciency of the Evid ence Th e De fe nd ant’ s f

ir st i ssu e is w he the r t

he e vid e nc e is legal ly

su ff ic ie nt t o s up po rt

his convictions for se co n d d egr ee murder a nd ag g ravated assault. Specif ically , the Def

endant a rg ues that the evidence is not sufficie nt beca use he acte d in self-de fense and in def ense of another . I n the
a lte rn a tiv e , h e argue s th a t he ki lle d th e vic timduri nga state of pa ssi on pr od uc e d b y a de qu a te provocation and, thus, the evidenc e wa rra nts a convict i o n for voluntar y manslaug hter instead of second de g ree murder.-5-

Tenne ssee Rule of A

ppellate Proc edure 13(e) presc ribes that “[f]indings of guilt in criminal actions whe ther by

the trial cour

t or jury shall be set aside if the evide nce is insuffic ient to support the finding s by the trier of fac t of g uilt beyond a rea sonable doubt.” A convicted criminal def endant who cha lleng es the suff

iciency of the e vidence on appea l bear s the burden of demonstrating why the evidenc e is insufficient to support the ve rdict, bec ause a verdic t o f g uilt destroy s the presumption of innoce nce a

nd imposes a pre sumption of guil t

. S t at e v. Evans, 108 S.W .3d 231, 237 (Tenn. 2003); State v. Carruthe rs, 35 S.W.3d 516, 557-58 (T enn. 2000); State v. Tug g le, 639 S.W.2d 913, 914 (Tenn. 1982) . This Cour t m u s t reje ct a c onvicted cr iminal defenda nt’s challeng e to the sufficie ncy

of the e vidence if, afte r consider ing the evidenc e in a lig ht most favorable to the prosec ution, we deter

mine that any rational trier of fac t could have f ound the essential e lements of the c ri me be y on d a

re a so na ble do ub t. Ja c ks on

v. Vi rg ini a , 44 3 U. S. 30 7, 31 9 (1 97 9) ; State v. Ha ll, 8 S.W .3d 593, 599 (Tenn. 1999)

. On a pp e a l, t he State is e nti tle d to the str on g e st l e g iti ma te vie w o f the evi den c e and a ll
rea sonable a

nd leg itimate infere nces w hich may be draw n there from. Carr uthers, 35 S.W.3d at 558; Hall, 8 S.W.3d at 599. A guilty verdic t by

the trier of

fac t accre d i t s t h e t estimony of the State’s witnesses and r esolves all conf licts in the evidence in favor of the prosec ution’s theory . State v. Bla nd, 958 S.W .2d 651, 659 (Tenn. 1997). Questions about the cre dibilit y of witnesses, the w eig ht and value of the e vidence , as we ll as all fac tual issues raised by the evidence are resolved by the trier of fa ct, and this Court will not re-we igh or re- evaluate the evide nce. E vans, 108 S.W.3d at 236; Bl and, 958 S.W.2d at 659. Nor will this C ourt substitut e its own infer ence s drawn f rom circ umstantial evidence for those dr awn by t h e t ri er o f fact. Evans, 108 S.W.3d at 236-37; Carruthe rs, 35 S.W.3d at 557. Second degr ee murder is define d by statute as t he “knowing killi ng of anothe r.” See Tenn. Code Ann. § 39-13- 210(a) (1). The lesser c harg e of voluntary m an slaug hter a lso includes the

“ kn ow ingkil lin g of

ano the r, ” bu t a dd s th e a dd iti on a l e le me nt t hat the kil lin g wa s d on e “ in a state of passion produc ed by

adequate provoc ation sufficie nt to lead a r easona ble per son to act in an irrational manne r.” Tenn. C ode Ann. § 39-13-211( a). Ag g ravated assault, as c harg ed in this case, is committ ed whe n a per son intentionally or knowing ly

cause s bodily

injury to another a

nd uses or display s a dea dly

wea pon. Tenn. Code Ann. § 39- 13-102(a )(1) (B ).

A person acts knowing ly when, with r espec t to a re sult of the person’ s conduct, “ the per son is awar e that the conduct is r easona bly cer tain to cause the re sult.” Tenn. Code Ann. § 39- 11-302(b)

. A p e rs on ’s a c tio n ma

y be kn ow ing , ir

re sp e c tiv e of

tha t pe rs on ’s de sir e that the c on du c t or re su lt w ill
oc c ur . T e nn . Co de Ann. § 3 9- 13 -1 02 , Se nte nc ingCommis sio n Co mme nts

. The De fenda

nt argues that t he S tate fa iled to neg ate his theory of self- defe nse or de fense of another beyond a rea sonable doubt. He does not c ontest that he shot the victims, but he asser ts that he did so in defe nse of himself a nd Grizz ard a fter Robison “coc ked his gun.” Thus, he argues that the killing wa s leg ally

justified.

