### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE February 24, 1998 Session

STATE OF TENNESSEE v. JAMES HENDERSON DELLINGER & GARY WAYNE SUTTON

Appeal as of Right from the Criminal Court for Blount County

No. C-6670 D. Kelly Thomas, Jr.,

No. E1997-00196-CCA-R3-DD March 7, 2001

On April 6, 1992, the Blount County Grand Jury indicted Appellants James Henderson Dellinge r and Gary Wayne Sutton for one count each of first-degree murde r in the death o f Tommy Griffi n. Following a jury trial, the Appellant s were convi cted of first degree murder. After a subsequent sentencing hearing the jury imposed the death penalty on b oth appella

nts. They raise thirty five alleged errors concerning both the guilt and sentencing phase of the i r trial. After a review of the entire record we have

concluded there

is no reversible error and we therefore A

FFIRM the ve

rdict.

Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt is Affirmed.

J ERRY S MITH , J., delivered the op inion of the court,

in which J AMES C URWOOD W ITT , J R ., J. CONCUR , P AUL G. S UMMERS , J., not partic ipating.

EugeneB. Dixon; Charles Deas, Maryville, Tennessee, for appellant, James Henderson De llinger, andF.D. Gibson, Maryville, Tennessee and John

Goergen, Knoxvil

le, Tennessee, f

or the appellant, Gary Wayne Sutton.

John Knox Walkup, Attorney General & Reporter; Michael E. Moore , Solicitor Genera

l; Kenneth W. Rucker, Assistant Attorney General; and Mike Fly nn, District Attorney General, for the appellee, State of Tennessee.

OPINION

I. FACTS

Stella Griffin Whitted testified that she was the sister of the victims in this case, T ommy Griffin and Connie Brana

m. She testified tha

t her brother had

been twenty

-four yea rs old at the time-2-

of his death and had w

alked with a prono

unced limp due to an

earlier amputat

ion of one of his leg

s. She also testified that her sister was thirty-three y ears old at the time of her death. Jamie Carr testifi ed t hat she was workin g as a barmaid a

t Howie’s Hideaw

ay Loun ge in Maryville, Tenne ssee on February 21, 1992. Carr stated that during her shift, Appellants and a n individual whomshe later learn ed was Tommy

Griffin arrive

d in a dark blue Cam

aro or Trans Am. The three men sat in a booth and began drinking beer. Terri Newman testified that when she arrived for work at Howie’s Hideaway on February

21, 1992, a blue Camaro or Gran d Prix was parked in her parking space. When Newman entered the establishment,

she saw Appellan

ts and Griffin dri

nking beer and s

hooting pool. Newmanstated that the three men left Howie’s Hideaway at approximately 7:00 p.m. Cynthia Walker testified that on Febru ary 21, 1992, she and Kevin Walker were returning
to Knoxville from Maryville when she saw a dark-colored Camaro par ked in the emergency lane of the Alcoa Highway. Ms. Walker stated that she tho ught there m igh t have been a fig ht because it appeared that someone was being pulled from the passenger side of the Camaro. Kevin Walker testified th

at he had also see

n the altercation

that occurred i n and around a dark-colored

Camaro that had on

ly one headlight. Mr. Walker stated that after he saw a person who

was outside of

the Camaro fighting with a person who was inside the Camaro, he used his radio to report the incident to Blount County authorities. Mr. Walker stat ed that the incident happened at approximately

7:00 p.m. Sharon Davis testified that she and her family had also been driving along Alcoa Highway
at approximately 7:00 p.m. on February 21, 1992, when she notice d a man on the side of the road who was not wearing a shirt or shoes and who appeared to be stumbling around. Davis stated that she and her family traveled approximately one mile down the road to eat at the Waffle House, and upon their return, she saw a dark-colored Camaro that was near the place where she had seen the man who was not

wearing a shirt or

shoes. Davis also saw two men by the Camaro who appeared to be searching for something or someone. Sandra Hicks testifiedthat while she was working as a dispatcher at 7:11 p.m. on February 21, 1992, she received a report about a fight involving some people in ablack or dark-colored Camaro. Hicks then dispatched Officer Steven Brooks to investigate. Officer Steven Brooks of the Alcoa, Tennessee Police Department testified that he received the dispatch ab out a possi ble figh t at approximately 7:00 p.m. When Brooks arrived at the scene approximately

two minutes later, he observed nothing unusual. Brooks then made a routine tr

affic stop and when he began questioning the occupants of the vehicle, he n

oticed another ve

hicle on Hunt Road that was flashing its lights er rat ica lly. Brooks then radioed Officer Drew Roberts and requested that Officer Roberts check on that vehicle. Brooks testified that

when he subsequently joined Roberts, he saw two men standing beside

a S-10 pickup and saw another man sitting on the tailgate of the truck. Brooks stated that the man

on the tailgate was not

wearing a shirt and it appeared that he had been involved in a fight because he was upset and he had abrasions on his back and neck. Officer Drew Roberts testified that when he questioned the man who was not weari

ng a shirt, the man told the officers that his name was Tommy Griffin and that he lived in S evi er C oun ty. Griffin initially told the officers that an argument had taken place and that some friends put him out of the car, but when

questioned furthe

r, he stated that th

e men were not re

ally his frie

nds. Griffin-3-

refused to give any other information. Roberts subsequently arrested Griffin for public intoxication and took him to the Blount County Jail. Sergeant Ray Herr on testified that Griffin was booked into the Blount County jail at 7:40 p.m. on February

21, 1992 . Herron stated that approximately forty-five minutes later, appellant Dellinger approached him to see when Griffin could be released. Herron

told Dellinger th

at Griffin would be kept a minimum of four hours. Herron stated that Griffin was subsequently released from jail at 11:25 p.m. when Dellinger returned to the jail and posted a cash bond. Captain Kenneth Beeler testified that on February 21, 1992, he saw both Appellants in the lobby of the Blount

County Jail at approximately 11:15 p.m. Lieutenant Tom Defoe testified that

on the evening of February 21, 1992, he saw Appellants enter the lobby of t

he Blount County

Jail andhe noticed t hat one of th em was carrying a shirt. Shortly thereafter, Defoe saw Appellants leave the jail with an individual who had just been released. Alvin Henry testi

fied that he lived

in the same

neighborhood as both Dellinger and Griffin. Henry stated that at approximately 9:00 p.m. on February

21, 1992, he looked

out the window of his residencewhen his dog started barking. When Henry looked down the road, he saw someone getting in Dellinger’s white pickup truck. He nry then saw the truck drive up

the road and pull in

to Dellinger’s driveway. A few seconds later, Henry look ed back do wn the road and noticed that flames were shooting out of Griffin’s trailer. Jennifer Branam, Griffin’s niece, testified that on the night of February 21, 1992, her sister

came into her bedroom and yelled that Griffin’s trailer was on fire. Jennifer B ranam thenawakened her father and ran to Dellinger’s trailer to see whether Griffin was there. Jennifer Br anam statedthat she believed that Dellinger was at home because his truck was in the driveway

. She then knocked

on the door and Linda Dellinger answered. Jennifer Brana m stated that when s he asked whether Dellinger was home, Lind a said that he was not there. Howev

er, Jennifer Bra

nam then saw both Appellants

walking down the hall. Shealso noticed that th ey were bo

th wearing jac

kets and their pants were wet up to their knees. When Jennifer Branam asked Sutton if Grif

finwas in the trailer, Sutton replied that Grif

fin was in Blo

unt County

with a girl. Jennif

er Branam then

asked both Appellants

to accompany her

to Griffin’s trailer, but Dellinger said he could not go because he was in enough trouble already. Jennifer Branam te stif

ied that later that night, she saw Appellants move an object from Dellinger’s truck to

Linda Dellinger’s car. Jennifer Branam stated that the object was two to three feet long and it was covered with a sheet. She stated that Appellants then left in the car. The following morning, Jennifer Branam saw Dellinger remove the object that had been put in the trunk of his wife’s car and place it under his trailer. She stated that the object looked like a shotgun. HermanLewis, a

neighbor of Griffin, testified that at approximately 10:00 p.m. on February 21, 1992, he saw someone who looked like Dellinger come out of the Dellinger trailer and pu t something white that was about the size of a walking stick in the back of a car. He stated

that two people had been in the ca

r when it drove awa y, but he admitted that he could not identify the two people. Sandy

Branam, another of Griffi n’s nieces, testified that she had a conversat

ion with Dellinger at approximately 9:00 p.m. on February 21, 1992, during which sheinquired about Griffin. She stated that defendant Dellinger told her that Griffin was at the Blount County Jail and t hat h e andSutton were going

to get him out of jail.

Sandy Bra

nam also stated he

r mother had prev

iously-4-

complainedthat there was a faulty plug behind the television set in Griffin’s trailer. She also stated that she saw three ve

hicles in the Dellin

ger driveway

on the night of the

fire: an Oldsmobile

, a white truck, and a Camaro. Sandy Branam also testified that aro und noon on February 22, 1992, her mother, Connie Branam, stated that she was going to look for Griffin in Blount County. Jason McDonald testified that at 11:55 p.m. on February 21, 1992, he heard two or three gunshotscomin g from

the Blue Springs/Blue Hole area near his home. Brenda McKee han, McDonald’s mother, testifiedthat she also heard two gunshots on the evening of February 21, 1992. Jerry Sullivan, owner of a grocery store in Townsend, Te n nessee, testified that on the afternoonof February 22, 1992, Connie Branam came into his store in searc h of information concerning her brother, Griffin. She showed store employees a picture of he r b rother and asked Sullivan if she could leave her car in his parking lot. Sullivan testified that when he accompanied Branam outside to

ensure that her car was not blocking anyone, he saw her talking to two men in a white pickup truck. He stated, however, that he did not get a good look at the men and he could not identify them. Jamie Carr testified that she was workingat Howie’s Hideaway on February 22, 1992, when Appellants

came in with Connie Branam. Carr stated that Branam was looking for her brother and she was crying. When Branam began te lling Carr about Griffin’s trailer burning down, Dellinger interruptedby asking w

hether Carr rem

embered if

Del lin ger h ad b een i n th e bar the prev iou s da y. When Carr told

Dellinger that she definitely remembered him from the previous day , he continued
to interrup t he r by asking if she was sure that she remembered that he had been in the bar the day before. Carr testified tha

t Dellinger then

stated that he thou

ght that Griffin

might have retur

ned to the bar after he wa

s released from

jail. Dellinger

then told Carr that he left Griffin with a woman down the road. Terri Newman testified that when she arrived for work at Howie’s Hideaway at 5:00 p.m. on February 22, 1992, Appellants were in the bar with Connie Branam. Newman stated that Dellinger immediately asked her if she remembered him and Sutton from the day before. Branam then said that she was looking for her brother and wanted to know

withwhom he had left the bar. Newman stated that she was confused because she knew that Griffin had l e ft the bar with App

ellants. Newman also stated that Dellinger told her that he and Sutton brought Griffin into the bar after he

was released from jail, but Newman remembered that the group le

ft at approximately

7:00 p.m. the prior evening. Newmantestified that

Branam became

“friendlier” w

ith Dellinger afte

r she consumed some alcohol and Dellinger subsequently became jealous when Branam began

flirting with another man who was in the bar. Ne

wman stated that Sut

ton subsequentl

y attempted

to get her to go with the three of them to look for Griffin, but she refused. She stated that Sutton then told her that her husband would be surprised when she ended up missing one morning. Newman

saw Branam leave with Appellants at approximately 6:30 p.m. James Gordon tes tified that while he was in the Clear Fork area of Sevier County at approximately

8:00 p.m. on February 22, 1992, he heard a high-pitche d whistle sound in the nearby woods. When he looked into the woods, he saw a fire approximately two hundred yards aw ay. Mr. Gordon stated that beca use he thought the

fire was started by campers, he made no further investigation. However, at approximately 7:00 p.m. on F ebruary 28, 1992, he and his foster son were in the area of the fire and they found a burned vehicle that contained a body.-5-

Barbara Gordon testified that the day after the fire, she

saw a white truck coming from the

scene of the fire that was traveling at a high rate of speed. She stated that the truck appeared to have two occupants. Thomas Carter testified that while heandhis children were fishing in the Blue Hole area of Blount County on Fe

bruary 24,

1992, his daughte

r informed him

that a man was lying

on the side of the riverbank. Carter

stated that when he investigated and saw the man lying fac e down, he called 911. Carter stated that he could see that the man had a bloody wound on the back of his hea d. Gary Hamilton of the Blount County Sheriff’s Depa

rtment testified th

at he went to

the Blue Holecrime scene on February 24, 1992. Hamilton stated that he subsequently located the body and he also found two spent twelve-gauge shotgun shells and two empty beer cans by the body. Dr. William Bass, an expe rt in forensic

anthropology, testified that he had been called by the Sevier County Sheriff’s Department to conduct an analy sis of the scene where t

h e body had been found in the burned car

. Dr. Bass identif

ied a photograp

h of the burned ve

hicle and stated t

hat a body was found

lying in the fro

nt seat. H

e stated t hat in lig ht of his exp

erience in inv estigating deaths, it appeared that an accelerant was poured in the vehicle due to the burn pattern. He testified that because the victim’s arms and legs had been burned off and the skull had been cremated at the top, he determined

that something wo

uld have had to hav

e been added to th

e vehicle to

present such

a high amount of burning. Dr. Bass stated that the body was so extensively burned that he had been unable to determine a cause of death, however, a positive identification of the victim a s Connie Branam h ad been made from dental records. Dr. Bass also stated that a rifle cartridg e shell was found at the scene. Gary Clabo, an arson inves ti gator for the State of Tennessee, testified that he was notified of a fire involving an automobile and a dead body on February 28, 1992, and that he arrived at the

scene at a p proximately 11 :00 p.m. Due to the da rkness, an offic

er guarded the

vehicle that nig

ht, andClabo began his i nvestigation the next morning. Clabo testified that the vehicle was burned severely and the int erior was al most tota lly destroyed. Fol lowing a det ailed inve stiga t ion, he concluded

that the fire did not begin in the engine compartment because the engine components were essentially

intact. Rather, burn patterns indicated that the fire had started in the front seat area and that an accelerant had been placed on the floor to make it burn hotter and faster. Clabo concluded that the fire had been set by human hands with the use of an outside ignition source. Clabo then t es tified that he had investigated the fire that destroyed Griffin’s tra iler. After explaining his method of investigation, Clabo opined that the trailer fire had also been set by human hands and that a liquid

accelerant had been used. He stated that he had checked the electr ical system andappliances and conclud ed that t here was no evide

nce of any

electrical-ca

used fire from tho

se items. On cross-examination, Clabo admitted that he took samples from the vehicle to betested for accelerants,

butthe report he obtained from the Tennessee Bur

eau of Inves

tigation (“TBI

”) lab did
notreveal any petroleum distillate. However, Clabo stated that it was not unusual to get a negative report f rom th e TBI l ab due to con sumption and evaporat ion. Clabo also state d that the h igh whistling sounds heard by James Gordon could have been caused by contents of

aerosol cans in the trunk leaking out or by

the burning of th

e seats or a ti

re. Clabo admitte

d that none of Griffin’s-6-

neighbors had noticed the smell of any petroleum-based product during or after the fire. Clabo also admitted that he had not sent any samples from the trailer to the TBI lab to be tested for accelera

nts.

Dr. Eric Ellington te

stified that when h

e conducted an a

utopsy of Griffin’s body on February 25, 1992, he immediately noted that Griffin only had one leg and h e had incurred a wound to the bac k of his head that was an inch and a half in diameter. Dr. Ellington testified t hat the cause o f death was massive trauma or injury to the brain stem wh

ich was completel

y destroyed b

y a gunshot

. