### IN THE CO URT OF CR IMINAL APPEALS OF T ENN ESSEE AT JACKSON Mar ch 3, 2 00 9 S es si on

STATE OF TENNESS EE v . JEFFREY D. ALLEN

Direc t Appeal from the Circ uit Court for Croc kett County

No. 3704 Clayburn Pe eples, Judge

No. W2008-01348-C CA-R 3-CD - F iled Augu st 17, 2009

The defe ndant, J effre y D. Allen, was convicted by a Crockett County jury of first deg ree felony murder, criminally neg lige nt homicide, fac ilitation of attempted first deg ree murder, and attempted
espec ially ag g ravated robber y

. On appeal
, h e arg

ues that the sequester ed jury was improperly
separ ated and that the trial court err ed by not suppressing his statement t o police, ruling a witness unavailable
, admitting prior bad act evidenc e, and allowing improper opinion evidenc e. Following

our revie w, we aff

irm the judgme nts of the trial court but rema nd for entry of a corr ecte d judgme nt form to re flec t that the defe ndant re ceive d a life se ntence for his first deg ree murder c onviction.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed and Rem anded f

or Entry of Corre cte d Jud gm ent

A L A N E. G L E N N , J
., delivere d the opinion of the court, in which J O H N E V E R E T T W I L L I A M S , J
., joined. C A M I L L E R. M C M U L L E N , J
., filed a dissenting opinion.

Michae l A. Carter , Milan, Tennesse e, for the appe llant, J eff

rey D. Allen.

Ro b e r t E

. Co oper, J r., Attorney Gene ral and Reporter ; David H. Findley
, Assistant Attorney Gene r a l; Gar ry G. Br own, District Attor n ey General; and Edwar d L

. Har dister, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP INION

F ACTS

Acc ording to the State’s proof at trial, on J anuar y 22, 2003, the defe ndant and three others, Chad Br icco, Eug ene Spivey
, and Quantel Taylor, went to the Crockett County home of fifty -six

1

I t i s u n c l e a r f

r o m t h e r e c o r d w h e t h e r t h e c o r r e c t s p e l l i n g i s “ Q u a n t e l ” o r “ Q u e n t e l l

. ” 1y ear -old L eo n ard Nee ly and his fifty -five- y ear -old brother, L ewis, with the intent to rob and kill 2 them. The victims we re known to sell liquor from their home a nd rumored to ke ep lar g e amounts of cash on hand. The defe ndant and Spivey
, who wer e arme d with a .40 caliber pistol, g ained entry to the home under the prete nse of wanting to buy some liquor, while Taylor and Br icco wa i ted outside with a shotgun. Once inside, either the defe ndant or Spivey beg an firing the pistol, shooting L eonar d multipl e times and L ewis twice befor e fl ee i n g the scene with their companions in the defe ndant’s g irlfriend’ s vehicle. L ater that night, L eonar d Nee ly was found de ad as a

result of his wounds inside the residenc e. L ewis survived the shooting but was unable to provide any assistance
to investigators due in larg e part to a series of strokes and seizures that predated the shooting, which made it difficult for

him to communicate.

The defenda

nt , who was almost immediately develope d as a “per son of i ntere st” based on information supplied by t h e v i ct i m s’ neig hbors, was initially interviewe d by police on Marc h 23, 2003. I n that interview, the defe ndant denied any involvement in the crimes and claimed that he had been baby sitti ng his g irlfriend’ s children in Ripley on the night of the incident. Approxim ately two
y ear s later, investigators received a tip that the murder wea pon belong ed to Ripley Police Offic er Debbie Kirkpatri ck
, wh o was Chad Br icco’ s mother. When ballistics testing confirme d the information, Bricco ga

ve a statement admit ting his involvement in the crimes and i mplicating the defe ndant, Spivey , and Ta y lor.

On Marc h 18, 2005, the defe ndant was booked into the Crockett County J ail on a probation violation war

rant. One to two day s later, Br icco, Spivey
, and Taylor wer e eac h char g ed by war rant with first deg ree murder, attempted first deg ree murder, and espec ially ag g rava ted robber

y

. The defe n d an t t h en gav e a second statement in which he continued to deny any involvement in the crimes. I n the second statement, howeve r, the defe ndant added the new information that on the night of the murder, S p i v ey and Br icco had borrowe d his g irlfriend’ s vehicle for approximately forty minutes. He also said that the next day they offe red to sell him a .40 caliber pistol. The defe ndant explained that his bloody fing erpr ints mi g ht have g otten on the wea pon beca use he had touched it while his hand wa s bleeding from a r ece nt cut.

On April 5, 2005, the C ro ck et t C ounty Gra nd J ury returne d an indictment ag ainst the defendant in connec tion with the instant case , char g ing him with one count of first deg ree preme ditated murder, one count of felony murder, one count of attempted first deg ree murder, and

one count of espec ially ag g ravated robber y

. On May 11, 2005, while still in jail and befor e a lawy er had been appointed to repr esent him, the defe ndant initiated a third statement in which he admitted that he went to the victims’ residenc e with the intent to rob them. He denied, howeve r, that he had planned to kill the victims and claimed that Spivey , not he, was the shooter.