Te nn e sse e Cod e Anno ta te d s e c tio n 3 9- 11 -6 11 (a ) p ro vid e s a s f oll ow s:-6- A per son is just ified in threate n in gor using forc e ag ainst another pe rson when and to the deg ree the per son rea sonably believes the forc e is imm ediately nece ssary to protect a g ainst the other ’s u s e o r att empted use of unlawful for ce. T he per son must have a rea sonable belief that there is a n imminent dang er of

d ea t h o r serious bo dil y inj ur y . T he da

ng e r c re a tin g the be lie f o f i mmi ne nt d e a th o r s e ri ou s b od ily injury must be rea l, or honestly

believed to be rea l a

t the time, and must be founded upon rea s o n ab l e grounds. The re is no duty to retre at bef

ore a person thre atens or uses forc e. Tenn. Code Ann. § 39- 11-611(a ). De fense of a t hird person is set for th in Tennessee Code Annotated se ction 39-11-612:

A person is justified in thr eate ning or using forc e ag ainst another to protect a third per son, if: (1) Unde r the c ircumstance s as the person r easona bly believes the m to be, the person would be justified under § 39-11- 611 in threate ning or using f orce to protect ag ainst the use or attempted u s e o f unlawful for ce r easona bly believed to be threatening the third person soug ht to be protec ted; and (2 ) T he pe rs on

re a so na bly be lie ve s tha t th e int e rv e nti on is i mme diate ly
nece ssary to protect the third pe rson. Tenn. Code Ann. § 39- 11-612.

I t is well settled that whether an individual acte d in self-de fense is a fac tual deter mination to be made by the j ury as t he trier of fact. State v. Clifton, 880 S.W .2d 737, 743 (Tenn. Crim. App. 1994); State v. I vy , 868 S.W .2d 724, 727 (Tenn. Crim. App. 1993)

. As such, “in the c ontext of judicial revie w of the jury verdic t, in order to prevail, the def endant must show that the evide nce re la tiv e to j us tif

ic a tio n, su c h a s se lf

-d e fe ns e , r a ise s, a s a ma tte r of law, a re a so na ble do ub t a s to his conduct be ing c riminal.” Clifton, 880 S.W .2d at 743

. M o reove r, the State ha s the burden of neg ating any

defe nse i f admiss ible evidenc e is introduced supporting the defe nse. Tenn. Code Ann. § 39-11-201( a)( 3). I t is c lear ly within the prerog ative of the jury to rejec t a claim of se lf-def ense. State v. Goode, 956 S.W .2d 521, 527 (Tenn. Crim. App. 1997) . The rig ht to defend a third person is to be determined in the sa me fa shion as the right of self-defe nse. Tenn. Code Ann. § 39- 11-612, SentencingCommi ssion Com ments.

The De fenda

nt asserts that, base d upon the evidenc e of self-de fense or def ense of another prese nted at trial, he was leg ally justified in shooting the victims. He notes that, “fr om the testimony of the fo ur pr os e c uti on wi tne sse s,

. . . no c oh e re nt a c c ount e me rg e s c on c e rn ingse ve ra l mate ri a l f a c ts,
s u ch as t h e t i m i n g o f t h e s h o o t i n g, C h ri s Gr i z z ar d ’s l o ca t i o ni m m e d i a t el y p ri o r t o t h e s h o o t i n g, whether Way ne Robison had his g un cocke d, and who shot first.” He f urther points to the fa cts that he wa s not init ially

involved in the dispute abo u t t h e s t o l en money and that he w as aw are that-7-

Rob iso n a nd Sha wn Pill ow we re arm e d. Al te rn a tiv e ly , h e argue s th a t th e e vid e nc e su pp or ts, a t be st, a convic tion for voluntary manslaug hter.

In t h i s c a s e , t h e D e f

e n d an t ’ s s u f

f i c i e n c y ar g u m e n ti s b a s e d u p o nw i t n e s s ’ c r e d i b i l i t y. Ex amining the evidenc e in the lig ht most favorable to the State, we conclude that there was suff icient
e vid e nc e to s us ta in t

he De fe nd ant’ s c on vic tio ns fo r s e c on d d e g re e mur de r a nd a g g ra vate d a ssa

ult

. The proof

showed that, followingan ar g ument betwee n Grizz ard a nd R obison, the Defe ndant approa ched t he vehic le and be g an firing . Acc ording to testimony prese nted at trial, Robison had previously

shown his empty

hands, indicating that he did not intend to fire a wea pon. The jury

hear d te sti mony fr om t wo e y e wi tne sse s th a t th e De fe nd ant w a s th e on e wh o f ir e d f ir st

. Th ere was a lso te s ti mo n y f

r o m o n e w it

n e s s th a t h e d id n o t. A s n o te d a b o v e , th is Co u rt w il l n o t r e-w eig h or
re- evaluate t h e evide nce. See Evans, 108 S.W.3d at 236. Further more, que stions about the
cre dibilit y

of witnesses, the w eig ht and value of the e vidence , as we ll as fac tual issues raised by the evidenc e ar e to be r esolved by the trier of

fac t. I d. The jury was not oblig ated to a cce pt the Def endant’ s testimony as to self-de fense . The issue of self - defe nse in a murde r prose cution is alway s a question of fac t to be deter mined by the trier of fac t. I n su m m ar y , there was ample evidenc e to support the jury ’s finding in this case that the De fe nd ant “ kn ow ing ly ” kil le d o ne vic timand fi re d upo n the oth e r two . We c on c lud e that th e State did ne g a te the De fe nd ant’ s the or y of se lf -d e fe ns e and that th e e vid e nc e wa s su ff ic ie nt t o e sta

bli sh the ce rtainty

of g uilt of the acc used.
Reg ardingthe Def

endant’ s argument that the evidenc e supports only a convi ct i o n for voluntary manslaug hter, it was a question for the jur y whether the Def endant knowing ly

committed second de g ree murder or

whether he a ct ed under “ adequate provoc ation.” State v. Johnson, 909 S.W .2d 461, 464 (Tenn. C ri m

. Ap p

. 1 995). The jur y was unde r no oblig ation to acc ept the Def endant’ s contentions that the killing was committed in a state of pa ssion. A rea sonable jury could have justifiably

found that the provoc ation suffe red by the Def endant was inadequate. I n any e ve nt, that de c isi on , ma de un de r p ro pe r i ns tr uc tio ns and c on sid e ra

tio n o f a ll the e vid e nc e , is wi thi n the exclusive province of the j ury

. There was ample evidenc e to support the jury ’s ver dict of sec ond deg ree murder.

