### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs J anuary

27, 2004

STATE OF TENN ESSEE v. JACOB EDWARD CAMPBELL
Direct Appeal from the Criminal Court for Davidson County No. 2001-B-896 J. Randall Wyatt, Jr., Judge

No. M2003-00597-CCA-R3-CD - F iled March 15, 2004

A Davidson County jury

convicted the Defendant, Jacob Edward Campbell, o f pr emeditat ed first degree murder, felony

murder, and robbery , and the trial court merged the two murder convictions into a single offense of first deg ree murder. Thereafter , the jury sentenc ed the Def endant to life imprisonmentwith the po ssibility of parol e for

first degree murder, and the trial court imposed a tenyear sentenc e for the

robbery convicti on to be serve d consec utively to the Defendant’s life sentence. Onappeal, the Defendant

contends that: (1)the evide

nce was insuffic ient to sup

port his c onviction s; (2) the trial court erred by admitting into evide

nce cri me scene photogr aphs of th e murder

victim; (3) the trial court erred

by admitting into evidence testimony reg arding pills found on the Defendant when he was arrested; (4) the trial court er red by allowing

a State’s witness to read to the ju ry a summary of the witness’s pre-trial statement to police; (5) the trial court er red by deny

ing the Defendant’s request to introduce a prior recorded state ment of an unavail a ble witness to impeach
a State’s w

itness; ( 6) the trial court erred by not clarifying

its jury charg e that the jury could not consider evidence introduced at trial concerning the co-defendant; an d (7) the trial court erred by orderin g that th e senten

ce for r obbery run conse cutively

to the Defendant’s life sentence. Finding
no rever sible err or, we a ffirm the

trial cou rt’s judg ments. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and A LAN E. G LENN , J., joined.

David M. Hopkins, Nashville, Tenness ee (on a ppeal) and James L. Weatherly , Nashville, Tennessee (at tria l) for the appella nt, Jacob Ed

ward Cam

pbell.

Paul G. Summers, A

ttorney Genera l and Reporter; Mic

hael Moor

e, Solicito

r Gener al; Bre nt C. Cherry , Assistan t Attorne y G eneral ; Victor S. Johnson, I II , Distric t Attorne

y G eneral ; Dan Hamm and Katrin Miller, Assistant District Attorney G enerals, for the appellee, State of Tennessee.-2- Opinion I. Facts

This cas e involves the death of eighty -two year old William Satterfield, whose bod y wa s found in the basement of his east Nashville home on July 17, 2000, after intruders bound his hands and ankles with a telephone cord and duct tape, stuffed his mouth wi

tha wad of paper towels, taped his mouth with duct tape, placed a plastic grocery bag over his head a

nd seale d the bag

around h is neck with duct t ape. Th e intr uders stol e the v icti m’s ca r, gu ns, jewelry a n d other ite

ms from his home. Th e D av id so n C ou nt y Gr an d J ur y indicted t he Defendant, Jacob Edward Campbell, for premeditated

first degree murder, felony murder and robbery

for the crimes committed against the victim.

The following evidence was presented a t the Defendant’s trial. Tony Roberts testified that he was a g ood frie

nd of the v

ictim and o ften dro ve the victim on err ands. Robe

rts s tated th at the victim lived at 1139 Shelton Avenue in Nashville and had just turned eighty -two when he was killed. He stated tha

t the victi m paid cash for a new white Oldsmobile in 1999, but did not drive the car. He testified that, despite beingeighty- two years old, the victim was “an independent gentleman” and tried to take care of himself, though he rec eived some assistance from the “Meal s on Whee ls” program. Roberts explained that the victim did not trust banks to keep his money and often spoke of keeping large a

mounts of cash in his home.

Roberts testified that on July 18, 2000, he calle d the vict im’s house

to check o n the vict

im, butthe victim

did notanswer the phone. Roberts stated that he drove to the victim’s house around 2:30 p.m. and noticed “there was some cushions sitting on his front porc h and his car was gone,” whichwas unusual. Roberts stated that he thought that the victim may have g one to the store, so he waited for the victim on the front porch. He explained that, after an hour, he walked acr oss the street and talked to some neighbors to see if they had see n the victim, but they had not. Roberts then called Robert Adcock, who was a

friend o f the vic tim and live d one st reet over, and aske d him to come
over to the victim’s house. Roberts stated that he and Ad

cock de cided tocheck inside the victim’s house, and, as t

hey appro ached the door, they noticed that it was unlocked and partially open. Roberts ex pl ai ne d t ha t t he ho us e “ wa s i n t ot al di sa rr ay. Furniture was upside down . . . [a]nd it was just in shambles, things knocked over . . . just tra shed thro

ugh.” Ro berts stated tha

t he immedi ately called 9-1-1, a nd the poli ce came

to the victim’s house. He stated that he gave police a description of the victim’s white Oldsmobile.

Roberts testified that he knew the Defendant because the Defendant was Adcock’s g randson and would often

mow the vic

tim’s gr ass. He s tated tha

t the victi m kept two shotguns

in one corner of his house, two handguns in his recliner, and one handgu n under h

is pillow in h

is bedroo m. Roberts testified that he and the victim wro te down the serial numbers of the guns “for re cord keepingsake, for safety .” Roberts identified two guns that were introduced by the State as belonging to the victim . Roberts t

estified that the victim had s ome jewe lry , includin g some rings and several pocket w atches.-3-

Paul Sharp, an officer with the Metropolitan Police Department, testified that he responded to a 9-1-1 c all at 113 9 Shelton A venue in the Englewood section

of east Nashville on July 18, 2000, at 5:03 p.m. Officer Sharp stated that he spoke with Roberts and Adcock and then entered the victim’s home. The officer said that there were no signs of forced entry

to the front door, but “it was obvious some ransacking had taken place.” The officer testified that he f ound two rolls of

duct tape
on the bed in

a bedroom and discovered that the phone cord in that room had been ripped from the phone. Officer

Sharp sta ted that, after ta

lking wit h Roberts and Adcock about the victim’s guns and valuable s, he and

another officer made

a further inspection of the victim’s home and discovered that the intruders had taken the victim’s guns, jewelry , car and cash. The officer explained that he and the other officer went to the basement, which had a dirt floor, but did not see anything disturbed. He stated tha

t he and th e other o fficer left thei r footp rints in the dirt floor as they inspecte d the basemen t. Officer Sharp testified

that he assumed that a serious crime had been committed, so he notified the Homic ide Divisi on, the B urgla ry Div ision and the Identification Division of the MetropolitanPo lice D epartment. He stated that he had the police dispatchers request that police officers stop and pick up the victim or his vehicle.
Jeff West, a detective with the Homicide Division of

the Metro

politan Pol ice Dep artment, testified that he investigated the disappearance of the victim on July 18, 2000. He stated that, after talking with

Officer Sharp and the other office rs at the scene, he conducted a thoroug h search of the house, starting on the second floor and working his way to the basement. The detective testified that he found the victim’s body in the basement. On cross-examination, Detective West stated that it was obvious that the victim’s body had been placed in the basement and not thrown down the stairs. He explained that the victim’s hands and ankles were tied wi th a telephone cord and taped with duct tape. Detecti

ve West tes tified tha

t there w as a

plastic Kroger shopping bag over the victim’s head, which was taped to the victim’s neck with duct tape.

Earl Douglas Hunter, an officer with the Identification Division of the Metropolitan Police Department, testified that he arrived at 1139 Shelto

n Avenue at appro ximately

6:40 p.m. on July 18, 2000. Officer Hunter stated that he noticed that a phone cord, without a phone attached, was ly ing
on the floor in the living room and one “house shoe” was on t he dining room floor. The officer stated that a “chew” of tobacco had be en spit out on the dining room table, and a ba g full of Kroger pl astic bags was on the kitchen floor, with one or two bags pulled out. The office r stated, in one bedroom, he discovered that several drawer s had been dumped out and that many items were on the floor. He stated that

he and a nother of ficer e ntered t he back bedroom a

nd found two rolls of duct tape on the bed and a phone, with no cord attached, on the bed. O ff icer Hun ter testified that he found the victim’s body in the basement under an egg-cra

te foam mattress. The officer stated that he felt the victim’s feet and discovered that they were cold and noticed that the victim’s leg was stiff, indicating that his body wasin rigor mortis. Th e offic er explain ed that th ey

lifted the mattress off the victim and

discovered that the victim’s head was covered w ith two plastic K

roger bags a nd his hands were tied behind h im. Offic er Hunte r testifie d that the

y c alled fo r the med

ical exami

ner to examine the victim’s body. The offic er identified several photogr aphs he to ok of the h

ouse and of the victim

.-4-

Oncross-examination, Officer Hunter testified that he proce ssed many

items in the victim’s house for latent fingerprints, including items on the floor of the house. He stated that he also took six sets of shoe impressions to eliminate the six patrol of ficers t hat had w alked thr

ough the crime
scene. The offi cer expla

ined that he found some tenn

is shoe prints in the house and lifted those shoe prints from the floor using black powder and four-inch tape. Officer Hunte r stated that he believed the victim’s body had been in the ba sement for at least twelve h ou rs, based upon the body’ s condition. The officer explained that no blood samples or hair samples were taken at the crime scene and no carpet fibers or clothing fibers were found.

William Kirby, an off

icer with the Identification Division of the Metropolitan Police Department, testi fied th at he processed the crime scene a long with Officer Hunter by taking photogr aphs, some of which the State offered into evidence, and by making a diagra m of the crime
scene. Officer Kirby

testified that in order

to get a more detailed photograph of the victim’s face,
anassistant medical examiner lifted up the grocery bag from the victim’s face. He explained that,
u nderneath the plastic grocery bags on the victim’s head, he and the assistant medical examiner noticed that the victim’s mou

th was taped

with duct tape. Officer Kirby stated that, “when we pulled off the d uct tape , the wad

of paper towels ca me out of the mouth.” The Defendant objected to the introduction of the photographs of the victim’s body contending that they were unfairly prejudic ial, butthe trial court overruled the objection. The officer stated that he believed that the victim’s ankles and hands were tied with the telephone cord taken f rom the upstairs bedroom.