On J uly 14, 2006, the defe ndant filed a motion to suppress his May 11 statement on the
g rounds that it was obtained in violation of his Four th Amendment ri gh t t o be fre e from

unrea sonable sear ch and seizure and his Six th Amendment rig ht to the assistance of counsel. At the

W e n o t e t h a t t h i s v i c t i m ’ s n a m e i s s p e l l e d “ L o u i s ” t h r o u g h o u t t h e t r i a l t r a n s c r i p t

. 2

-2-Aug ust 25, 2006, hear ing on the m otion, Chief D ep u t y J ef f Sill s of t he C rocke tt County Sheriff’ s Depa rtment testified that on Marc h 18, 2005, the defe ndant was arr ested from the Dy er County J ail

on a “cha rg e of violation of probation out of [C rocke tt County ] Circuit Court” and booked into the Crockett County J ail, wher e he was held on a $10,000 bond. He said that the first deg ree murder and
espec ially ag g ravated robber y char g es wer e not added until April 11, 2005, afte r the defe ndant had been indicted in circ uit court for those offe nses. He knew the char g es wer e not added until that date beca use he was the one who told the jailers to add them to the defe ndant’s curr ent booking afte r the defe ndant had been serve d with a capia s at the jail. I n addition, he had the defe ndant’s “NCI C sheet” showing that the only char g e enter ed on the day the defe ndant was booked into t h e jail was the probation violation char g e.

Chief Deputy Sill s further testified that the defe ndant’s three companions we re c harg ed by

war rant and t ak en i n t o cu stody one to two day s later. He acknow ledg ed that they eac h g ave statements implicating the defe ndant in the crimes and that the defe ndant was a suspect in those crimes at the t ime he was booked on the probation violation. He said, howeve r, t hat although t he defe ndant was “being investigated for his involvement in the murder char g e,

. . . [h] e was being held

on the [probation] violation

. . . up until the time he was indicted in April.” He testified that it was his understanding that the defe ndant was place d in solitary confine ment at the jail at his own reque st due to problems he w as experienc ing w ith other inmates.

The transcr ipt of the May 11 interview, which was admitted as evidenc e at the hear ing, beg an with the defe ndant twice aff irming that he had sent word that he wanted to talk to the sheriff about the case

. Chief Deputy Sill s rea d the defe ndant his rig hts, and the defe ndant said that he understood his rig hts and wished to make a statement. Chief Deputy Sill s then asked that the defe ndant sign and initial the waiver of

rig hts form. At that point, the following e x chang e tra nspired:

Q. SHERI FF [TR OY] KL YCE: Th is is Sh e r if f K ly c e ta lk in g n o w

. Je f

f r e y , h a ve y ou been a

ppointed a lawy er to re prese nt y ou in this case?

A. No, sir.

Q. You don’t have an attorne y ?

A. (No ve rbal re sponse.)

Q. So y ou haven’ t talked to an attorne y about this case?

A. No, sir.

Q. (B y

J eff Sill s) To clea

r up matter s , y o u d i d go t o co u rt

. Yo u wa s [ s i c] indicted on this char g e. You have been taken in front of the Circuit Court J udg e and

arr aig ned on the c harg e of f irst deg ree murder. Rig ht?

-3-A. Yes, sir.

Q. And during court proce eding s, the J udg e told y ou that he was g onna [si c] g et
y ou an attorne y

appointed to y ou. Correc t?

A. He said i n about two or three day s he was g onna [si c] send somebody (unintelligible) Public Def ender wha t I know and nobody hadn’t [si c] g ot in touch with me. (Unintellig ible.)

Q. (B y

Sheriff K ly ce) You have n’t talked to any body y et?

A. Nobody

.
Q. (B y

J eff Sill s) And y ou don’t want a n attorney prese nt now?

A. I ’m just gonna

[si c] speak the truth about what happene d about that murder

scene

.
Q. Okay

.

After the defe ndant finished his acc ount of the crimes, he explained why he decide d to make the statement:

‘Cause my mother -- me and my mother was talking about that and then there

was something that y ou told me back there

. I don’t reme mber the exact words. You said, “You’ ve g ot a B ible. You nee d to rea d that.” I ’ve done rea d that whole B ible and a whole lot of things -- y ou know what I ’m say ing, -- that came to me. L ike my

m o t h er told me, she said, “B aby
, g o on and talk to Troy .” You know wh at I ’m
say ing? She said, “Te ll Troy and them exactly what happene d. Don’t lie. Don’t tell them no lie.” She told me to tell y ou that today at visitation.