The Def e n d an t a r g u e s th a t t

h e ju r y in s tr u c ti o n s f o r s e c o n d d e g r e e mu

r d e r an d v o lu n tary
mans la ug hte r s ho uld

have be e n r e ve rs e d a s h e re qu e ste d. I n a si mi lar case , th is C ourt re c e ntl y ag ree d that bin d i ng prec edent a llows the use of a n instruction for seque ntial consideration of the h o mi c id e g r a d e s

. Se e St a te v

. E ar n e s t G w e nH u mp h r e y , N o

. M 2 0 0 3

- 0 1 4 8 9

- CC A

- R3

- CD , 2 0 0 5 WL 2043778, at *14-15 (T enn

. C ri m

. Ap p ., Nashville, Aug . 24, 2005); see a lso St ate v. Ma nn, 959 S.W .2d 503, 521 (Tenn. 1997) (appe ndix ). This Court has observe d that, though not r equire d, the Tenne ssee Patter

n J ury I nstruction’s appr oach—the instruction dealing with second de g ree murder sh ou ld a lso a dv ise th e ju ry re la tiv e to t he iss ue of

pa ssi on up on a de qu a te pr ov oc a tio n r e la tiv e to voluntary manslaug hter—is more de sirable

. S ee S tate v. Jerry Dale T igne r, Jr., No. W2004-01935-CCA-R3-CD, 2005 WL 2259252, at *6 (Te nn. Crim. App., J ackson, Sept. 15, 2005). Howeve r, this Court has rec ently aff irmed a c onviction for sec ond deg ree murder in a case involvingW e no te tha t t h e T e n n e sse e R u le s o f C rim ina l P ro c e d u re w e re re v ise d o n J u ly 1 , 2 0 0 6 . S e e C o m p il e r ’s 3
N ot es , T en n

. R. Cr i m. P. ( 2006)

. T h es e r ev i s i on s ma de s ome s l i g h t l an g u ag e ch an g es t o t h e s ec t i on s c i t ed h er ei n

. For p u rp o se s o f t h is o p inio n , b e c a u se the s u b sta n c e o f th e r u le u n d e r re v ie w h a s n o t c h a n g e d , w e w ill c ite to the ru le in its

c u r r e n t f or m. -8- ju r y in s tr u c ti o n s th a t w e r e s im il ar to th o s e g iv e nin th is c a s e

. Se e St a te v

. Wa lf r id o L

. Ro dr igu e z, No. M2005-01351-CCA-R3-CD, 2006 WL1626845, at *3-4 (T enn. Crim. App., Nashville, June 7, 20 06 ), pe rm . to app e a l de nie d, (T e nn . O c t. 3 0, 20 06 ). Pr ior to t he ir de lib e ra tio ns , th e jur

y in t his
case was fully

and ac curately

instructed conc erni n g

p r o vocation, passion, and the differ ence betwee n second de g ree murder a nd v o l u n t ary

manslaug hter. See State v. Billy J oe Welch, No. E2005-02293-CCA-R3-CD, 2006 WL2737830, at *14 (Te nn. Crim . App., Knoxvil le, Sept. 26, 2006), per

m. to appeal de nied, (Te nn. Fe b. 26, 2007). The pr esent c ase doe s not compel relief

.
II. Th irte enth Juror Next, the Defe ndant contends that the t rial court failed to appropr iately exercise its role a s thi rt e e nth jur or : [T] he trial c ourt abdicated its duty as thirteenth juror t o i n d epende ntly weig h the evidenc e and assess t he credibility of t he witnesses. The trial c ourt instead def err ed completely

to the jury ’s deter

minations, and indicated throug h its comments on the
re c or d .

. . tha

t it mi su nd ers to od its a

uth or ity and re sp on sib ili ty

to a c t a s th ir

te e nth juror.

Th e De fe nd ant r e qu e sts a ne w tri a l.