Nora Campbell, the Defendant’s sister, testified that on July 17, 2000, t

he Defe ndant ca me to her home

at about 10:30 p.m. with Jarret Guy, his wife Ang ela Guy, a nd the Guys’ new

born child. She explained

that the D efenda

nt asked her whether he an d the Guy family could spend the night at her home, and she agreed. Campbell stated that the De fendant and Jarret

Guy paid her $100 cas h to spend the

night. Sh e testi fiedthat she to ld the Def endant a nd the Guy

family that they had to leave the next day before

her boyfriend c ame to help her move. Campbell stated that the Defendant and the Guy family

arrived at her home in a

new white car that she did not recognize. Afte r viewing a photograph of the victim’s car, Campbell testified that the victim’s car was the one in which the Defend ant and th e Guy

family arrive d. Campbe ll stated that she was told that the car belong ed to Jarret Guy’s brother

-in-law. She testif

ied that, while the

Defend ant and th e Guy

family were in her home, she found several guns and some jewelry that did n ot belong to her under her kitchen sink. Campbell stated that she asked who owned the guns and jewelry , “But there was nothing else said about it.” She explained

that afte r the Def endant a nd the Guy

family left, the items under the sink
were gone. She identified photographs of the victim’s g uns and jewelry a s being photographs of the items she found

under th e sink. She stated that the Defendant and Jarret Guy also brought prescription

drugs into her house, and she believed the drugs were “Meperg an and either Xanax or Valium.” She stated that the Defendant and the Guy fa

mily left her home on the morning of July 18, 2000. Campbell

testified that, after the Defendant and the Guy family left, Jarret Guy

dropped the Defendant

back off at her house later that afte rnoon. She stated that she drove the Defendant over to her friend Barbara H ale’s house and dropped him off. She explained that, while they were in the-5-

car driving to her friend’s house, the Defend ant “just stated that something bad had happened. And he said he loved me . . . .” Campbell stated that she asked the Defendant, “‘well, y ou haven’t killed
an ybo dy, have you?’ And t he conversation pretty

much dropped from there.” Campbell testified that the Defendant lived with their grandpar ents, Robert Adcock and Rub y A dcock, in east Nashville, and, after dropping off the Defe ndant, she drove to her grandpare nts house to get the Defendant

some clothes at his request. After getting the Defend ant the c lothes, she stated that she picked up the De fendant

from Hal e’s house

and drov e him to the

Super 8 Mo tel in Good

lettsville at 12:00 a.m. on July 19, 2000.

Oncross-e

xamination, Campbell

testified that

during t he nigh t of July 17, 2000, a

nd the ea rly morning of July 18, 2000, Jarret Guy went to the white car and retrieved some “c rack” cocaine. She stated that everyone , including herself, used the “crack” cocaine throughout the night, and none of them went to sleep.

Charles McEwen, Sr., testif ied that, on July

17, 2000, Jarr

et Guy and the D efenda

nt came to his house a

nd tried to

sell him two shot

guns. Mc Ewen, Sr. , stated that they arrive d at his hou se in
a white car, and he confirmed that the car he observed

was the sa

me as the photograph of the victim’s car. He testified that he did not buy the guns because h e did not have any mone y at that time, but allowed Jarret Guy and the Defendant to store the shotguns in the loft above his gar age. McEwen, Sr., said

that the two men told

him that they would pick the g uns up later. McEwen, Sr., identified photographs of the victim’s shotguns and the shotguns themselves a s the shotguns the two
mentried to sell him. McEwen, Sr., testified that Jarret Guy and the D efendant never retrieved the guns. He stated

that a pol ice off

icer ca me to his ho

use and a sked him

whether he knew Jarret Guy and the Defendant, and he initially denied knowing them. McEwen, Sr., t es tified that, after the officer told him what had happened to the victim, he admitted that he knew Jarret Guy and the Defendant

and told the officer about the shotguns located in his ga rage. On cross-examination, McEwen, Sr., stated that he did not think the shotguns were stolen at the time of the attempted sale.

Charles McEwen, Jr., testified that he was at home with his father McEwen, Sr., on July 17, 2000, when Jarret Guy a

nd the Defendant came to their house. He explained that he ha d known Jarret Guy for seve

ral months, but he had only met the De fendant once before July 17 , 20 00. He stated that the two men arr

ived at hi s father ’s house i n a white car, with Jarret Guy

driving and the Defend ant in the passeng er seat

. McEwen, Jr., stated that the Defendant and Jarret Guy got out of the car and started talking with his father. H e expl ained that Jarret Guy ha d two pistols tucked visibly into his pa

nts, and th e Defe

ndant had one pistol

tucked in to his pant s. He stated that Jarret Guy had two shotguns a

nd “[a]ske d my

father [if he] would . . . hold them for a couple of hours, that he was coming back to get them.” McEwe n, Jr., stated that his father agreed to hold the guns and told the men to

place the guns in the loft above the ga rage. He identified photogra phs of the guns and confirmed that

they were

the s hotguns the men attempted to sell to his father. McEwen, Jr., testifie d that the

Defend ant and Jar

ret Guy never r eturned to retrie ve the sho tguns. Angela Danielle Guy, Jarre

t Guy’s wife, testified tha t, in July of 2000, she and her husband lived in east Nashville with their five-month old daughter. Ange la Guy stat ed that their daughter-6-

was born prematurely

and, therefore, required a special monitor and oxy gen. She testified that, on July 15, 2000, she heard a conversation between he r husband and the Defendant at their apartment “about making s ome money

,” and the Defend ant “men ti oned that

h e knew w

here to m ake some
mo ne y. A friend of his grandfather’ s kept large sums of mon ey

because he didn’t believe inbanks.

. . . He mentioned that he was an old man.” Angela Guy testified that the Defendant stated that the victim lived in the Englewood area near a Kroger’s grocery

store. She stated that

the Defe ndant told her husband that the victim had “any where from twenty

-five to fifty thousand dollars. It was a l arge sum.” She said that the Defendant stated that the victim would go grocery shopping every

Monday and “that he usually stay

ed gone about three hours.” Ang ela Guy testifie d that, on M onday July 16, 2000, the Defendant came to their apartment in mid-morning a nd visitedwith her husband for about two hours. She explained, “They [were ] just talking about [how] they were g oing to hang out that day . . . .” She stated that the Defend ant and he r husband left, and she thought they were going over to the Defendant’s hom e. Ange la Guy testified that at a bout 3:00 or 4:00 p.m. on July 16, 2000, “Jarret [G uy] c alled an

d said he w as going

to go to Kroger’s. . . . That meant that they we re going to go break into the house.” Angela Guy testified that

her husba

nd calle d her ag ain a fe

w hours la

ter and t old her to lock the front door. She stated that, about five minutes af ter the phone ca

ll, Jarret Guy drove up to the house ina new

white Oldsmobile that she had never seen before with the De fendant in the passenger seat. She identi fied a photogra ph of the v

ictim’s c ar as the same car that Jarret Guy and the Defendant

were driving. She explained, “As soon as I had opened the door, they came in. They

kept running back and forth to the car, getting property out of the

car. . . . It was merchandise f rom the house.” Angela Guy

stated that the D efenda

nt and Jarr

et Guy carrie d in guns , some cash and change, shotgun shells, bullets and pills, including some nitrogly cerine pills. She recognized photographs of the victim’s guns as the guns that Jarret Guy and the Defendant

brought back from

the victim’s house. Angela

Guy also rec ognized a

black ba g conta ining some loose change and a few piec es of je we lr y, including a watch, that the Defendant and Jarre t Guy broug

htinto her

house. Angela Guy testified that the D efenda

nt and Jarr

et Guy told her that the white Oldsmobile was the Defendant’s aunt’s or cousin’s car, but she did not

believe them. Angela Guy testified that, once

her husband and

the Defendant came into the house, “[t]hey started going through t

hings, so rti ng things out, seeing what was wor th money and what wa sn’t worth money, throwing

things away

that weren’t . . . valuable. And then they [were] discussing . .

. how much they

[were] going to sell this for, how much they were going to sell that for.” She stated that the Defendant and her husband were looking at some pocket watches on the bed and discussing whichones “we

re worth some money.” She explained that the De fendant and Jarret Guy had “a lot” of cash, but she did not ask about it “[b]ecause every thing was happening so quickly .” Angela Guy testified that Jarret Guy counted the c ash and then gave the Defe ndant “his half of

the money,” but she did not know how much. She explained that Jarret Guy “told two differ

ent stories” about how much money he g ot, telling her that he got $400 one time and $900 another time. Angela Guy stated that her husband “was running around, running past me,” and the Def

endant and Jarret Guy

were acting “real[ly

] nervous.” She said that Jarret Guy “e ven went to the restroom and got sick.” She explained that the Defendant and Jarret Guy were sweating and appea red to be out of breath.-7-

Angela Guy stated that the

two men left the house with two shotg

uns, some shotgun s hells,
some pills and cash. She stated that she did not accompany the Defendant and her husband when they left to sell the shotguns, but she explained that her husband told her “to get the baby’s th ings together because we were leaving once he

got back.” Angela Guy

testified that they wer

e gone for about an hour and a ha lf and then returned to the house in the early evening. She said that they stayed at the house for about forty -five minutes so she could get the baby ’s equipm ent rea dy t o go. She explained that she, the baby, her husba nd and the Defendant got into thewhite Oldsmobile, and Jarret Guy drove them to Nor

a C ampbell’s house, who was not at home when they arrived. She explained that the D efenda

nt and Jarr

et Guy went to the back of the house and entered. She stated that Campbell arrived at her h ouse s hortly thereafter, a

nd the De fendant

and Jarre t Guy each pa id Campbell some money to spend the nig ht at her house. Angela Guy stated that she, the ba by, Jarret Guy

and the Defendant

left the next day, July

18, 2000, in the white Oldsmobile, and Jarret Guy drove them to the Supe

r 8 Motel in

Goodletts ville where they g ot one room. She said that she thought that Jarret Guy chec ked them into th e motel. She explained that the Defendant and Jarret Guy brought the jew elry , the pil ls, two pist ols, some shotgun shells and some cash into the motel room. Angela Guy said that, at some po int, Campbe ll
cameto the motel room and gave the Defenda nt some clothes. She stated that, after they had been in the room a few hours, the police came to the motel room at about 2:00 or 3:00 a.m. on July 19, 2000. She explained that Jarret Guy was in the

white Old smobile wh en the pol ice arr ived bec ause she asked him to retrieve something for the baby

. Angela Guy testified that the police “started beating on the doo r. And I told them ju st to hold

on a second, because [the Defendant] had a g un. And they asked me if anybody was armed. And I told them to hang on a second. And

I was try ing to talk to [the Defendant].” She said that the Defendant told her to get in the ba th tu b w it h t he ba by. She explained that, while she was talking to police, “[the Defendant] had manag ed to get the . . . mattress up. And he had climbed underneath, in between the mattre ss and . . . up under the box springs.” She testified that it was obvious the D efendant was under the box springs because the mattress was over to the side. She explained, “And the police officer asked me . . . to coope rate and tell me if anyone e lse was inside the room. And I told him that [the Defendant] was in the room.” Angela Guy stated that the police the n arrested the Defendant at the motel room. She stated that the police found the pistols, crack cocaine, prescr iption drugs and the jewelry in the mote l room. She explained that Jarret Guy and the De fendant purchased the crack cocaine

while they wer

e staying at Campbell’s house.