At the hear ing, the prosec utor informed the court that his rec ords ref lected that the defe ndant was indicted on A

pril 5, 2005, and arraig ned on April 11, 2005. After noting that the de fenda

nt’s initial counsel was not appo i n t ed until J une 13, 2005, approximately two months afte r the defe ndant’s arraig nment on the m urder char g es, t he trial court observe d that the delay was c aused by the difficulty i n finding a lawy er in the are a qualified to repr esent a defe ndant in a first deg ree murder case

. At the conclusion of the hear ing, the court denied the motion to suppress, finding no const i t u t i o n al v iolations in the defe ndant’s voluntary statement. The trial court’s ruling states in pertinent pa

rt:

I n this case I t h i n k y ou have to start the time that y ou’re talking about on April 11th, the date that he was arr ai gn ed

. I s a m o nth a long time in a case this serious for a lawy er not to have contac ted him? I t absolutely is a long time

. T he

-4-question is, does h e h av e a const itutional rig ht to have any voluntary statement he

makes thi rty d ay s l at er ex cluded and

. . . g rante d the i nhere ntly coer cive nature of confine ment, I don’t see any thing bey ond that in that statement or in the testimony

. I don’t think the Sheriff’ s Offic e could have done a better job of making sure that he was voluntarily

doing w hat he wa s doing. . . . .

At this point, absent some authority that has not been shown me, I don’t think the Constit ution protec ts that. As lamentable and reg rettable as it is, I don’t think the Constit ution protects him from doing that.

On May 7, 2007, the defe ndant filed a motion in limine to exclude the statement on the basis that it was the product of coer cion, in viola t i o n o f h i s Fifth Amendment rig hts. Specifica lly
, he alleg ed that the two-month period he spent in solitary confine ment at the jail without acc ess to a lawy er, combined with the persua sive statements made by law enfor ceme nt personne l, rende red his
statement involuntary and unknowing despite the prese nce of Miranda war nings. At the J une 4, 2007, hear ing on that motion, the defe ndant testified that he was held in solitary confine ment during the per iod betwee n his Marc h 18, 2005, arr est and his May 11, 2005 statement. During that time, in which he never saw a lawy er, the sheriff and C hief Deputy Sill s made comments about how he should talk be cause his thre e companions wer e g oing to “ pin” the crimes on him. I n addition, one of them told him that “they wer e g onna fry [hi m] ” and Sheriff Kly ce told him that he neede d to be

rea ding his B ible.

On cross-e x amination, the defe ndant acknow ledg ed that he had an extensive rec ord of felony convictions and had serve d nine y ear s for a 1995 ag g ravated robbery conviction. He said that the sheriff and the de puty

told him t hat he should le t the m know if he e ver w anted to talk to them and that afte r thinking about it for a while, he g ave the statement. On redire ct, the defe ndant testified that he was place d in solitary confine ment for fig hting with another inmate. He denied that he reque sted to be put in solit ary

confine ment.

Chief Deputy Sill s testified that he never threa tened the defe ndant and was not responsible for his having been in solitary conf i n em en t ; his understanding was that the solitary confine ment resulted from a conver sation the defe ndant had with the sheriff

. He denied h e ev er m ad e any comment about the defe ndant’s “being fried” and said that he never approa ched the defe ndant about
g ivin g a s t atement. Howeve r, he and the defe ndant talked at differ ent times, usually due to the defe ndant’s str i k i n g u p a conver sation with him. He rec alled that the defe ndant told him that his mother said that he “nee ded to g et rig ht a bout thing s” and to “ g et into his Bible.” He testified that he thought the sheriff g ave the defe ndant acc ess to a Bible and that “ther e was a statement made that he [the defe ndant] needed to re ad the B ible.” S ills testified t hat he rea d the Bible himself and did
not see a ny thing wr ong with the statement.

At the conclusion of the hear ing, the trial court denied the moti o n , fi n d ing that any

conver sations the deputy or sheriff may have had reg arding th e fa cts of the crimes afte r the

-5-defe ndant’s incar cer ation wer e inappropria te, but their con v e r s a ti o n s d id n o t v it ia

te the voluntariness of the de fenda

nt’s statement.

The defe ndant was tried alone befor e a C ro ck ett County jury from April 2-4, 2008. I n addition to his statement of admission, the S tate presented evidence to show, among other thing s: that the defe ndant’s three companions had g iven statements implicating the defe ndant in the crimes; that the defe ndant had told his g irlfriend of his plan to rob the victims; that the d efe ndant and his companions had borrowe d the g ir l fr i en d ’s car on the day of the robber y and that the defe ndant’s blood was found in the g irlfriend’ s car

.

At the conclusion of the trial, the jury convicted the defe ndant of first deg ree felony murder, criminally neg lige nt homicide, fac ilitation o f a tt e mp te d f ir s t d e g r e e murder, and attempted espec ially
ag g rava ted robber

y

. The jury sentenc ed the defe ndant to life for the first deg ree murder conviction. After a sentenc ing hear ing, the trial co u rt s en t en ced the defe ndant as a Rang e I I offe nder to

concur re n t t er ms of twenty y ear s for the fac ilitation of attempted first deg ree murder conviction, twenty y ear s for the attem p t ed es p ecia lly ag g ravated robber y conviction, and four y ear s for the criminally neg lige nt homicide conviction, and order ed that the sentenc es be serve d consec utively to the life sente nce f

or first deg ree murder.

I. Denial of

Motions to Sup press and/or Exclu de Statem ent

The defe ndant first contends that the trial court err ed by not suppressing his May 11, 2005,
statement to police, arg

uing t h at the statement was obtained in violation of his Four th, Fifth, and Six th Amendment rig hts. He cites Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199 (1964), to arg ue that the trial court’s failure to timely appoint counsel violated his Six th A mendment rig ht
to counsel. Citi ng , inter alia
, State v. Huddleston, 924 S.W .2d 666 (Tenn. 1996), and Rule 5 of the Tenne ssee Rules of Criminal Procedur e, h e further arg ues that his long detention in solitary confine ment without acc ess to co u n s el violated his Four th Amendment rig ht to be fre e from

unrea sonable sear ch and seizure. Finally
, he arg ues that under the totality of the circ umstances his
statement was unknowing and involuntary
, violating his Fifth Amendment rig ht not to inc riminate himself. The State arg ues that the trial court proper ly denied the motions to suppress the statement. We ag ree with the State.

When this court revie ws a trial court’s ruling on a motion to suppress evidenc e, “[q] uestions of credibility of t he witnesses, the weig ht and value of the evidence, and resolution of conflicts in the evidenc e are matters entrusted to the trial judge as the trier of fac t.” State v. Odom, 928 S.W .2d 18, 23 (Tenn. 1996). The party preva iling at the suppression hear ing i s afforded the “strong est leg itimate view of the evidenc e and all rea sonable and leg itimate infere nces that may be draw n from that evidenc e.” State v. Keith, 978 S.W .2d 861, 864 (Tenn. 1998). The finding s of a trial court in

a suppression hear ing are upheld unless the evidenc e preponde rate s ag ainst those finding s. See id. Howeve r, the a

pplication of the lawto the fac ts found by the trial cour

t is a question of law

and is revie wed de novo . See State v. Ye arg an, 958 S.W.2d 626, 629 (Tenn. 1997).

-6-A defe ndant’s Six th Am endment rig ht to counsel attache s when the adver sarial judicial

proce ss has beg un. Montejo v. L ouisiana,

__ U.S. __, 129 S. Ct. 2079, 2085 (2009); Br ewe r v. Wil liams, 430 U.S. 387, 401, 97 S. Ct. 1232, 1240 (1977); State v. Rolli ns, 188 S.W .3d 553, 565-66 (Tenn. 2006). “[T] he clea r rule of Massiah is that once adver sary p roceeding s have commence d
ag ainst an individual, he has a rig ht to leg al repr esenta tion when the g overnme nt interrog ates him.” Br ewe r, 430 U.S. at 401, 97 S. Ct. at 1240 (footnote omitted). I n Tenne ssee, the adver sarial judicial
proce ss is initiated upon the filing of the formal char g e, which includes the arr est war rant, indictmen t , p rese ntment, or the preliminary hear ing in case s in which a war rant was not obtained prior to the defe ndant’s arr est. See Rolli ns, 188 S.W .3d at 566; State v. Mitchell, 593 S.W .2d 280, 286 (Tenn. 1980) ; State v. J ackson, 889 S.W.2d 219, 222 (Tenn. Crim. App. 1993).

A criminal defe ndant also has a rig ht to cou n sel that is encompa ssed within his Fifth Amendment rig ht ag ainst self-inc rimination. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966); Huddleston, 924 S.W .2d at 6 6 9

. Bo th the United States and Tenne ssee Constit utions protec t a defe ndant from being compelled to g ive evidenc e ag ainst himself. See U.S. Const. ame nd. V; Tenn. Const. art. I
, § 9. Thus, to be admissible at tr ial, a confe ssion made while under custodial interrog ation must be shown to h av e been fre ely and voluntarily made, afte r the defe ndant’s knowing waiver of his constitutional rig ht to rema in silent an d to have an attorney prese nt during questioning. See Mi ra n da, 384 U.S. at 444, 86 S. Ct. at 1612. I n Rolli ns, our supreme court applied Patterson v. I llinois
, 487 U.S. 285, 108 S. Ct. 2389 (1988), to c onclude that when a defe ndant is adequa tely informed of “‘the dang ers and disadvantag es of self-r epre sentation’” by proper ly executed Miranda war nings, “his waiver of h i s S i x t h Amendment rig ht to counsel at such questioning is ‘knowing and intelligent.’ ” 188 S.W .3d at 566 (quoting Patterson, 487 U.S. at 300, 108 S. Ct . at 2389).

I n Montejo v. L o u i siana, submitt ed by the State as supplemental authority in the case , the United States Supreme Court overr uled Michig an v. J ackson, 475 U.S. 625, 106 S. Ct. 1404 (1986), which forba de police from initiating interrog ation of a criminal d ef en d an t once he has reque sted counsel at an arr aig nment or other simil ar proce eding

. Montejo,

__ U.S. at __, 129 S. Ct. at 2091. T h e C o u rt conclude d that the marg inal benef its of the J ackson rule wer e outweig hed by the substantial costs to the truth-see king proce ss and the criminal justice sy stem, noting that the purpose behind the rule – to preve nt police from badg ering defe ndants into waiving their previously asser ted rig hts – w as alre ady

larg ely met by the protec tions afforde d by Miranda, E dwar ds v. Arizona, 451 U.S. 477, 101 S. Ct. 1880 (1981), and Minnick v. Mississ ippi, 498 U.S. 146, 111 S. Ct. 486 (1990):

These three lay ers of prophy laxi s a r e s u f f ic ie n t. U n d e r th e Miranda- Edwar dsM i n n i ck line of case s (which is not in doubt), a defe ndant who does not want t o speak to the pol ice without counsel present need only say as much when he is first
ap p roached and g iven the Miranda war nings. At that point, not only must th e immediate contac t end, but “badg ering ” by later reque sts is prohibited. I f that reg ime suffice s to protec t the integ rity of “a suspect’s voluntary choice not to speak outside his lawy er’ s prese nce” befor e his arr aig nment, [Tex as v.] Cobb, 532 U. S. [162,] 175, 121 S. Ct. 1335 [(2001)] (Ke nnedy
, J
., concur ring ), it is hard to see why it would not

-7-also suffice to protec t that same choice after arra ignme nt, when Si x th Amendment

rig hts have a ttached.

Montejo, __ U.S. at __, 129 S. Ct . at 2090.

The defe ndant does not dispute that he initiated the May 11 interview or that he was provided with Miranda war

nings prior to g iving the statement. I nstead, he contends that “[a]ny arg ument by the g overnme nt that [he] waived his rig ht to an attorney

. . . beca use [he] wa s m i ra n d i z ed is irrele vant” bec ause his Six th Amendment rig ht to counsel had alre ady been violated by the excessively long period he spent in solitary confine ment wi t h o u t having counsel appointed to repr esent him. We respe ctfully disag ree

.

The Six th Amendment g uara ntees an acc used the rig ht to t he assistance of counsel at “‘c ritical’ stag es in the criminal justice proce ss ‘whe re the results might well settle the acc used’s fate and re duce the trial itself to a mere formality .’” Maine v. Moulton, 474 U.S. 159, 170, 106 S. C t. 477, 484 (1985) (quoting United States v. Wade, 388 U.S. 218, 224, 87 S. Ct. 1926, 1931 (1967))

. The transcr ipt of the April 11, 2005 arr aig nment, which the de fenda nt filed as a supple ment to the

rec ord, ref

lects that the lawy er the trial court attempted to appoint at t h e hear ing had a conflict. When the court rec alled the defe ndant later that same day
, it stated that it neede d time to “study ” the
matter and to ensure that the counsel appointed was qualified for a first deg ree m u rd er ca s e and would be able to continue repr esenta tion throug hout the pendenc y of the case

. The court expressed its int ention of completing the appointment “within the next t wo day s.” Obviously , the trial cour t

was unable to find qualified counsel within that time frame. Howeve r, prior to the May 11 interview, the defendant had not underg one an y cr i t ical st ag e in the criminal proce ss at which he needed the assistance of counsel in order to ensure a fair outcome to his case

. The defe ndant himself initiated the interview, as he aff

irmed in his stateme nt, and explained that he wa s motivated to do so by his mother’s e x hortations and his own re ading of the B ible.

We also disag ree with the defe ndant’s contention that the statem en t should have been suppressed under the totality of the circ umstances on the basis that it violated his Fifth Amendment ri g ht to be free from s elf-inc rimination. The defenda nt asser ts that the period he spen t i n s o l i t ar y confine ment without acc ess t o counsel, during which time law enfor ceme nt personne l “both

encour ag ed and threa

tened” him to g ive a statement, rend er ed t he statement unknowing and involuntary despite the prese nce of Miranda war nings. Howeve r, as the State points out, the rec ord

reve als t h at the defe ndant had a leng thy criminal history and had been repe atedly Mirandized, including just befor e g iving the May 11 statement. Thus, the defe ndant was obviously familiar with the criminal j u s t i ce sy stem. Fur thermore
, the defe ndant still had contac t with the outside world despite being in solitary confine ment, as evidenc ed by his May 11 statement in which he explained that he was motivated to speak to the office rs by the advice his mother had just g iven him during her

rec ent visitation. Finally
, althoug h Chief Deputy Sill s ac k n o wl edged that either he or the sheriff

en coura g ed the defe ndant to rea d his Bible, he denied that he initiated any conver sation with the defe ndant about the crimes or that the defe ndant was threa tened or coer ced into g iving the statement.

-8-The evidenc e, there fore
, does not preponde rate ag ainst the trial court’s finding that the statement was

voluntary

.

The defe ndant also contends that the statement should have been suppressed on Four th Amendment g rounds pursuant to the holding in Huddleston, 924 S.W .2d at 670, and Rule 5 of the Tennes s ee Rules of C riminal Procedur e, because he was not timely broug ht befor e a judge on the probation violation char g e for which he was arr ested. The State arg ues, inter alia
, that the defe ndant suffe red no Four

th Amendment viol ation beca use he was lawfully arr ested and d et ai n ed pursuant to a proba tion violation warrant.

I n Huddlest o n, our supreme court conclude d that a statement g iven afte r more than forty

eig ht hours’ detention, following a war rantless arr est an d wi thout a judicial deter mination of probable cause, s h o u l d be suppressed on Four th Amendment grounds unless the S tate establishes that it “‘w as sufficiently an act of fre e will to purg e the primary taint of the unlawful invasion.’” 924 S.W .2d at 674 (quoting Br own v. I llinois
, 422 U.S. 590, 598, 95 S. Ct. 2254, 2259 (1975)) (interna l quotations omitted). Tenne ssee Rule of Criminal Procedur e 5 provides in pertinent part that “[a]ny
person arr ested

– except upon a capia s pursuant to an indictment or prese ntment – shall be taken without unnece ssary delay befor e the near est appropr iate mag istrate

. . . .” Tenn. R. Crim. P. 5(a) (1).

Our supreme court has observe d, howeve r, that “the i s s uance of a valid arr est war rant satisfies the require ment that there must be a judicial deter mination of probable cause for extended detention.” State v. Carter
, 16 S.W .3d 762, 766 (Tenn. 2000) (citing Ba ker v. McCollan, 443 U. S. 137, 143, 99 S. Ct. 2689, 2694 (1979))

. Chief Deputy Sill s testified at the suppression hear ing that the defe ndant was picked up from the Dy er County J ail on a probation violation char g e and booked into the Crockett County J ail, wher e he was held on a $10,000 bond. At trial, he c larified tha t his Marc h 18 arr est o f t he defe ndant was pursuant to a probation violation war rant, which had been signe d by the judge on behalf of the probation office r. When rec iting the proce dural history of the

case , the prosec utor informed the court that the de fenda nt had violated his pr obation in a previous

ca s e as a re sult of a burg lary char g e to which he had entered a g uilty plea in Fe bruar y 200 5

. W e, there fore , ag ree with the State that there was no F ourth Amendment violation in this case.

Ba sed upon this rec ord, the evidenc e does not preponde rate ag ainst the trial court’s finding s that the def

en d ant’s statement was knowing ly and voluntarily enter ed afte r he had been g iven adequate Miranda war

nings and signe d a valid waiver of his ri gh t t o remain silent or to have an attorney prese nt during questioning. We conclude
, there fore
, that th e t ri al court did not err in denying the defe ndant’s motions to suppress his statement.

II. Violation of

Sequestration Rule

The defe ndant next contends that the State failed to meet its burden of showing that he was not prejudice d by the fac t that some of the jurors used their cell phones without prior authorization. We respec tfully

disag ree

.

-9-“Onc e a de fenda nt shows that a [sequestere d] jury has been separ ated, the burden shifts to the State to show that such separ ation did not result in prejudice to the defe ndant.” State v. J ackson, 173 S.W .3d 401, 410 (Tenn. 2005) (citing Gonzales v. State, 593 S.W .2d 288, 291 (Tenn. 1980)). “I f the State fails to meet the burden of showing that the separ ation did not result in prejudice
, a new trial is require d.” State v. B ondurant, 4 S.W.3d 662, 672 (Tenn. 1999).

The rec ord ref

lects that the trial court instructed the jurors at the beg inning of the trial not to make any telephone calls without informing the deputy befor ehand that they would be doing so and their i ntended topic of conversation. After the j ury had been charg ed, defense coun s el b roug ht to the court’s attention the fac t that sever al of the jurors h ad been seen talking on their cell phones during a bre ak in the case

. Def ense counsel then moved for a mistrial on the gr ounds that the rule of sequestration had been violated. The trial court denied the motion, stating it would not presume that any prejudicia l conver sations had occur red but would inquire into the situation afte r the jurors
returne d their verdic ts. I n the meantime, the court had the sheriff re- ins t ru ct the jurors not to use their cell phones. After the verdic ts and sentenc ing decision wer e rende red, the trial court inquired

as to whether any of the jurors had discussed or rec eived any information about the case during any cell phone conver sations. The jurors indicated as a whole that they had not, and the trial court then pol l ed t h e j u ry , rec eiving eac h juror’s assura nce that any cell phone conver sations that may have

occur red c oncer

ned only persona l or family

matters.

We disag ree wit h t h e d efe ndant’s assertion that the j urors’ assuranc es were insufficient to satisfy the State’s burden of showing that no prejudice to the defe ndant occ urre d. Despite the fac t that the cell phone conver sations may not have been pre- authorized, eac h juror assure d the court that he or she had not rec eived or imparted any information about the case and that the conver sations

wer e unrela ted to the trial. We conclude
, there fore
, that the defe ndant is not entitled to relief on the basis of this issue.

III. Unavail abili ty of Witness

The defe ndant next contends that the trial court err ed in ruling that the surviving victim, L ewis Nee ly
, was unavailable at trial. The defe ndant asser ts that he prese nted proof to show that the victim was phy sically and mentally capa ble of trave ling to Tenne ssee and offe ring testimony at trial, and that the trial court should have there fore issued a capia s for his arr est to ensure his compliance with the trial subpoena. The State arg ues that the trial court proper ly found Nee ly unavailable as a witness due to his numerous health problems and the fac t that he had previously demonstrated that he wa s either una

ble or unwilling to comply with a trial subpoena . We ag ree with the State.