T en n es s ee R

u l e o f C ri m i n al P ro ce d

u re 3 3 (d ) i mp o s es a m an d at o ry d u t y o nt h e t ri al j u d ge 3 to serve a s the thirteenth juror in e very criminal case. S tate v. Carte r, 896 S.W.2d 119, 122 (Tenn. 1995). Rule 33(d) doe s not require the t rial j udg e to m ake a n expli cit statement on the re cord. See Tenn. R. Crim. P. 33(d). I nstead, whe n the trial judg e si mply overr ules a mot ion for new t rial, an appellate court may

presume that the t rial j udg e has serve d as t he thi rtee nth juror and approve d the j u ry ’s v er d i ct

. C ar t er , 8 9 6 S

. W

. 2 s at 1 2 2

. On l y i f t h e re co rd co n t ai n s s t at em en t s b y t h e t ri al j u d ge indicating disag ree m en t wi th the jury ’s ver dict or evide ncing the trial judg e’s r efusa l to act as the thi rt e e nth jur or , ma y an a pp e llate c ourt re ve rs e the tr ia l court ’s jud g me nt. I d. Othe rw ise , a pp e llate
re vie w i s li mit e d to su ff

ic ie nc y of the evi den ce pu rs ua

nt t o Ru le 13 (e ) o f t

he Rul e s o f A

pp e llate Procedur e. State v. B urlison, 868 S.W .2d 713, 718-19 (Te nn. Crim. App. 1993). I f the re viewing court finds that the trial judg e has f ailed to fulfill his or her r ole as thirtee nth juror, the re viewing court must g rant a

new tria l. State v. Moats, 906 S.W .2d 431, 435 (Tenn. 1995)

. At the c on c lus ion

of the he ari ngon

the mot ion

fo r a ne w t ri al, th e tr ia l ju dg e state d h is fi nd ing s o n th is i ssu e a s f oll ow s: No, I ’m g oing to issue just a little written order . As to the [is sues] that were actua lly argued today , Mr. Robins o n (s ic), ther e wa s inconsistent testimony on-9-

wh e the r t he g un , an d I ’l l go thr ou g h tha t whe n I g ive it, bu t th e re wa s tw o d if fe re nt, one per son had the gun inside the v eh i cle, Mr. Robinson (sic) did not. I t never broac hed the plane of whe re the window would have been, had it c ome up, but it was at the window. One of the ot her witnesses testified t hat t he hand was a ctually inside,
and the n th e re wa s so me c on fu sio n p os sib ly e ve n o n th a t, a

nd I ’m g oin g to r e fr e sh my memory throug h my

notes on that.

As to the second deg ree murder and the provocation, in ac ting a s 13th juror, Ife lt that that, and sti ll f

e e l th a t th a t w a s a

jur y qu e sti on . T he re wa s d if

fe re nc e s in testimony as to how quickly

afte r this s t at em ent was made about “ cockin’ y our strap,” the shooting occur red any wher e from a minute or

so up to eig ht minutes, and Ithink it was absolutely

up to the j ury to deter

mine whether or not the dela y betwee n that statement an d t he ac tual shooting in ef fec t offset a

ny provocation that they thought may

have be en a of

[si c] it. S o, Idon’t think that the two [i ssues] that were argued today

have me rit and I ’ll respe ctfully deny those . . . .

There afte r, the trial court enter ed an order denying the motion for new t rial, si mply stating that “the [c] ourt finds no g rounds on which a new tria l should be g rante d.”

T h e D e f e n d an t r e li e s o nSt a te v

. Ru b y B r e e d e n , N o

. E 2 0 0 4

- 0 1 5 1 2

- CC A

- R3

- CD , 2 0 0 5 WL 3199280 (Tenn. Crim. App., Knoxville, Nov. 30, 2005), in support o f h i s contention that the trial judge abdicated his responsibi l i t y as t he thirtee nth juror. The tria l court in Br eede n made the fo llo wi ngc omm e nts , in

re le ve ant p art , a ft e r t

he de fe nd ant m ov e d f

or a ne w tri a l:

L ooking a

t the sufficie ncy

of the e viden ce , I t h i nk, if I ’m not mistaken,
so me on e ta lke d a

bo ut 1 3r th j ur or and I ’v e tho ug ht a

bo ut t hat f or so me tim e

. I t’ s ju st sim ply no t th e law in th is S tate, the Judg e is n ot 1 3th jur or . I ’m

to w e ig h— I ’m

to weig h the suffic iency

of the e vidence and not step in and play the extra juror and take the ca se basica lly

. 20 0 5 WL 3 1 9 9 2 8 0 , a t * 5

. B a s e d

u p o nth e tr ia l c o u rt’ s p r o n o u n c e me n ts in th a t c a s e , th is Co u rt conclude d that the trial cour t failed to ac t as thirteenth juror beca use the c ourt was unde r the mis take n im

pr e ssi on that it “ wa s n ot t o s e rv e a s the thi rt e e nth jur or a t a ll,

. . . b ut r a the r t o d e fe r t o the ver dict of the jury

without weig hing the evidenc e.” I d. at *7.

This case differ s proce durally from Br eede n in that the trial court he rein spec ifically stated that it wa s “ a c tin g a s 1 3th

jur or ” and , th e re a ft e r, de ni ed th e Defe nd ant’ s mo tio n f or a ne w tri a l. Moreove r, the trial co u rt was addressing two issues at the motion for newtrial hea ring —the Def endant’ s insufficient evide nce c laim and his thirteenth juror c laim. Some of the statements made by the tr ia l court we re re le va nt to the su ff

ic ie nc y ana ly sis and

so me we re re le va

nt t o th e thi rt e e nth juror ana ly sis. See State v. J err y Br eeding , No. M2001-00043-CCA-R3-CD, 2002 WL122931, at *11 (Tenn. Crim. App., Na shville, May 6, 2002).-10-

We find the fac ts of this case to be a kin to those presente d in State v. Robert Warre n Tillman, No. M2006-01716-CCA-R3-CD, 2008 WL1705062 (Tenn. Crim. App., Nashville, Apr. 14, 2008). See also B ree ding, 2002 WL 122931, at 10-*11