Oncr os s- ex am in at io n, An ge la Gu y t estif ied that she had convictions for criminal impersonationand shoplifting, and she was recently arrested for unlawful use of a motor vehicle

. She stated tha

t she was a

drug us er in

the past, but she was particip ating in rehabil itation pr

ograms

. She explained that in July of 2000 she was u sing “c rack” c ocaine on a reg

ular bas is. She sai d

that she smoked “crack” cocaine whe n she was pregnant and

continue d to smoke it after the baby was born. Angela Guy

testified that Jarret Guy was a lso a habitual “crack” cocaine use r. She said that neither she nor her husband worked. She e xp lained that she spent at least $20 a day on “crack” cocaine in 2000 and borrowed money from family and f

riends to support her habit.-8-

Angela Guy stated that Jarret

Guy would commit burglaries and then sell the stolen goods in order to raise money

to buy “cra

ck” cocaine. She said that she never accompanied Jarret Gu y when he committed burglaries. Angela Guy testified that, on July 15, 2000, the Defendant and Jarret Guy attempte d to recruit Brian Bry ant to participate in the robbery of the victim, but Bryant re fused to p articipate in the robbery . She denied telling Jarret Guy that “Brian Bry

ant was weak, that he wouldn’t be back .” Ange la Guy

explained

that the D efenda

nt told Jarret Guy that the

victim’s house was near Kroger’s g

rocery store in the Englewood ar ea of ea st Nash ville. She stated that the Defendant

never drove the white Oldsmobile, rather Jarret Guy drove it, and the D efendant rode with him. She ad mitted that Jarret Guy had stolen cars before, and she thought that he had stolen the white Ol dsm obile when he pulled up to the house in it. Angela Guy testified that she told her husband to remove the items from the house after he broug htthem inside. She stated that she has not been c

harge d with any

crimes r elated to the robbe ry and murde

r of the victim.

Mike Singleton testified that he was a caregiver for the victim before he was murdere d. He stated that the victim

had a he rnia ope ration in the summer of 1999, so he staye d with the victim at the victim’s house and cared for him until after Christmas of 1999. Sing leton stat ed that hi s finger prints would be in the victim’s house because of his extended stay at the house in 1999. On
cros s-exam ination, Singleton testified that the victim did not have “a whole lot of company .” He stated that the victim had a habit of sitting on his front porch and talking with his neighbors, a nd the victim would not hesitate to talk with strangers that came by his house.

Grant Carroll, an officer with the Metropolitan Police Department, testified t hat he wa s patrolling the east sector

of Nashville on July 19, 2000, when he heard the dispatcher asking officers to “be on the lookout” for a stolen white car that

was connected to a murder. The offic er stated that the alert gave the tag number and told of

ficers t hat two wh

ite men an

d a white woman may

be with the stolen ca

r. Offic er Carrol l stated that he wrote the stolen car’s tag number down and began actively looking for the new white Oldsmobile. The officer explained that he“started looking in .

. . motel pa

rking lo ts in the Go odlettsvil le area .” Offic er Carr oll testified that he spotted the stolen
car in the parking lot of the Super 8 Mot el, so he report ed that he found a vehicle and requested backup. He stated that the car was occupied by a white man who appeared to be asleep. The officer testified that he and some other officers drove ar ound the corner of the building, exited their vehicles and approac hed the w hite Oldsmobile. He explained that the man, who was later identified as Jarret Gu y, exited the car

and turned toward the officers, so the office rs drew their weapons and ordered Jarret Guy to turn around a nd put his hands behind his back. Officer Carroll testified that he took the Super 8 Mo tel room c ards f rom Jarret Guy , and the motel office scanned the cards a nd determined

that the cards were for room 156. The off icer stated that he and the other officers went to room 156, knocked on the door, announced that they were police officers and requested that the occupants voluntarily talk with them. The of ficer explained that a white woman came to the door holding a baby, a

nd then they found

the Defendant standing by a bed in the room. The officer stated that the Defe ndant wa s taken in

to custody

and plac ed in the b ack of hi s patrol car. On c rossexamination, the officer

stated that the Defendant was not hiding in the room and was not ca rrying
an y we ap on s w he n h e w as ta ke n i nt o c us to dy.-9-

Jerry Hutchinson, an officer with the Metropolitan Police Department, testified that he, and another offi cer in hi s patrol car, responded to a call from Offic er Carroll requesting backup at the Super 8 Motel in Goodlettsville on July 19, 2000, because the officer had loca ted the sto len white Oldsmobile. Officer Hutchinson stated that, once he and the other officers entered the Defendant’s motel room, he f

risk ed the Defendant before placing him under arrest. The officer explained that he found some

red pills i

n the Def

endant’ s l eft front

pocket. The Defendant objected to the introduction of the pill s into evid ence, b ut the tria

l court ov errule d the obje cti on. O n crossexamination, the officer stated that no weapons were found on the Defenda nt at the time of

his arre st. Johnny Lawrenc e, an officer with the I dentification Division of the Metropolitan Police Department, testified that he assisted another officer in processing the scene at the Supe

r 8 Motel in Goodletts ville at aroun

d 4:30 a.m. on July

19, 2000. O fficer

Law rence t estified that he he lped to locate and colle ct evide

nce in mot

el room 15 6, and he

describ ed photog

raphs ta ken of th e motel
room. The officer stated that they found a folded towel cont aining j ewelry on the bed , a stainle ss steel plated ha

ndgun withpearl ha

ndles on it

and six bulle

ts next to it hidden under the mattress, and
a blue-ste el handg

un with six bul lets in it un der a pil lo w on the bed. The State then showed the officer the victim’s handguns, and he confirmed that they were the handguns foun d i n the motel
room. The offi cer confirmed th at they found fou

r Elgin p ocket wa

tches, se veral wr ist watch es, and two gold rings in the motel room. On cross-examination, Officer Law rence t estified that he di d

not process the jewelry f

ound at the scene for

finger prints and did not know if any other officers did so. The officer stated that they also found some clothing, a cell phone and a cell phone c harger.

Andrew Parker, a prisoner at Turney Center Prison, testified that he was serving five yea rs at thirty perce

nt for burglaries and theft. Parker state d that he was in the Crimi nal Justice

Center in Nashville on July 19, 2000, because he had just been arrested for stealing a car. He explained that he met the Defendant at the Criminal Justice Center on July 19, 2000, and stay

ed with him for two to three day s as his cell-mate. Parker testified that the Defendant told him that he had been arrested for murder and then told him what had happened. He explained that the Defe ndant told him “[t]hat they had [gone] to rob someone. And they robbed them. And they killed him and took h is car .” Parker stated that the Defendant told him that the victim was “[a] friend of his grandfathe r’s that he had known while he was growing up.” He said that the Defendant told him that he cut the victim’s grass. Parker

explained that the Defendant said, “I broke that old man’s neck,” and demonstrated breaking the victim ’s neck by ma

king a tw isting mov ement wit

h his two ha

nds goin g in the opposite direction. Parker stated

that the Defendant did not tell him who his accomplice was in the murder. He explained, “[The Defendant] said something about a plastic ba g being put over his head or something like that. And

there wa s mention o f tape, d uct tape . And if

I’m not mistaken, he said he threwhim d own th e stai rs int o a bas ement , or so methi ng l ike that .” Parker testified that the Defendant

also mentioned Jarret Guy wa s with him at the t ime of the murder. He stated that the Defendant

told him that they

selected the victim “[b]ecause they knew him. There was supposed to have been quite a bit of money and some pills, pain medication.” Parker testified that the Defendant told him that, after the

y ki lled the victim, “th ey

went to a motel room and were doing drugs until they got caugh t.” Parke r said that the Defend ant to ld hi m that they got so me mon ey, prescr ipti on dru gs and the car from the victim. He stated tha

t the Def endant de scribed

the car as a new Oldsmobile-10-

Cutlass or a

Chevy Malibu. Parker te stified that during t he three day s he spent

with the D efenda

nt, the Defend

ant did not

show any remorse for what he did. Parker stated that he told police about the Defendant’s confess ion to him ab out a month later, a nd nobody

promised

him any thing for his te st im on y.
Oncross-e

xamin ation, Parker testified that, at the time of his arrest, he was drunk fr om drinking a pint of Johnny

Walker whisky and

had taken some Valium. Parker stated that he told the po lice officers that he was suicidal, so the officers put him in the medical wa rd o f the Crimina l Justice Center. Parker explained that he talked with the Defendant af ter they wok

e up in the ce ll together. Parker stated tha t prosecu tors showed him his statement to police that he made in 2000 regarding the Defendant’s confession “a couple of hours” before he testified. The Defendan t presented Parker wi th a copy of his statement a nd asked him whether that was the document he reviewed, and Parker

responded affirmatively . He stated tha t he hoped

that he c ould avoid

going to prison by telling police a

bout the Defendant’s confession to him while they were cell mates. Parker said t hat h e contac

ted his att orney before talking with polic e about th e Defe ndant’s c onfessio n to find out if he c ould

get a reduced sentence . On re-direct examination, the State asked Parker to read the statemen

t that he p reviousl

y g ave to police in

2000. The

Defend ant objected to Parker reading the statemen t into evidence, but the trial court overruled the objection. Parker r ead the following statemen t: According

to Mr. Parker, [the Defendant] told him, whilein jail, about a crime he had committed . He state d that [the D efenda nt] stated that he and a

friend went over to one of his

grand father [’s] friend [’s] house th at he use d to cut g rass f or when he
was a kid, and

robbed him for money and drug s. He stated, ‘[the Defendant] said that they knocked on the [door] and asked

to use the phone, then tied him up.’ He stated t hat [t he Defendant] had told him that he broke the old man[’s] neck and then demonstrated

it to him. And he stated

that [the Defendant] mentioned the plastic bag to him and went

outside and told his friend that he put the old man in a closet. [The Defend ant] told him that they took the old man[’s] car, which was a new Cutlass. He stated that [the Defendant] told him that while they were in the house the other guy told [the Defendant] to let

the old man go. And [the Defendant] pulled a thirty -eight (.38) caliber on

him. He al so had a blue-steel, thirty -eight (.38) caliber. See tapes f or more details of Mr. Parker’s interview.

Parker testified that the statement was accurate and that he r emember ed the De fendant

telling h im about the murder o f the vic tim.
Danny Morris, Police Identification Supervisor of the Me tropolita n Police D epartme

nt, testified as an expert in fingerprint comparisons. Morris stated that none of the prints lifted in the victim’s house matched the fingerprints of the Defendant or

Jarret Guy, and the pr

int lifted from one of the shotguns was of no value for comparison purposes. On cross-examination, Morris stated that the pocket watches fou

nd in the mote l room shou ld have be en proce ssed for finger prints, in h

is opinion.-11-

Derry Baltimore, a detective with the Homicide Division of the M etropolit a n Police Department, testifie d that he i nvestig ated the

murder o f the vic tim on Ju ly 18, 2000. Detective Baltimore stated that he arrived at the victim’s house in the afternoon and f ound that the crime scene had been sec ured by the patr ol office rs. He said that officers from the I dentification Division were pr oces sing the inside

of the hou se by

taking photogra

phs, lookin

g for la tent print s and “tr

yin g to figure out who else may have been in the house.” Detective Baltimore stated that he examined the victim’s body and found that ther e was a plastic bag

around the victim’s head that was duct taped to his neck, and “he was tied up with phone cord, had a f ew abrasions upon the head and the side.” The detective explained that the medical examiner removed the plastic bag , duct tape and the telephone cord. He stated that, whe n he was n

otified th at offic ers foun

d the stole n white Ol dsmobile at the Super 8 Motel in G oodlettsville, he d rove to that location and found the Defendant, Jarret Guy and Angela Guy

already in custody. The detec

tive testified that he interviewed Angela Guy at the police sta tion, and she gav e a state

ment.
Detective Baltimore testified that he and a nother detective interviewed Andrew Parke r on August 23, 2000, regardi ng the victim’s murder. He state d that he d id not make

any promises t

o Parker regardi ng a pos si ble redu ced sent ence in e

xchange for his inf

ormation. On cross

examination, the detective stated that he agree d to speak to the assistant district attorney on Par ker’s
caseto inform him of Parker’s cooperation. Detective Baltimore testified that many of the victim’s belon gings were found at the home of Jar re t G uy and Angela Guy

and at the Super 8 Motel room registered to Jarret Guy. The dete ctive explained that he did not order any type of trac e evidence examination of anything

take n from the victim’s house. He stated that there was no hair sample, blood sample or latent fingerprint that connected the Defendant to the victim’s home. Detective Baltimore said that he decided not to order any

fingerprints from the victim’s jewelry recovered from the motel r

oom.
Dr. Bruce Phillip Levy , Chief Medical Examiner for the State of Tennessee and Metropolitan Nashville Government, testified in a video deposition as an expert inforensic pathology . Dr. Levy testified that he performed

an autopsy on

the victim , William Gordon Satterfield, and found that the victim had not ingested a

ny a lcohol or other dr ugs. The doctor explained th at, base d upon his examination, the victim died sometime on the afternoon of July 17, 2000. Dr. L evy stated that the victim “died as a result of both manual strangulation and suffocation ,” and the doctor ruled the victim’s death as a homicide. He explained that the source of thesuffocation was a plastic bag that had been duct taped over the victim’s head. The doctor sta ted that the victim had a variety of blunt force injuries on

his head, portions of his chest, abdomen, back, arms and leg s. He explained that the victim’s injuries were caused by the victim being struck by an object or the victim being thrown downand strik

ing the o bject. Dr . Lev

y te stified th at the victimwas “str angled by s omebody

or some number of persons’ hands that were placed ar ound his neck and applied pressure, causing his dea th.” He stated that the victim had severa l b ruises and lacerations on his face and the bac k of his head, which was cons ist ent with the victim struggling with his attackers and possibly being pushed or dragged down a flight of stairs. Dr. Levy explained that the abrasions and bruises on the victim’s
arms were consistent with the victim putting up his arms in a defensiveposition to ward off blows fromhis attackers. The doctor stated that the manual strangulation occurred before the plastic bag-12-

was placed over the victim’s head and duct taped to the victim’s nec k, though he did not

know which act actually

killed the victim in this case.

Oncross-examination, Dr. Levy testified that the victim “was thin and somewhat frail” at the time of his death, though the victim was in good health for an eighty

-two year old man. The doctor stated that the victim had no broken bone s in his body and that the victim’s nec k was not broken. He explained that the time o f the victim’s death would have been between 1:00 a.m. on July 17, 2000, and 1:00 a.m. on July 18, 2000. Dr. L evy stated that he c ould not tell from the victim’s body whether the victim’s attacker was right or left ha nded. Af ter the presenta

tion of this

evidence, the State rested. The Defendant attempted to introduce a

video of a police interview with Brian Bry ant, the
manthat Ang ela Guy

sa id the Def

endant and Jarret Guy

attempted to recruit to participate in the robbery of the victim. The Defendant’s investigator could not locate Brya nt and therefore could not subpoena him to testify at trial. The Defe ndant claimed that the video would show Bry ant contradictingAngela Guy ’s testimony because Brya nt told police thatAngela

Guy called him we ak and not up to the

task of r obbing the victim a

nd said that he wo

uld not be b ack. The

Defend ant also claimed that Brya nt told police that the D efenda nt did not sp eak while

Jarret Gu y w as attemp ting to recrui tBry ant. The trial cou rt denie d the Def

endant’ s reques tto introduce the video of the police interviewwith Brya

nt because it did not fall within any he arsay e xception and the D efendant crossexamined Angela Guy

on this very issue. Thereafter, the Defenda nt introduced the video as an offer of proof.

The De fe ndant then called William Stewart, a detective with the Robbery Division of the Metrop olitan Police Departm ent, to testify. Detective Stewart testified that he investigated the armed robbery of Cla rence M c Dowell, an elderly man, on July 13, 2000. The detective stated that the
sus pect in that robbery wa s Jarret Guy. He e xplained that the robbery occ urred in M cDowell ’ s house, and the robber tied up McDowel l with a phone cord and stuffed a sock in his mouth. Detective Stewart stated that the robber took

some jewelry, some house hold goods and his car. He stated that McDowell picked Jarret Guy out of a photo line-up, so Jarret Guy became the prime suspect for the crime. The detective testified that he interviewed Jarret Guy after he was arrested for the murder and robbery

of the victim in th

is case, and he a

dmitted torobbing McDowell. Detective Stewart ex pl ai ne d t ha t J ar re t G uy c onfes sed to the McDowel l robber

y after g iving a s tatement to detectives about the murder of the victim in this case. The detective stated that Jarret Guy admitted to leavin g McDow ell bound a

nd gag ged but

did not har

m him.

After the three day

trial, a Davidson County jury convicted the Defendant of premeditated first degree murder, felony

murder and robbery , and the trial cou rt merged the two murder convictions into a single offense of first degree murder. The jury sentenced the Defendant to life imprisonmentwith

the possibility of

parole for the first degree murder conviction, and the trial court imposed a ten year sentence for robbery

to be served consecutively to the Defendant’s life sentence. The Def endant now appea

ls.-13- II. Analysis

Onappeal, the Defe

ndant con tends that: (1) the evide

nce was insuffic ient to sup

port his convicti ons; (2) the trial court erred by admitting into evidence crime scene photogr aphs of the victim; (3) the trial court erred by admitting into evidence testimony r egarding pi lls found on the Defend ant at the time of his arrest; (4) the trial court erred by a llowing a State’s w itness to r ead to the jury a summary

of the witness’s pre-trial statement to police; (5) the trial court erred by

denying the Defendant’s request to introduce a prior recorded statement of an unavailable witness to impeac h
a State’s witness; (6) the trial court erred by not clarifying

its jury charg e that the jury cou ld not consider evidence introduced at trial concerning the co-defendant; and (7) the trial cou rt erred by ordering the Defendant’s sente nce for robbery

to be served consecutively to his life sentence.
A. Sufficiency of the Evidence

The Defendant contends that the evidence pre sented at trial is ins u fficien t to suppor

t his convicti ons. When an accused challenges the suf ficiency of the evidence, an appellate court’s standard of re view is whether, after considering the e vidence in the light most favorable to the prosecution, any rational trie r of fact could have found the essential elements of the c rime beyond
a reasona ble doubt. Tenn. R. App. P. 13( e); Jackson v. V irginia
, 443 U.S. 307, 324 (1979); State
v. Smith , 24 S.W.3d 274, 278 (Tenn. 2000). This rule applies to findings of guilt based upon direct evidence, circumst

antial ev idence, or a comb ination o f both direct and circumstantial evidence. State v. Pe

nderg rass , 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). In determining the suff

iciency of the evidence, this Court should not re-weigh or re-eva luate the evidence. State v. Matthews
, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this Courtsubstitute its inferences for those drawn by the trier of fact from theevidence. Stat e v. Buggs
, 995 S.W.2d 102, 105 ( Tenn. 199 9); Liakas v. State
, 286 S.W.2d 856, 859 (Tenn. 1956). Questions concerning

the cre dibility of the witne sses, the weight and value

of the ev

idence, as well a s all factual issues raised by the e vidence are resolved by

the trier of fact. Liakas
, 286 S.W.2d at 85 9

. This Court must a

fford th e State th e strong est leg itimate vie w of the evidence contained in the record, as well as all reasonable inference s which may be dr awn from the evidence. State v. Evans
, 838 S.W.2d 185, 191 (Te nn. 1992). Because a verdict of g uilt against a defendant removes the presumption of innocence and raises a presumption of g uilt, the convicted criminal defendant bears the burden of showing that the evidence wa s legally insuff icient to sustain a guilty ver dict. Id.

The Defendan

t w as convic

ted of the

following

offense s: robbery; fe lony murder; and premeditated first degree murde r. 1. Robbery Robbery is “the intentional or knowing theft of property from the person of another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a) ( 1997). Under Tennessee Code Annotated section 39-11-401(a) (1997), “[a] person is crimina

lly responsible as a party

to an-14-

offense if the offense is committed by the person’s own conduct, by the conduct of another for which the person is criminally responsible, or by both.” A p erson is c

riminally responsi ble for an of

fense committed

by the conduct of a

nother if, “[a]cting with intent to promote or assist the commission of the offense, or to benefit in the proceeds or resul ts of the of

fense, t he person solicits, directs, aids,
or attempts t

o aid anot her per son to comm

it the offense.” Tenn. Code Ann. § 39-11-402(2) (1997).