Under Tenne ssee Rule of Evidence 804, a witness may be decla red unavailable in situations wher e her or she persists in ref using to testify despite an order of t he court to do so; demonstrates

a lack of memory ; is unable to be prese nt or to testify at the hear ing beca use of death or phy sical or mental illness or infirmity ; or is absent from the hear ing and the proponent of the witness’s
statement has been unable to procur e the witness’s attendanc e by proce ss. Tenn. R. Evid. 804(a) (2)- (5). When a w i t n es s i s decla red unavailable, his or her testimony g iven at another hear ing or at a

-10-depositi o n i s ad m i s sible as an exception to the rule ag ainst hear say

. Tenn. R. Evid. 804(b). This

court revie ws a t ri al co urt’s ruling on the unavailability of a witness under an abuse of discretion standard. State v. Summers, 159 S.W .3d 586, 596 (Tenn. Crim. App. 2004); Hicks v. State, 490 S.W .2d 174, 179 (Tenn. Crim. App. 1972)

.

L ewis Nee ly
, who was living in a Michig an nursing home, did not respond to the first trial subpoena. The trial court g rante d the defe ndant’s reque st for an independe nt medical examination, which found that Nee ly was “unable to g ive .

. . a his tory due t o aphasia seconda ry to stroke” and unable to communicate verba lly with the nursing home staff. The examining phy sician conclude d, howeve r, that Nee ly “appe ar[ed] phy sically capa ble of trave ling to T ennesse e without limitations” b ut would “re quire assistance due to his inability to verba liz e[.] ” At a March 6, 2008, hear ing on the matter, howeve r, the Sta t e introduced two letters from the victim’s attending phy sician who stated that i n h i s opinion Nee ly
, who had suffe red three strokes and also had, among other conditions, diabetes, convulsions, and dementia, was neither phy sically no r mentally capa ble of participa ting in the Te nnessee trial.

Def ense counsel countered t h at he had anec dotal evidenc e that Nee ly was able to communicate and reque sted that the trial court g rant both a motion for another out-of-state subpoena compelling Nee ly ’s attendanc e at trial and a motion for his deposition. Def ense counsel also
reque sted that the court issue a capia s for Nee ly ’s arr est, sug g esting that it woul d be the responsibility of t he sheriff’s de partment to make suitable arr ang ements for Nee ly ’s t ranspor t and medical car e, such as an ambulance and acc ompany ing medical personne l. The trial court declined to issue the capia s, concluding that, based on the information befor e it, Nee ly ’s failure to appea r at the first t ri al d at e re sulted from his phy sical incapa citation. The court did, howeve r, sign both a

cer tificate for another out-of-state subpoena and the order for a deposition, explaining that if Nee ly

was a ble to appea

r at trial, de fense counsel would not nee d the deposition, but in the event he was unable to attend, which the court though t likely
, the deposition could be introduced. Nee ly ultimately

failed to a

ppear for tria l, and def

ense c ounsel introduced his de position t estimony

.

We find no abuse of discretion in the trial court’s handling of this matter. Nee ly ’s phy sician opined that he was both phy sically and mentally incapa ble of testify ing at trial, and the defe ndant’s

own independe nt medical expert rec og nized that he suffe red fr o m ap h asi a and was unable to communicate. Nee ly ’s appea ranc e and demea

nor in the videotaped deposition wer e consistent with these o p i n i o n s. Although he direc ted his attention to the questioner, he appea red befuddle d and disori en t ed b y the proce eding s and was larg ely unresponsive, answe ring only “Ye ah,” “No,” and “Sir? ” to simple questions and staring blankly when asked about the photogr aphic arr ay he had been shown while in the hospital afte r the shooting. We note that the cruc ial information defe nse counsel presumably wanted to elicit from Nee ly
, that he had identified from the photogr aphic arr ay someone unrela ted to the case , and had not identified the defe nd an t , wa s broug ht out at trial throug h the testimony of Chief Deputy Sill s. I n addition, as the State points out, the trial court permitted defe nse counsel to a

rg ue to the jury that Nee ly ’s live testimony would have been better than his deposition beca use the j u ro rs co u l d have made their own deter minations as to his mental capa city

. We conclude , there fore , that the def endant is not entitled to relief on the basis of this claim.

-11-IV. P rior Bad Act Evidence

The defe ndant next co n t en ds that the trial court err ed in denying his motion in limine to exclude prior bad act evidenc e of the defe ndant and his companions. Specifica lly
, he complains that the trial court shoul d n o t h av e al l o wed the jury to hear the portion of his statement in which he rela t ed h o w h e, Spivey
, and Taylor had attempted to rob the victims on the night prec eding the murder. The State arg ues that the trial court proper ly admitted the evidenc e beca use it was rele vant to show the defe ndant’s intent and “ completed the story” for the jury . We ag ree with the State.

Tenne ssee Rule of E vidence 404(b), pr ovides as follows:

Other Crimes, Wrongs, or Acts. Evidenc e o f o t her crimes, wrongs, or acts is not adm i s s i b l e to prove the char acte r of a person in order to show action in confor mit y wi th the char acte r trait. I t may , howeve r, be admissible for other
purposes. The conditions which must be satisfied befor e allowing such evidenc e are :

(1) The c ourt upon reque st must hold a hear ing outside the jury ’s pre sence ;

(2) The court must deter

mine that a materia l issue exis ts other than conduct conf o rm i n g wi th a char acte r trait and must upon reque st state on the

rec ord the mat er i al i s sue, the ruling
, and the rea sons for admitting the evidenc e;

(3) The court must find proof of the other crime, wrong , or act to be clea r and convincing ; and

(4) The court must exclude the evidenc e if its probative value is outweig hed by the dang er of

unfair pr ejudice.

Ex ceptional case s in which evidenc e of an acc used’s prior bad acts w il l be admissible include those in w hich the evidenc e is introduced to prove identity
, intent, motive, opportunity
, or rebuttal of mistake or acc ident. State v. Drinkar d, 909 S.W .2d 13, 16 (Tenn. Crim. App

. 1995). Such evidenc e may also be admitted in or der to c omplete the story of the crime for which the acc used is

on trial. See Neil P. Cohen et al., Tenne ssee L aw of Evidence § 4.04[13] (5th ed. 2005). Where the trial judge has substantially complied with proce dural require ments, the standard of revie w is abuse of discre tion. St ate v. DuB ose, 953 S.W.2d 649, 652 (Tenn. 1997).

The defe ndant beg an his acc ount of the crimes by telling the office rs that he, Sp i v ey , and Taylor had g one to the victims’ home on the night prec eding the murder and that Taylor had enter ed the house wi t h a s h o t gun hidden in his pants leg but had been “run off” by the victims. The defe ndant said that when he and his co m p an i o n s wer e discussing the failed robber y with their
g irlfriends, the defe ndant’s g irlfriend told them how the r obbery should be committed, sugg esting that the defe ndant g o to the home under the prete nse of wanting to buy some liquor from the victims.

-12-The defenda nt stated that Tay

lor rec ruited B ricc o to help beca use he w as known to have acc ess t o

a pistol and that the shooting beg an when L ewis Nee ly rec og nized Taylor from the previous night’ s aborte d robber

y attempt and ra

n to ge t his own gun.

After listening to the arg uments of counsel in a pretria l h ea ri n g , the trial court ruled that evidenc e of the previous night’ s robber y attempt was admissible, stating, in pertinent part: “ I think it does complete the story and I think that the other comments the Gene ral made [t hat the evidenc e showed the defe ndant’s intent and preme ditation] are g ener ally in line with what the Court fee ls on that matter.”

The trial court did not make the requisite finding s for the admission of evidenc e under Rule 4 0 4 (b). Reg ardle ss, we ag ree with the trial court that the evidenc e was rele vant t o s h o w t h e defe ndant’s int ent and motive and to complete the story of t he of fe n s es for the jury

. Fur

thermore
, in our view, the prejudicia l impact of such evidenc e did not outweig h its strong probative value. We conclude , there fore , that the trial cour t did not err in admitting the e vidence

.

V. Im proper Opini on Evi dence

As his final issue, the defe ndant contends that the trial court err ed by allowing Sheriff Troy Kly ce to offe r improper o p i n i o n evidenc e about the possible source of a scar he observe d on the defe ndant’s hand. The State arg ues that the evidenc e was proper ly admitted lay testimony rele vant to an issue at trial a

nd based on the office r’s own pe rsonal experienc e.

Sheri ff Kl y ce testified that he observe d a scar or old wound on the defe ndant’s left hand betwee n his thumb and index fing er while he was taking the defe ndant’s Marc h 21, 2005 statement. After stating that he was familiar with semi-automatic pist ols, Sheriff Kly ce describe d the s liding mecha nism by which such pistols ejec t a shell afte r eac h shot and testified that he had once been injured while firing a semi-automatic wea pon when the slide on the pistol cut his hand betwee n the index fing er and thumb. Over the defe ndant’s objection, the prosec utor asked the sheriff if the scar he had observe d on the defendant’s hand was consistent with the s car he had rec eived from firing the semi-automatic w eapon. I n response , the sheriff

replied tha t it was located in the same place

.

Tenne ssee Rule of E vidence 701 provides:

I f a wi t ness is not testify ing as an expert, the witness’s testimony in the for m o f opinions or infere nces is limited to those opinions or inferenc es which a re

(1) rationally

based on the perc eption of the witness a nd

(2) helpful to a clea

r understanding of the witness’s testimony or the deter mination of a fa ct in issue.

-13-We a g ree with the State that Sheriff Kly ce’ s testimony
, to the eff ect that the defe ndant had

a wound located in the same place as a wound he had rec eived from firing a semi-automatic wea pon,

was rationally based on his own experience and perc eption. We conclude
, there fore
, that the defe ndant is not entitled to relief on the ba sis of this claim.

CONCLUSION

Ba sed on the fore g oing authorities and rea soning, we aff irm the judgme nts of the trial court but rema nd for entry of a corr ecte d judgme nt to ref lect that the defe ndant rec eived a life sentenc e for his first deg ree murder c onviction.

___________________________________ AL AN E. GL ENN, JUDGE

-14-