. I n T i l l m an, the trial court made the following
s t at em en t s at t h e m o t i o nfo r n ew t ri al h ea ri n g: The [c]ourt believes t h at t h i s wa s truly a cla ssic case wher e a jur y question was prese nted. We had the pr osecution’s case and we ha d the def ense’ s case , and the jury sid e d, e sse nti all y , with

bo th, in t hat it fo un d th e de fe nd ant guil ty on c e rt a in c ounts and not g uilty

on other c ounts. So i t was cle arly a jury question, and the [c]ourt be lie ve s th a t the e vid e nc e wa s su ff ic ie nt t hat ha d b e e n p re se nte d to the jur y fo r i t to
re nd e r i ts v e rd ic t. Tillman, 2008 W L1705062, at *6. This Court c oncluded that the trial court in Tillman had fulfilled its role as thirteenth juror by approvingthe ver dict and d eny ing the motion for a new trial: “The
rec ord [did] not refle ct that the trial c ourt, at any time, disag ree d with the jury ’s ver dict.” I d.

Con tr ary to the De fe nd ant’ s c on te nti on s, we fi nd no thi ngin t

he tr ia l ju dg e ’s state me nts to indicate that he was not satisfied with the verdic t or that he failed to weig h and conside r all of the evidenc e. Ac cording ly , the Def endant is not entitled to relief on this iss ue.
III. Chart A s h is th ir d is s u e , th e D e f e n d an t ar g u e s th a t “ th e tr ia l c o u rt e r r e d b y p e rmitting the pr os e c uto r to, in e ff

e c t, te sti fy thr ou g h e xpe rt wi tne ss K e nd a ll Ja e g e r b y te lli nghim

wh a t to wr ite in a cha rt that was se nt to the jury room as an e x hibit.” The De fenda nt relies on State v. Thornton, 10 S.W .3d 229, 235 (Tenn. Crim. App. 1999), for the proposition that the statements made by the prosec utor during Offic er Jaeg er’ s direct e x amination amounted to an ex pression of he r per sonal opinion about the vera city of pre vious St ate’ s witnesses.

Offic er Jaeg er, te stify ing a s an expert in firea rm t o o l m ar k identification, stated that he examined the evidenc e in this case a nd prepa red a repor t detaili n g h i s finding s. During his direct examination, the prosecutor instruc ted Off icer J aeg er to c onstruct a thre e-pa g e cha rt, explaining the purp os e of

the c ha rt a s f oll ow s:

No w, bec a

us e the re are so many

dif fe re nt n umb e rs inv olv e d, Iwa

nt you to just ex plain the various—other office rs have explained their part of the sy stem, but
we ne e d to e xpla in t o th e jur y ho w i t a ll f

its tog e the r so you

kn owwh a t is wh a t, wher e it came from and w hat it has to do with the case

.
I n e sse nc e , th e c ha

rt do c ume nte d O ff

ic e r Ja e g e r’ s f

ind ing s d e ta ile d in his re po rt and c or re la te d th os e finding s with the phy sical evide nce pr esente d in the case

. Following the cr eation of the char t, defe nse counse l objected. The following colloquy then
occur red:-11- [D E F E N SE CO U

N SE L ]: Y o u r H o n o r , I a c tu a ll y w r o te d o w n s o me of the things this witness said about how he didn’t know whose g un was whose , he didn’t know wher e it was re cover ed. When [t h e prosecutor] made a mistake in what she was telling him to write, he wrote down her mistake, and she ha d to say , “Oh, I made a mistake.” Ex hibits aren’t supposed to be t h e t est imony of the prose cutor g oing back into the [jury ] room. This wit ness has ve ry obediently

written down what she has told him to write down, but it’s not his work. I strong ly object to it goingback to the jury room. We can’ t have [the prosec utor’s] statements back in the jury room with the jury

. [PROS ECU TO R]: We ll, e a c h o f t he se ite ms— [DE F EN SE C OU

NSE L ]: Hi s r e po rt

wi ll c e rt a inl y

g o b a c k a

nd that’ s u p to them to decipher

. [P ROSECUTOR] : His report, no one can de cipher it, because as he sa id, he doesn’t use—e very

thing that he wrote dow n was fr om the bag s that they wer e wr itten
on and the office rs, for example, O ffice r Matthews is the easie st one , he testi fied, like, “B ag n u m b er one g oes with this. Bagnumber thre e g oes with that. Number four g oes with that.”
THE COURT: Yes, he was doing all that up until the l ast pag e or so and then y ou we re kin d o f t e lli nghim

.