The evidence introduced at trial overwhelmingly shows that the Def

endant p articipa

ted in the robb ery of the

v ictim. The evidence showed that intruders bound the victim with a telephone cord and duct t

ape, g agge d him by

stuffing paper towels in his

mouth and t

aping h is mouth shu

t with duct tape, placed plastic grocery bags over his head and then sealed the bags with duct tape around his neck. The intruders stole two shotguns, jewelry , prescription

drugs, cash, and the victim’s new white Oldsmobile. Angela Guy testified that she overheard the Defenda nt and her husband, Jarret Gu y, talki ng abou

t “making some mone

y,” and the D efenda

nt “mentioned that h e knew w here to make some money. A friend of his grandfather’s kept larg e sums of money bec ause he didn’t believe inbanks. . . . He mentioned that he was an old man.” Angela Guy testified that the Defendant stated that the victim

lived in the Englewood a

rea near a Kroge

r’s grocery

store. She stated that the Defendant

told her husband that

the victim

had “an yw here fr om twenty

-five to f ifty thousand d

ollars. It was a large sum.”

She said that the Defendant stated that the victim would go gr ocery shopping every Monda

y and “that he

usually stay

ed gone about three hours.” Angela Guy testified

that the Defendant and her husband left the apartment on July 16, 2000, and at about 3:00 or 4:00 p.m., “Jarret [Guy] called and said he was going to go to Krog er’s. . . . That meant that they were going to go br

eak into the house.” She stated that the Defendant and Jarret Guy returned to her home later t

hat day in a new w

hite Oldsmobile

and that t hey ran back and for

thtaking propert y out of the car, including guns, money , pills, shotgun shells and bullets. She explained that the Defendant and Jarret

Guy discusse d which ite

ms they could sel l to make the most money and that they split a large amount of cash between them. McE wen, Sr., testified that the Defendant and Jarret Guy drove to h

is house in a white

Oldsmobile

and trie d to sell him

the victim ’s two shot

guns. Campbell stated tha

t t he Guy

family and the D efenda

nt arrive d at her home in a ne w white Oldsmobile

that she did not recognize. She testified that, while the Defendant and the Guy family spent the night at her house, she found sev eral guns and some jewelry that did not belong to her under her kitchen

sink. She st

ated tha t those ite ms were gone the next day , after the Defendant and the Guy family

left. Police officers found the white O ldsmobile a t the Super

8 Motel in Goodletts ville with Jarret Guy in the dr iv er’s seat. Police then arrested the Def endant in a motel
room where police found two of the victim’s handguns and a folded towel containing the victim’s je we lr y. Andrew Parker, who was the Defe ndant’s roommate for a few day s at the Criminal Justice Center inNashville, testified that the Defendant confessed to him that he had robbed and murdered the victim

. The evid ence established

that the D efenda

nt partic ipated in

the robbery

of the victim, split
some of the proc eeds of t

he robbe ry , and then

tried to sell some of the stolen goods. The Defendant
was arreste d in a mote l room whe re polic e found some of these stol en goods. Accordingly , after viewing this evidence in the light most favorable to the prosecution, we conclude that a rational trier-15-

of fact could hav e found the essent ial eleme nts of rob bery bey ond a rea sonable d

oubt.
2. Felony Murder Felony first degree murder is “[a] killing of another c ommitted in the perp etration of or attempt to perpetrate any

first degree murder, act of terrorism, arson, rape, robbery , burgla ry , theft, kidn appin g, aggravated child abuse , aggravated child neg lect or aircraft piracy .” Tenn Code Ann. § 39-13-202(a)(2) (1997 & Supp. 2002). No culpable mental st ate is required for conviction of felony murder except the inten t to commit the enumerated offenses or acts in subdivision (a)(2)

. Tenn. Code Ann. § 39-13-202(b).

As explained above, the evidence introduc ed at trial overwhelmingly supports the Defendant’s conviction for robbery . The e videnc e shows that the victim was killed by manual strangulation

and suffocation after the robbers bound and gagged the victim using a telephone cord and duct tape, placed plastic grocer y bags over the victim’s head and sealed the bags to the victim’s neck using duct tape. Police found the victim’s body in the basement of his home, cover ed by an old mattress and rubb ish. Dr. Levy

testifie d that the

victim’s bruises a

nd abras i ons indi cated that the victim had been severely beaten and possibly drag ged down some stairs. Andrew Parker testified that the Defendant confessed

to him that he robbed and murdered the victim . The evi dence c learly shows that the victim was k illed while

the Defe ndant and Jarret Gu y r obbed him o f his car, guns, je we lr y, cash and prescription drugs. Accor dingly, after viewing this evide nce in the light most favora ble to the pro secution , we conc lude that a rational trier

of fact could

have found the essential elements of felon y mu rder be yon d a reas onable do

ubt.

3. Premeditated F irst Degree Murder

Premeditated

firs t deg ree m urde r is “ [a] p re meditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1). Premeditation “is an ac t done after the exercise of reflection and judgment. ‘Premeditation’ means that the intent to kill must have been formed prior to the ac t itself. It is not necessary

that the purpose to kill pre-exist in the mind of the accused for any definite period of time.” Tenn. Code Ann. § 39-13-202(d). The element of premeditation is a question of fact to be de te rm in ed by t he ju ry. State v. Suttles , 30 S.W.3d 252, 261 ( Tenn. 200 0); State v. Bland , 958 S.W.2d 651, 660 (Tenn. 199 7). Premeditation “may be e stablished by proof of the circumstances surrounding the killing.” Suttles , 30 S.W.3d at 261. The Tennessee Supreme Court noted that there are several fac

tors which tend to support the existence of premeditation, including the use of a deadly

weapon upon an unarmed victim, the fact that the k illing wa s particu

larly cruel, declarations of an

intent to kill by

the defendant, evidence of procur ement of a weapon, the making of prepar ations be fore the

killing f or the pur pose of c onceali

ng the c rime, and calmne ss immedia tely after the killing. Id. ; see Bland , 958 S.W.2d at 660.

As explained above, the evidence was overwhelming that the Defendant participated in the robbery of the victim. Andrew Parker testified that the Defenda nt confessed to him that he robbed and murdered the victim. Parker explained, “[The Defendant] said something abo ut a plastic bag-16-

being put over h

is h e ad or some

thing lik e that. An

d there w as mention

of tape, duct tape . And if I’m not mistaken, he said he threw him down the stairs into a basement, or something like that.” He stated that the Defendant told him, “I broke tha t old man’s neck.” Parker testified that the Defendant also mentioned Jarret Guy was with him at the time of the murder. He stated that the Defe ndant told him that they selecte d

the victim

“[b]ecau se they

knew him. There w as suppose d to have b een quite
a bit of money

and some p ills, pain medicatio n.” Park er testif ied that th e Defe

ndant told

him that, after they killed the victim, “they went to a motel r

oom and we

re doing drugs u ntil they g ot caught.” Parker said that t

he Defe ndant told

him that the

y st ole some money, presc

ription drugs and the car fromthe victim. Angela Guy testified that the Defendant and Jarret Guy discussed

plans to rob the victim because the victim was elderly and reportedly

had a large amount of cash in his home. She stated that the Defendant told Jarret Guy that the victim’s house was located near a Kroger’s g

rocery store in e ast Nashv

ille and that the victim had a h abit of g oing to th e groc ery store on M ondays. Dr. Levy testified that the victim was killed by manual strang ulation and suffocation. The evidence sh ow ed th at th e D ef en da nt an d J ar re t G uy bound the victim’s hands and ankles with a telephone cord a

nd duct ta pe, stuff ed his mouth with a wad of paper towels, taped his mouth wi

th duct tape, placed a plastic groce ry bag over his head and sealed the ba g around his neck

with duct tape

. This manner of killing the victim shows that it was “an act done after the exercise of reflection and judgment” because strangling a person around the neck and then sealing plastic bags over the person’s head with

duct tape are ac ts certa

in to caus e death. Accordingly , after viewing this evidence inthe light most favorable to the prosecution, we concl ude that a ra tional tri er of fa ct could have found the essentia l element s of prem

editated first deg ree mur der bey ond a rea sonable d

oubt.

B. Crim e Scene P hotographs of Victim

The Defendant next contends t hat the tr ial cour t abused i

ts discre tion by admitting

into evidenc e crime s cene photogra phs of the murder victim. The

Defend ant arg ues:

In th is case, photographs involving close-ups of the murde r victim’s face we r e introduced

over [the Defe

ndan t’s] objec tions . (Ex. 17-A-I). Other photog raphs that
were not as gruesome and i nflamm atory had a lready be en introduced, as had testimony concerning the victim’s death. The photographs that were objec ted to by [the Defenda

nt] were not necessary

to prove any e lement of the State’s case, and
were therefore irrelevant. Given the other evidence that the jury had already

heard, and the lack of probative value of these pa rticular photogr aphs, their introduction by the St at e w as si mp ly a n a tt em pt to in fl am e t he ju ry b y s howing them a close-up of the deceased victim’s face.

The State contends that the photographs were offe red to prove premeditation and felony murder and that the photographs’ probative value was not outweighed by

the potential prejudicial effect on the Defend ant. Moreove

r, the Sta te arg ues that the Defe

ndant’s f ailure to include the photographs on appeal prevents this Court from reviewing the photog raphs at issue.-17-

The determination of

the admissibility of photographs lies within the sound discretion of the trial court. State v. H arris , 839 S.W.2d 54, 73 (Tenn . 1992); State v. Evans , 838 S.W.2d 185, 193 (Tenn. 1992); see Neil P. Cohen, et al., Tennessee Law of Evidence , § 4.01[17][a], at 4-36 (4th ed. 2000). The dec ision of the trial cou rt to admit

a photograph into evidence “will not be overturned
on appeal a

bsent a c lear sho wing of

an abuse of discr eti on.” State v. Vann , 976 S.W.2d 93, 103 (Tenn. 1998); see State v. Cazes , 875 S.W.2d 253, 262-63 (Tenn. 19 94). To be admissible, a photograph

must be relevant to some issue at trial and the danger of unfair prejudice, confusion of the issues, or

misleadin

g the jur y mu st not substa

ntially outweigh its probative value. Tenn. R. Evid. 403; State v. Banks
, 564 S.W.2d 947, 949 (Tenn. 1 978); see Cohen, supra , § 4.0 1[17][d ], at 4-38. The te rm “unfair prejudice” has been de fined as “[a]n undue tendency to suggest decision on an improper basis, commonly, though not necessarily , anemotional one.” Banks
, 564 S.W.2d at 951. This Court has explain ed that: Prejudice becomes unfair whe n t he prima ry purpose o f the evi dence a t issue is to elicit emotions of “bias, sympathy , hatred, contempt, retribution, or horror.” Murder is an absolutely re

prehensible crime. Yet our criminal justice sy stem is designed

to establish a forum for unimpaired reason, n ot emotio nal reaction. Evidence which only appeals to sympathies, conve ys a sense of

horror, or engenders an ins tinct to punish should be excluded.

State v. Collins
, 986 S.W.2d 13, 19-20 (Tenn. Crim. App. 1998) (citations omitted). In deciding whether to admit pho tographs, the tr ial cour t must consi der the q

uestions o f fact that the jur y will have to consider in determ inin g the accused’s guilt, as well as other evide nce that has been introduced

during the course of the trial. State v. Williamson
, 919 S.W.2d 69, 78 (Tenn. Crim. App. 1995). Before any

photograph can be admitted into evidence it must be verified and authenticated by a witness with knowledge of the facts. Banks
, 564S.W.2d at 9 49-50; see Cohen, supra , § 4.01[17][e], at 4-38.

After thoroug hly reviewi ng the r ecord in this case, w e note tha

t, accor ding to th e certif

icate of appel late rec ord filed

by t he David son County

Criminal Co

urt Clerk , the exhibi

ts admitted

into evidence at trial are logged with the case State v. Jarret Alan Guy , No. M2002-02473-CCA-R3-CD, whichis pending in this Court. It is the duty of the Defend ant to pre pare a r ecord w hich conv ey s a fair, accurate and complete acc ount of what transpired in the trial co urt with r esp ect to the issues whichform the basis of his appeal. Tenn. R. App. P. 24(b) ; State v. Bunch , 646 S.W.2d 158, 160 (Tenn. 1983); State v. Gibson , 973 S.W.2d 23 1, 244 (Te nn. Crim. App. 1997 ); State v. Hopper
, 695 S.W.2d 530, 537 ( Tenn. Cri m. App. 198 5). Gene

rally , when the

record is incomplete, or does not contain the proceedings relevant to an issue, this Cou rt is precluded from considering this issue. Gibson , 973 S.W.2d a

t 244; Hopper

, 695 S.W.2d a

t 537; State v. Morton

, 639 S.W.2 d 66 6, 668 (Tenn. Crim. App. 1982). The Defendant failed to ensure that the a ppellate re cord in this case contained collecti ve Exhibit

17, A-I. However , the photographs of the victim at issue in this cas e are filed with the appellate record in the pending case of State v. Jarret Alan Guy , No. M2002- 02473-CCA-R3-CD, and the record is unclear as to whether the Defendant’s counsel knew that the photographs were not filed in the appellate record of this ca se. Further, this Court may take judicial-18-

notice of records on file. See Tenn. R. A pp. P. 13(c ); Giv ens v. S tate , 702 S.W.2d 578, 579-80 (Tenn. Crim. App. 1985). Th erefor e, in the i nterests of judi cial economy, w e elect to review the photographs in collective Exhibit 17, A-I, to determine whether the trial court abused its discretion by a dmitting t hem.

Defendant’s cou nsel ob

je ct ed to th e i nt ro du ct io n o f t he ph ot og ra ph s o f t he vi ct im ’s bo dy, stati ng, “I want to object to the introduction of the n ext set of pho tographs, which are just photographs of the body, unless [the State] can demonstrate h ow those photogr aphs are releva nt to the identity of [the Defendant] being the person who committed the crime. Clearly , [the victim] was kill ed.” Th e tria l cour t over ruled the ob jecti on, st ating:

The picture s are not

pleasan t to loo k at, Mr. Weatherly. I agree with y

ou. And ob vi ou sl y, they’re

a little rou gh, but I think the s tate has the burden of proof to prove their case, pr emeditat ion is an e lement of

one coun t. And as far as the felony

murder, it relates to that, to so me extent, t

oo. And I ’m going

to respe ctfully

overrul e your .

. . objection. And the state can use these under th e rules a

nd under the case law in this state. The probative value outweighs the prejudice, I believe.

The trial cou

rt allowe d the State

to introdu

ce the f ollowing photogr aphs in co llective

Exhibit 17: (A) Photograph of victim’s ankles bound with telephone cord a nd duct tape; (B) Photograph of victim’s body next to a basement wall with his shirt partly pulled up and a plastic g rocery bag over his head; (C) Close-up photograph of victim’s head cove red by a pla stic grocery

bag and duct tape; (D) Close-up photograph

of victim’s head covered by a plastic grocery

bag and duct tapewith a wad of paper towels stuck to it; (E)Photogr aph of vic tim’s uppe

r body with his head covere d by

a plastic grocery bag an d duct tap e over hi s mout h with a wad of paper towels stuck to it; (F) Close-up photograph

of victim’ s head showing br uises and marks on t

h e victim’s ne ck; (G) Photograph of victim’s body showing victim’s ar m behind his back; (H) Photograph of victim’s wrists tied together with a telephone cord; and (I) Photograph of victim’s ankles tied together with telephone cord and duct tape. The Defendant contends that these photog raphs unfairly

prejudiced him because they
were introduced in “an attempt to inflame the jury .” The Defendan t further contends that the photographs “were

not nece ssary

to prove a

ny e leme nt of the State’s case, and were theref ore irrelev ant.” We r

espectf ully disagr ee with th e Defe

ndant’s a ssertions

. After thoroughly

reviewing the photographscontained in Exhibit 17, we conclude that the trial court di d not abu se its discretion by admitting these photog raphs into evidence. First, the photographs were re levant to prove intent and premeditation, elements which may be inferred from the manner and extent of the attack on the victim. The photographs that show the victim’s ankles and wrists bound with telephone co rd andduct tape indicate that the victim was restrained before being killed. The photogra phs that show the victim’s head covered with plastic groce ry bag s and wrapped with duct tape indicate that the killing was premeditated. The photog raph that shows the bruises and marks on the victim’s neck indicates that the victim was also strangled. The photographs that show a wad of paper towels stuck to a strip of duct tape near

the victim’s mouth indicate that the victim was gagged be fore being killed. A police officer who was a t the crime scene when the-19-

photographs were taken explained to the jury what each photograph depicted. The photographs were notparticularly g

ruesome because there was virtually no blood and m ost of the vi ctim’s face was covered by t he plastic bags. All the photo graph s in Exhibit 17 had prob ative va lue that w a s not substantia lly outweighed by

unfair prejudice. Accordingly , we conclude that the trial court did not abuse its discreti on by

admitting

the photog

raphs of the victim

. C. Defenda nt’s Pil

ls

The Defe ndan t next contends that the trial court erred by admitting into evidence testimony regarding pills found on the Defe

ndant at t he time of his arrest. Officer Hutchinson stated that, once he and the ot

her off icers e ntered t he Defe ndant’s motel room, he f ris ked the Defendant before placing him under arrest. The officer explained that he found some red pills in the Defendant’s left front pocket. The Defendant objected to the introduction of the pills into evidence, but the tr ial court overruled the objection and admitted the pills “for whatever purpose,” stating that the pills found on the Defendant related to earlier tes timony abo ut pills brought in from the white Oldsmobile. The Defend ant conte nds:

The [S]tate did no t provide any foundation for the relevancy of that evidence, nor
was that evidence later identified as having a ny connection to the charges for which [the Defendant is] on trial. The State clearly introduc ed that ev idenc e as a wr ongdoing by [the Defenda

nt], in violation of Rule 404 of the Tennessee Rules of Evidence. Further, any alleged relevancy

of that evi dence w as substa ntially outwe ighe d by

the r isk of unfa ir pr ejud ice t o the [Def enda nt].

The State ar

gues tha t the red pill s fo und on the

Defend ant were releva nt and “no t necess arily evidence of wrongdoing.”

InTennessee, admissibility of evide nce is within the sound discretion of the trial judge. State
v. Saylor
, 117 S.W.3d 239, 247 (Tenn. 2003). The determination of whether proffere d evidenc e is relevant in accordance with Tennessee Rule of Evide nce 402 i s left to the sound discretion of the trial judge, as is the d

etermina ti on of wh ether th e probat ive value of evide nce is sub stantiall

y outweighed

by the possibility

of prejudice pursuant to T ennessee Rul e of Evidence 403. State v. Kennedy
, 7 S.W.3d 58, 68 (Tenn. Crim. App. 1999) (citing State v. Forbes
, 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995)); State v. Burlison
, 868 S. W.2d 7 13, 72 0-21 (Ten n. Cri m. App . 1993 ). We will o nl y disturb an evidentiary ruling on appeal when it appea rs that the

trial judg e arbitr

arily exercised his discretion. State v. Baker
, 785 S.W.2d 132, 134 (Tenn. Crim. App. 1989).

Initialquestions of admissibility of evidence ar e governed

by Tennessee Rules of Evidence 401 and 403. T

hese rul es requi

re that the trial c ourt must first d ete rmine whether the proffered evidence is relevant. Pursuant to Rule 401, evidence is deemed relevant if it has “any tendenc y to make the existence of any f act that is of consequence to the d etermin ation of the action more probable than it would be without the evidence.” See Forbes
, 918 S.W.2d at 449. I n other w ords, “evidence is relevant if it helps the trier of fa ct resolve an issue of fact.” Cohen, supra , § 4.01[ 4],-20-

at 4-8. After the trial court finds that the proffered evidence is relevant, it then weighs the probative value of that evidence against the risk that the evidenc e will unfairly pre judice the t rial. State v. James
, 81 S.W.3d 751 , 757 (Te nn. 2002) . If t

he court finds tha t the prob ative va

lue is subs tantially outweighed

by its prejudicial eff

ect, the evidence may

be exclud e d. Tenn. R. Evid. 403. “‘Excluding releva

nt e vidence under this rule is an extraordinary remedy that should be use d sp aringl y and persons seeking to exclude otherwise admissible and releva nt evidence have a significant

burden of persuasion.’” James
, 81 S.W.3d at 757-58 (quot ing White v. Vanderbilt Univ.
, 21 S.W.3d 215, 227 (Tenn. Ct. App. 1999)).

After thoroughly r

eviewing the record, we co nclude that the tri al court did not abu se its discretionby

admitting into evidence the bottle of red pills found on the De fendant . Both An gela Guy and Nora Campbell testified that Jarre t Guy and the D efenda

nt broug ht drugs and pills in

to their homes. Campbell t

estified that she b eli eved the drugs were “Meperg an and either Xanax or Valium.” Angela Guy

testified that the Defendant and Jarret Guy broug

ht “merchandise” from the victim’s house into

her home , includin

g “some shotgun shells, bu llets, pills .” She sta

ted that some of the pills included nitroglyce rine pills, thoug

h she note d that “th ere wa s a bunch of pills.” Neither Campbell nor Angela Guy

described the color of the pills that the Defendant and Jarret Guy were bringing into the homes. We agree with the trial court that the red

pills found

on the De fendant

in the motel room were relevant because they showed that the Defendant was in pos session of

an item,
or items, simil ar to thos e taken f rom the vic

tim’s house . The pro

bativ e value o f th e pills was not substantially outweighe d

by unfair pre

judice because the pills were not identified as illeg al drug s. Ac co rd in gl y, we conclude that the trial court did not abuse its discretion by admitting the red p ills.

D. Andrew P arker’s

Prior Consisten t Statem ent
The Defendant next contends that the trial court erred by allowing A

ndrew Parker to read

to the jury a summary

of his pre -trial sta

tement to p olice. Th e Defe ndant ar gues:
That statemen t was con sistent wit

h the testi

mony he had a

lready given a t t r ial concerning

an alleged “jail house confe ssi on” by [the Defe ndant]. There was no insinuation by

[the Defendant’s] counsel that the witness had recent ly f abrica ted his te st im on y, or any other

reason that the witness’ prior statement sho uld have been admitted i

nto evidenc e. Ther

efore, the trial

court er red by allowing this witne ss to read the prior sta tement.
The State contends that

the Defendant’s counsel “attempted to discredit Mr. Parke r’s credibility and insinuated that Mr. Parker was gi vi ng fa ls e t es ti mo ny. By counse l’s questions, counsel suggested that Mr. Parker fabricated his testimony from a po lice rep ort or fr om other information given him by prosecutors.” The State argues that the trial court properly admitted Parker’s prior

statemen t to police a s a prior

consiste nt stateme

nt.
The Defendant’s counsel cross-examined Parker by asking him whether the prosecutors showed him a copy of a

police report which contained his statement to detectives in August of 2000.-21-

Parker replied that he “ looked ov er the no tes from t he inter view” so he could r

efresh his recollection about what

he told the detectives. The Defendant’s counsel then showed him a c opy of the police report, and Pa rker co nfirm ed tha t it w as the poli ce repo rt tha t the S tate s howed him b efore t estif ying. Parker stated that the copy he

reviewed contained handwritten notes that the detectives made as he gave his statem ent. The Defend ant’s coun sel then asked Parker specific questions about the statement he gave to police, including whether Par ker told detectives that “these men had gone up and knocked on

the door at [the victim’s] house,” that the victim was sitting outside in a chair when the two men ar

rived at the victim ’s house, and that t he victim “was tied to a

chair inside the house” before the Defend ant and Jarret Guy killed the victim. On re-direct examination, the State asked Parker to read t he state ment he pr

eviously gave to police in August of 2000. The Defendant objected to Parker reading the statement into evide

nce, but t he trial c ourt over

ruled the objectio n becau se the Defendant

showed Parker t

he state ment on cr

oss-examin

ation and questione d him about it. The State then introduced the statement into evidence.

Ge ne ra ll y, it is impermissible to corroborate a witness’ testimony by evidenc e of the w

itness making prior consistent statements, absent an impeaching attack on that testimony. State v. Martin , 964 S.W.2d 564, 5 67 (Tenn . 1998); Stat e v. Ho dge , 989 S.W.2d 717, 725 (Ten n. Crim. App. 1998); State v. Meeks , 867 S.W.2d 361, 374 (Tenn. Crim. App. 1993); see Stat e v. Bra ggs , 604 S.W.2d 883, 885 (Tenn . Crim. App. 1980). However, “‘prior consistent statements may be admissible . . . t o rehabil itate a witness when insinuations of re cent fa brication have be en made, or when d elibera te falsehood has been implied.’” Hodge , 989 S.W.2d at 725 (quoting State v. Benton
, 759 S.W.2d 427, 433 (Tenn. Crim. App. 1988)). Before prior consistent statements may be admissible , “the wit ness’ testimony must have

been ass ailed or

attacke d to the exte

nt that the

witness’ test imony needs rehabilitating.” Id. (citi ng Benton
, 759 S.W.2d at 4 34)). Prior consistent statements also may be admissible

when a witness is impeached through the introduction of a prior inconsistent statement that sugge sts that the

witness ’ testimon y was either fabricated or based upon faulty recollection. Meeks
, 867 S.W.2d at 374. Moreover, “the impeaching attack which allows for corroboration may
occur during c ross-exa mination of

the witne ss . . . . Und

er su ch c ircumstances, the [witness’] statement made before the inconsistent statement but which was consistent with his tr ia l t es ti mo ny” is admissible to rehabilitate the witness. Id. Finally, prior c onsistent statements may be admiss ible when a witness’ prior statement is used out of context to cross-examine the witness. St at e v . B oyd
, 797 S.W.2d 589, 593-94 (Tenn. 1990).

Inthe case

under submission, the

Defend ant’ s co unsel cross-examined Parker about the statement he gave to police in August of 2000 and ha nded Parker a c opy

of the pol i ce report that summarized

the detectives’ interview with Parker. The Defendant’s counsel a sked Park er spec ific questions regar

ding the police r eport, including

whether Parker t old police that the D efenda

nt told him “that these men had gone up and knocked on the door at [the victim’s] house” and that the Defendant

and the ot

her man t ied the vi ctim to a chair insi de the h ouse. Parker did not mention either of these facts on direct examination. Through this line of q uestioning, the Defendant’s counsel insinuated

that Parker’s testimony about wha t the Defendant told him in the jail cell came from the police report and not from his memory

. Parker’ s prior c onsistent s tatement given to police in August of 2000 was a

dmissible because the Defe ndant’s c ounsel ins inuated t hat Parke r rece ntly fabricated-22-

his testimony by

reading the police report

containing his statement. Parker’s testimony was assailed
or attacked by the Defe

ndant’s counsel to the point that it needed to be rehabilitated. Moreover, the Defendant’s counsel o

pened the door for the polic e repor

t to come in because he questioned Parker about reading the police report befor e trial, showed him the police report during cross-examination and asked Parker about specific details from the report. Accordingly, we conclude that the trialcourt did notabuse its discretion by admitting the police report

containing the summary

of Parker’s prior consiste nt stateme

nt.

E. Statem ent of Unava ilable Witne ss

The Defendant next contends that the trial court erred by

denying his request to introduce a pri orrec orded statement of Brian Bry ant, an unavailable witness, that would have impeached the testimony of Ange la

Guy. Be cause the trial court excluded this evidence, the Defendant argues that he was denied his constitutional right to present a complete and competent de fense. The State argues that the prior recorded statement of the unavailable witness was not admissible be cau se the statement did not qualify for any

hearsay exceptions under Tennessee Rule of Evidence 804.

The Defendant attempted to introduce a video of a police intervie w with Br ya nt, the man that Angela Guy

said the Defend

ant and Jar

ret Guy attempte d to recr

uit to part icipate i n the robbery

of the victim. The Defendant’s investigator could not locate Bry

ant and therefore could not subpoena him to testify at trial. The De fendant claimed t h at the video would show Bry ant contradicting Angela Guy’s testimony

because Bry

ant told police th at Ange la Guy

called h im weak a nd not up to the task of robbing the victim and said that he would not be back. The De fendant also claimed that Brya nttold police that the Def endant di d not spea

k while Jar

ret Guy was atte mpting to recrui t Bry ant. The trial court denied the Defendant’s request to introduce the video of the police interview with Brya nt because it did not

fall within any exception to the rules of e vidence and the Defendant cross-examined Angela Guy on this very issue.

Tennessee Rule of Ev

idence 8 04 is an exc eption al lowing a dmission of

otherwis e inadmissib le hearsay

that applies only if the dec larant of the hearsay

statement

is unavailable at the time of trial. Tennessee Rule of Evidence 804(a) (5) states that a dec lar ant will be deemed unavaila ble if the declar ant “is absent from the hearing and the propone nt of a statement

has been unable t o procure th e declarant’s attendance by process.” Once the declara nt has been deemed unavaila ble under Tennessee Rule of Evidence 804 (a) , the next step is to determine whether the statement fal ls in to one of t he f

iv e he ars ay ex cep ti ons in Ten nes see Ru le o f Ev id enc e 80 4(b ). In order for the declarant’s statement to be admissible, the statement must be either fo rm er te st im on y, a dying de clarat ion , a declaration against interest, a de claration of pedigree or a statement offered agains ta party

that has w

rongfu lly p rocure d the unav ailability of the declarant as a witness. Tenn. R. Evid. 804(b)(1), (2), (3), (4) & (6).1 We note th at t he Defe ndant

fai led t o inc lude the video tape of t he Brya nt i nter

view in t he appel lat e recor d.
-23- I n the case

under submission, the

Defend ant satisf ied Tenn essee Ru

le of Evid ence 804(a ) because Brya nt was absent from

the trial and the Defendant was unable to procur e his attendance by process

. However, the Defendant did not satisfy Tennessee

Rule of Evidence 804(b) because Br yant did not make h

is state ment while dying or injured, nor did he speak against his own pecuniary or proprietary

interest by making the sta

tement. See Tenn. R. Evid. 804(b)(2), (3). The Defendant claims that the video tape showed Bry ant telling police what

he knew about the victim’s murder. 1 Moreover, the statement was not given a t a hear ing, and there w as no opportunity for eithe r party to develop or cross-examine his statement. Tenn. R. Evid. 804(b)(1). Accordingly , the statement was notformer testimony under Tennessee Rule of Evidence 804(b)(1) a nd thus does not fall within the ambit of Tenness ee Rule o f Evidenc e 804. Als o, we note that the D efenda

nt’s coun sel vigorously cross-examined Angela Guy about the statemen ts she alle gedly

made abo

ut Bry ant. Therefore, we conclude that the trial court did not abuse its discre tion by excluding the video tape of Brya nt’s st at em en t t o p ol ic e b ec au se it wa s i na dm is si bl e h ea rs ay.
F. Jury I nstructi ons

The Defendant next argues that the trial court erred by

notclarifying

its jury charg e that the jury could not consider evidence introduced at trial concerning the co-defe ndant, Jarret Guy. I

n the original three count indict ment, the Defe

ndant and Jarret Gu y w ere nam ed toge

ther as d efenda nts because the State contemplated a joint trial. However, the trial court ordere d that the defendants be severed because it felt tha t a sever ance wo uld “bett er serv e to promo te justic e and fair ness in this case.” In the tria

l court’s charge to the jury , the trial court stated:

The indictmen

t in this case also charges the de fendant, JARRET ALAN GUY, with the same offense as to each respective Count listed above; however, a severance has been granted as to this defendant, and y ou are to only conside

r the law and the evidence as it pertains to the defendant, JAC OB EDWARD CAMPBEL L, in t his trial.

The Defendant made the following objection to this instruction:

Your Honor, my o

bjection is that the

way that is phr

ased, it c ould be mis leading to the Jury as to wha

t they consid er or ca

n consi der as th e eviden

ce in this c ase. I

t, ba si ca ll y, tells them they can’t c onsider any e vidence about Jarret Guy . But that’s extremely important to the issue of identity, as we’ve presented

it. I’d l ike to re quest the Court to recall the Jury and give them an a

dditional i

nstruction that wou

ld state that the Jury can consider the evidence introduced re ga rding Jarret Guy for the purpose of determiningthe identity of the person who committed this offense or the-24-

role of the person in the offense.

The tr ial co urt ov errul ed the objec tion , stat ing:

Idon’t thin

k it’s nec essary . I thi

nk they can con sider an

yth ing that rel ates to the defenda nt, Jarret Gu

y, a nd all of the other i

nstructions in th is . . . for ty -five paged indictmen t. I think what I ’m say

ing to the Jury is that they will need only to decide for the purpose of this trial the law and evidence relating to the def endant, C ampbell, in their ve

rdict.

Ge ne ra ll y, “a defendant

has a cons titutional right to a correct and complete charg e of the law.” State v. Teel
, 79 3 S.W.2d 236, 249 (Tenn. 1990). The trial court has a duty “to give a complete charge of the law applica ble to the facts of the case.” State v. Harbison
, 704 S.W.2d 314, 319 (Tenn. 1986). Furthermore, the trial court must describe and de fine all of the elements of each offense. State v. Cravens
, 764 S.W.2d 754, 756 (Tenn. 1989). When jury instructi ons are f

ull, fair, and accurate statements of the law, a trial cour t is not required to provide special instructions. State
v. Mann
, 959 S.W .2d 503, 521 (Tenn. 1 997); State v. Kelley
, 683 S.W.2d 1, 6 (Tenn. Crim. App. 1984); State v. Chestnut

, 643 S.W.2d 343, 352 (Tenn. Crim. App. 1982). It is not error for a trial court to de ny a request for special instructions when the court’s instructions on a matter are proper. State v. Vann

, 976 S.W.2d 93, 114 (Tenn. 1998).

After reviewing the jury

instruction at issue in this case, we conclude that the trial court did noterr by

deny ing the D efenda

nt’s req uest f or a spe cial instruction because the trial court’s instruction regar

ding the indictmen

t and Jarre

t Guy was cor rect. The trial court

instructed the jury that, even though co-defendant Jarret Guy was listed in the indictment, “you are to only consider the law and the evidence as it pertains to the defendant, JACOB EDWARD CAMPBEL L, in this trial.” This instruction clearly told the jury that the Defe ndant, not Jarret Guy, was on trial in this case a nd that, theref

ore, it should only

consider the law a nd the evi dence a s it

pertaine d to th e Def

enda nt. We conclude that this instruction needed no clarification and that the trial court properly denied the Defendant’s request for a spec ial instruction.

G. Sente ncing

The D efen

dant next contends that the trial court erred by ordering the sentence for r obbery to be served

consecu tively to the Defendant’s life sentence for murde r. At th e sent encin g hearin g, the State introduced the Defend ant’s pr e-sente nce rep ort into ev

idence. After he aring a

rgumen ts fromthe State and the Defendant, the trial court applied the following enhancement fa ctors under Tennessee Code Annotated section 40-35-114 (2003): (2)the Defendant had a previous history of criminal convicti ons or cr iminal behavior in a

ddition tothose necessary to establi sh the appropriate range; (5) th e vict im of t he offe nse was parti cularl y vulnerab le beca use of age or physical or menta

l-25-

di sa bi li ty; (6) the Defendant treated or allowed a victim to be treated with exceptional cruelty during the commission of the offense; and (14) the fel ony was committed while the Defendant was on probation. The trial court stated that it did not find any mitig ating factors “that would, in an y wa y, reduce the enhanced factors,” and it imposed the m aximum se ntence of ten y ears for the robbery conviction. The trial court also foun d that the ten yea r sentence should run consecutive to the Defendant’s life sent

ence under Ten

nessee C o de Annotate d section 40-35-11 5(b) (20 03) beca use “[the Defendant’s] record of criminal activity is, obviously, extensive,” and the crime wa s “a particularly br

utal murder of a defenseless, older g entleman, living in his own home.”

When a defendant challenges the leng th and manner

of servi ce of a s entence , it is the du ty of this court to conduct a de novo review on the record with a presumption that “the determinations made by t he court from whic

h the appe al is taken are correct.” Te nn. Code Ann. § 40-35-401(d ) (2003). This presumption is “‘conditioned upon the affirmative showing in the record that the trial court considered the sentencingprinciples and all relevant facts and circumstanc es.’” State v. Ross
, 49 S.W.3d 833, 847 (Tenn. 2001) (quot ing State v. Pettus
, 986 S.W.2d 540, 543 (Tenn. 1999)); State
v. Ashby
, 823 S.W.2d 16 6, 169 (Te nn. 1991) . The pre sumption do es n ot apply to the legal conclusions reached

by the tri al cou rt in s enten cing a defendant or to the determinations made by the trial court which are predicated upon uncontrove rted facts. State v. Dean
, 76 S.W.3d 352, 37 7 (Tenn. Crim. App. 2001 ); State v. Butler
, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith , 891 S.W. 2d 922, 929 (Tenn. Crim. App. 1994). In conducting a de novo review of a sentence, we must

consider: (a) any evidenc e received at the trial and/or sentencing hearing; (b) the pre-sentence report; ( c) the pr inciples o f sentencing; (d) the arg uments of

counsel r

elative t o sentenc in g alterna

tives; (e ) the nat

ure and c haract eristics of the of

fense; ( f) any

mitigati n g o r enhancement

factors; (g) any

statements made by

the defendant on his or

her own behalf; and (h) the defendant’s potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. § 400-35- 210 (2003 ); State v. Taylor
, 63 S.W.3d 400, 411 (Ten n. Crim. App. 2001). The party challenging a sentence imposed by

the trial court has the burden of establishing that the sentenc e is erroneous. Tenn. Cod

e Ann. § 40 -35-401 (2003), Se ntencing Commission Cm

ts.

Tenness ee Code A

nnotated section 4 0-35-103 (1) (200 3) states that:

Sentences involving

confine ment shoul d be base d on the fo llowing c onsidera tions: (A) Confinement is necessary to protect society by

restraining a defendant who has a long h istory of criminal conduc

t; (B) Confineme

nt is nece ssary

to avoid depreciating the seriousness of the offe nse or confinement

is partic ularly suited to provide

an effe ctive deterrence to othe rs likely to commit similar offenses; or (C) Me as ur es le ss re st ri ct iv e t ha n c on fi ne me nt ha ve fr eq ue nt ly o r recently been applied unsuccessfully

to the defendant . . . .

Ad di ti on al ly, “[t]he potential or lack of potential for

the rehabilitation or treatment of the defendant2 W e note t hat t he Defendant

does not cont est on appealany of the ot her enhanc ement f

actors that

the t rial

cou rt app lied to th e D efend ant.
-26- should be considered in determining the senten ce a lternative or length of a term to be imposed.” Tenn. Code Ann. § 40-35-103(5). The trial court may consider enhancement and mitigating factors when determining a defendant’s sen tence. See Tenn. Code Ann. §§ 40-35-113, -114 (2003). Moreover, if a defendant is convicted of more than one criminal offense, the trial court may order the sentences to run either consecutively or concurrently . Tenn. Code Ann. § 40-35-115(a). The trial court may order

the sentences to run consecutively if the court finds by a

prep onderan ce of the evidence that certain criteria are met. See Tenn. Code Ann. § 40-35-115(b)(1)-(7). If the court finds that the criteria in Tennessee Code Annotated section 40-35- 115(b) are not met, sentences shall be ordered to run concurrently . Tenn. Code Ann. § 40-35-115(d).

Inthe case

under submission, the Defendant argues that the trial court erred by applying the enhancement

factor that the D efenda

nt treate d or allow ed a vict im to be tre ated wit

h exception al cruelty during the commission of the offense because “ it was the alleged acts of cruelty

that caused the victim’s death.” 2 Tenn. Code Ann. § 40-35-114(6). We disagree w ith the Defendant’s assertion. The evidence showed that the Defenda ntand his accomplice bound the victim’s hands and ankles with a telephone cord and

duct tape , stuffe d his mouth w ith a wad o f paper

towels, taped his

mouth with duct tape, placed a plastic groce ry bag over his head a

nd seale d the bag

around h is neck with duct tape , causing

the victim ’s death

. Dr. L evy testifie d that the victim had a variety of bluntforce injuries on his head, po rtions of his chest, abdomen, back, arms and legs. He explained that the victim’s injuries w ere ca

used by the victim

being st ruck by an obje ct o r the victim being thrown down and striking the object. Dr. L evy also state d that the

victim had

been man

ually str angled , whichcontribu

ted to his d

eath. Th is eviden ce shows that the victim was t

reated with “exceptional
cr ue lt y” during the commission of the robbery . We conclude that the trial cou r t did not err by apply ing this e nhance ment factor and th e other e nhance ment factors to the

Defend ant.

The Defendant also argues that the trial c ourt erred by ordering that the Defendant’s robbery sentence run conse cutively to his life sentence because “there was no ev idence t hat [the De fendant ’s] record of criminal activity wa s extensive.” We disagree with the Defendant’s asse rtion because

his pre-sentence r epor t shows that his record of criminal activity is extensive. The Defendant was convicted of the follo wing of

fenses : pos sessi on of d rugs in May of 2000; dr

iving wh ile his licens e was suspended in May

of 2000; possession of narc otics equ ipment in April of 200 0; sel ling d rugs inAugust of 1998; assault in May of 1998; disorder ly conduct in May

of 1998; assault in November of 1996; driving under the influence of an intoxicant in May of 1996; ag grava

ted assa ult in Aug

ust 1995; assault in May 1995; weapons offense in June of 1995; selling drugs in March of 1995; and possession of narcotics equipment in March of 1995. Ther efo re, the Defendant clearly satisfied Tennessee Code Annotated section 40-35-115(b )( 2), and, accordingly, we conclude that the trial court di d not e rr by orde

ring that the ten y

ear robbery

sentence be served consecutively to the Defendant’s life sentence.-27- III. Conclusion

Inaccordance with the foreg oing authorities an d r easoning , we AFFI RM the trial court’s judgmen ts.

___________________________________ ROBERT W. WEDEMEYER, JUDGE