. . . . THE COURT: No, so I rea lly need to look at it. During the first couple of pa g e s any wa y , th a t I c an d e te rm ine , h e wa s id e nti fy ingthe ba g fr om w hic h it c a me fr om a nd the n loo ke d a t his no te s. He wo uld sa y “ I te m numbe r e ig ht, ” the n h e wo uld g ive his persona l co d e, and the n he would re late it to exhi bit number, and then he would g ive his opinion as to what that was and what his c onclusions w ere when he
e xami ne d it . Tow ard s the e nd , it kin d of ch ang e d, I a g re e wi th that, but I ’l l hav e to l o o k a ti te x a c t l y.
At the conc lu s io n o f th e St a te ’ s p r o o f , th e is s u e w a s a g a in a d dr e s s e d b y th e p arti e s

. The following exchang e took place :

[DE F EN SE C OU

NSE L ]: To c ut i t sh or

te r, Yo ur Ho no r, act ua lly

on thi s example, Iwas objecting to [the copper jacke t] [si c] than Iam [the Defe ndant’s] gun, he doesn’ t know whose gun it was. He c an say it’s from the J enning s Br y co (phonetic)

.-12- [P ROSECUTOR] : You have to be able to keep the stuff straig ht some kind
o f w ay.
THE COURT: Another of fice r has a lrea dy

identified that particula

r we apon b e in g th e o n e th at w a s ta

k e nf r o m [ th e D e f

e n d an t]

. [DE F EN SE C OU

NSE L ]: No t th is w itn e ss. THE COURT: Well, no, but di d y o u ex p ec t him to testi fy from the ve ry be g inn ingthat he pu lle d h im o ve r o ut o n Ro lli n’ s Ma rk e t?
[DEFENSE COUNSEL ]: No, sir. THE COURT: We just spent a day -and- a-ha l f on cha in of custody . The chain of custody has been established and Iam not g oing to make them, this officer back he re, Jaeg er, r eesta

blish a chain of c ustody . Imean, he had—we know what that wea pon was a nd who it belong ed to.
[DEFENSE COUNSEL ]: I ’m not asking for c hain of c ustody to be g one into. I ’m asking for the e x hibit from this officer’ s testimony to refle ct what this offic er actua lly knew, not what other off

icer s testified to, not what other pe ople knew, that’s all I ’m asking for. He doesn’t know whose g un is whose. He c an labe l which g un it c a me fr om a

nd he did n’ t.

THE COURT: Over

ruled. The last pag e is to be take n out. Ultimately , the trial cour t disallowed the t h i rd p age o f t he cha rt, and the f

irst two pag es we re a dmi tte d a s e xhibi ts and us e d b y the jur y in i ts d e lib e ratio ns . O ff ic e r Ja e g e r’ s r e po rt

wa s a lso admitted into evidence

. Def ense c oun s el’s objec tion in the trial court was ba sed upon the e x hibit going to the jury
room rathe r than misconduct by the prosec utor. Def ense c ounsel did not move for a mistrial. On appea l, the Def

endant a sserts that the prose cutor improper ly commented on the c redibility of the State’s witnesses duringits ex amination of Ke nd al l J aege r and that a new tr ial is warr anted. He points to t he fac ts that the prosec utor direc ted the wording used on the char t a nd that Offic er Jaeg er had no per sonal knowledg e about some matters listed on the cha rt. I rre g ardle ss of possible waiver , we c onclude that e ither ar g ument of t he Defenda nt—improper comments by the prosec utor or the prese nce of

the exhibit during jury

deliberations—is wit hout merit.

The De fenda

nt’s relianc e on Thornton, 10 S.W.3d 229, i s misplaced. In Thornton, this Court ruled that c omments by

a prose cutor that he was “ver y proud” of

the cr ime lab and that “ they do an excellent job” was improper arg ument. 10 S.W .3d at 235. Her e, the prosecutor’ s statements made during the cr eation o f t h e ch art did not amount to vouching for pr evious testimony of State’s-13-

witnesses. See g ener ally

State v. Goltz, 111 S .W.3d 1, 6 (Tenn. C rim. App. 2003) (discussing the five g ener al ar eas of

prosec utori al m isconduct). The prosec utor was doingnothing more than
acc urate ly summarizing t he evidence previously admitted in this case. The char t was simply

cre ated to aid the jury

in analy zing the evide nce; it was a demonstrative e x hibit.

I n thi s re g ard , “ [d]e mon str a tiv e e vid e nc e is a dmi ssi ble on ly if re le va nt un de r Te nn e sse e Rul e o f E v id e n c e 4 0 1

. ” Ro n a ld B r a d f o r d Wa ll e r v

. Sate , N o

. E 1 9 9 9

- 0 2 0 3 4

- CC A

- R3

- PC , 2 0 0 0 WL 982103, at *15 (Te nn. Crim. Ap p

. , Kn o x ville, J uly 18, 2000). In other wor ds, demonstrative evidenc e should “a ssist t he trier of fa ct i n understanding and evaluating the ot her e vidence offe red at t rial.” I d. (citation om itted). Moreove r, “[ d]emonstrative evidenc e is

. . . often attacked . . . on g ro un ds tha

t it is too pr e

jud ic ia l unde r Rule 40 3. ” I d. Th e a dmi ssi on of de mon str a tiv e e xhibi ts i s within the discretion of the tria l judge , and t h at d i s cre tion will not be disturbed a bsent a c lear showing of abuse . State v. West, 767 S .W.2d 387, 402 (Tenn. 1989).

The matter s contained in the c hart we re in e vidence , rele vant to issues in the trial, and we re not overly

prejudicia l. We conclude that the tr ial court did not abuse its discre tion by allowing the jur y to u se the c ha

rt du ri ng delibe ratio ns . E ve n if e rr or is a ssume d, the jur

y wa s in str uc te d th a t it should base its decision on the proof offe red at trial, not the arguments of counse l, and the evide nce of the Def endant’ s g uilt of the offe nses was more than suffic ient. The De fenda nt has failed to show he wa s p re

jud ic e d b y

the c omm e nts , a

nd any e rr or is h arm le ss.

IV . W r itof Er r or Co r am No bis As his final issue, the Def endant argues that the trial court err ed in deny ing his pe tition for
wr it o f e rr or

c or a m no bis . On ap pe a l, the De fe nd ant ar g ue s tha t he i s e nti tle d to e rr or c or a m no bis relief beca use, throug h no fault of his ow n, “a pr ejudicial and e x trane ous piece of pape r mea suring 27" by 33" a nd captioned in r ed with the State’s theory of the c ase w as improper ly sent to the jury room as subst antive evidence for consideration by the j ury .” He c ontends that a ne w trial should be g rante d.

A writ of e rror

cora m nobis is available to a def endant in a cr iminal prosecution. Tenne ssee Cod e Anno ta te d s e c tio n 4 0- 26 -1 05 pr ov ide s, in p e rt ine nt p art , a s f oll ow s: (b) The relief

obtainable by

this procee ding shall be confine d to e rror s dehors the re cord a

nd to matters that wer e not or c ould n ot have be en litigated on the trial of the c ase, on a

motion for a

new tria l, on appea l in the nature of a wr it of err or, on writ of er ror, or in a habe as cor

pus proce eding . Upon a s h o wi ng by the def endant that the def

endant wa s without fault in failing to pre sent ce rtain evide nce at the proper time, a writ of e rror cora

m nobis will lie for subseque ntly or new ly discovere d evidenc e re lating to matter s which we re litig ated at the trial if the judg e dete rmines that such evide nce ma

y have resulted in a differe nt judgment, ha d it been pre sented
a t th e tr ia l.-14- (c) The issue shall be tried by the court without the intervention of a jur y , and if the decision be in favor of the petitioner, the judg ment complained of shall be set aside a nd the def

endant sha ll be g rante d a new trial in that cause

. Tenn. Code Ann. § 40- 26-105.

A writ of error

cora m nobis is an “extraordinary proce dural re medy ,” filling only a “slig ht g ap into which fe w ca ses fa l l

. ” S t at e v

. Mix on, 983 S.W .2d 661, 672 (Tenn. 1999) (citation omitted). “The pur

pose of this reme dy

is to bring to the attention of the court some f act unknown to the court whic h if known would have resulted in a diffe rent judg ment.” F reshwater v. State, 160 S.W. 3d 54 8, 55 3 (T e nn . Crim . App . 200 4) (q uo tin g State v. Ha

rt , 9 11 S.W. 2d

37 1, 37 4 ( Te nn . Cr im. App. 1995)). T he dec ision to gra nt or deny a petition for wr it of err or cor am nobis rests within the sound discretion of the tr ial court. Te nn. Code Ann. § 40-26- 105; Hart, 911 S.W.2d at 375.

To establish that he is entitled to a new trial, the De fenda

nt must show the f

ollowing: (a ) the g ro un ds and

the natur e of th e ne wl y

dis c ov e re d e vid e nc e ; ( b) wh y the a dmi ssi bil ity

of the ne wl y discovere d evidenc e may have resulted in a differ ent judgme nt if the evidenc e had be en admitted at the pre vious trial; (c) that the Defe ndant was w ithout fault in failing to pre sent the new ly discovere d evidenc e at the a

ppropriate time; and (d) the r elief soug ht. Fre shwater , 160 S.W .3d at 553; Har t, 911 S.W .2d at 374-75.

The g rounds for se eking a peti t i o n for wr it of err or cor am nobis are not limit ed to s p ec i fi c categ ories, as a re the g rounds for r eopeninga post-convic tion petition. Coram no b i s claims may be base d upon any

“new ly discovere d evidenc e relating to matter s litigated at the trial” so long as the petitioner a lso establishes that the petitioner wa s “without fault” in fa iling to prese nt the evidenc e at the pr oper time.

Har ris v. State, 102 S.W .3d 587, 592-93 (Tenn.2003)

. To be succe ssful on a petition f or a wr it of
err or cor am nobis, our supreme court re cently held that “the sta

ndard to be applied is wheth er the
new e vidence , if prese nted to the jury , may have r esulted in a di ff

er en t outcome . . . .” State v. Vasque s, 221 S.W .3d 514, 526 (Tenn. 2007)

. The De fenda

nt cites to State v. Malinda L

. Mason, No. M2005-01961-CCA-RM-CD, 2005 WL 3038612 (Tenn. Crim. App., Nashville, Nov. 10, 2005), to support his argument that the jury
was e x posed to extraneous information and a new trial is war rante d. Acc ording to the Def endant’ s alleg ations, the newly discovere d evidenc e is a poster -size document summarizing the testimony of
an e y e wi tne ss w ho g a ve inc on sis te nt a c c ounts of wh o s ho t f

ir st i n th is h omi c ide c a se . In M a so n, thi s Court made the f

ollowing state ment: “I t would be hard to conclude under any scena rio that a wr itten summary of any prosec ution witness’ s testimony , not ma de an exhibi t, a nd prese nted to a jury

during deliberations, would not be prejudicial.” 2005 WL 3038612, at *4.

The trial c ourt noted that t he initial inquiry is whether the jury

was a ctually

exposed to the inf or ma tio n. I t is we ll- se ttl e d la w that, “ wh en it has been show n th a t a jur or wa s e xpos e d to-15-

extraneous pre

judicial information or subjec ted to improper influe nce, a rebuttable presumption of prejudice arises, a

nd the burde n shifts to the St ate to explain the conduct or demonstrate that it was harmless.” Walsh v. S tate, 166 S.W.3d 641, 647 (Tenn. 2005)

. T h e t ri al cour t rec ounted the testimony g iven at the c oram nobis hea ring and conc luded, “[T]he Court is not satisfied that [the Def endant] has ca

rried his burde n that [t he unmar ked cha rt] or the ‘non-e x hibit’ was viewe d by the jury during deliberations . . . .” The c ourt g ave se vera l rea sons in support of its opini on: that there
w e r e m u l t i p l e s a f

e g u ar d s i n p l a c e t o p r e v e n t t h e s u b m i s s i o n o f e x t r an e o u s i n f o r m a t i o nt o t h e j u r

y, that there was a

signific ant likelihood of discover y of any mis t ak e, that Mr. L ockridg e sig ned the exhibi t list as ac curately descr ibing all exhibi ts submitted to him, and that the juror s’ testimony was not corrobor ated by

the other juror s.
The trial c o u rt , as s u m i n g arguendo that the doc ument was view ed by the jury , also stated,

“ [T]hi s [c ]our

t f ind s n o e vid e nc e to s up po rt the pr op os iti on

tha t the inc lus ion

of the no n- e xhibi t during jury

deliberations may

have a ffe cted the judgme nt in this case.” T he trial c ourt distinguished the Mason ca se, cor

rec tly rea soning that, in this case , the ex trane ous information was c reated by the assistant district attorney in open cour

t in front of the jury

repr esenting a sy

nopsis of the witness’ testimony g iven in open court in fr ont of the jury

. . . . There is nothing e x trane ous about what wa s contained in the document and no inf ere nce c ould be draw n t h at an y of the infor

mation was
e n d o r s e d b y t h e d i s t r i c ta t t o r

n e y g e n e r a l o r

t h e D a v i d s o nC o u n t y G r an d J u r y.
Th e tr ia l c ourt

fu rt he r d if fe re nti a te d th is c a se fr om M a so n, statin g a s f oll ow s:

I n this case, the notat i o n s o n the document a ddresse d the cr edibility of the witness ac t u all y

testify ing. . . . U nlike Mason, this summary of the prose cuting witness’ testimony is not corr oborative of other testim ony

. I n fac t, it contradicts the testimony of other e y ewitnesses a

nd, there fore , is favora

ble to [t he De fenda

nt] , if the j u r y e l e c t e d t o a c c e p tt h i s t e s t i m o n y a f t e r w e i g h i n g h i s c r e d i b i l i t y.
Addre ssing the D efe ndant’s asse rtion that the document memorialized the State’s theory of the ca se, the trial c ourt found, “I f it did, then the jury ’s o n l y l o gi cal c onclusion would be that the State doesn’t know what happened.” As also noted by the trial cour

t, if the Def

endant be lieved the document to be inac curate, then the Def endant could have objected. Ag ain, we note that the jury was ins tr uc te d th a t it sh ou ld ba se its de c isi on on the pr oo f o ff e re d at tr ia l, n ot t

he argume nts of

c ouns e l.

The Def endant contends that, “had the err or been discovere d prior to the verdic t, th e t ri al
c ourt wo uld have ha d a

n o pp or tun ity to c on sid e r w he the r a curativ e ins tr uc tio n w ou ld s uf

fi c e to p r o t e c tt h e [ D ] e f

e n d an t ’ s r i g h t s , o r

w h e t h e r a m i s t r i a l w a s r e qu i r e d

. ” T h e t r i a l c o u rtd e t e r m i n e d , “ It is not the consideration o f a m i s trial that is releva nt. That is obligator

y . The issue is whethe r the mis tr ia l w a s a

re a so na bly le g iti ma te c on sid e ra

tio n, wh ic h it

wa s n ot in this c a se .” Th e tr ia l c ourt a lso discussed the e vidence prese nted at trial and stated that “[t] he docume nt did not bring to the juries-16-

[si c] attention evidence not otherwise pr esented t o them. They hear d that evidenc e and r ender ed their ver dict on that evidenc e.”

To the e xten t th at th e Defend ant r a ise s a c og niza ble c la im und e r t

he e rr or c or a m no bis statute, the De fenda

n t h as fa i l ed to establish that the subseque ntly or new ly discovere d evidenc e might have resulted in a d i ff er en t j udg ment had it been pr esente d at the trial. We ag ree with the rationale provided by

the trial cour

t in its extensive and thoroug h order . We c onclude that the trial court did not err

or abuse his discretion by denying the petition.

CO NC LU SION Ba sed on our r eview of

the re cord, the parties’ briefs, a nd the applica

ble law, we conclude that th e e vid e nc e wa s su ff ic ie nt t o su

pp or t the De fe nd ant’ s c on vic tio ns be y on d a re a so na ble do ub t, that th e tr ia l court fu lf

ill e d its re sp on sib ili ty a s th ir te e nth jur or , a nd that tr ia l c ourt

did no t a bu se its discretion by admitting the char t cre ated by Offic er J aeg er. We further conclude that the trial cour t proper ly denied the D efe ndant’s petiti on for writ of err or cor am nobis. Acc ording ly , we a ffirm the jud g me nts of

the tr ia l c ourt

.

______________________________ DAVI D H. WEL L ES, J UDGE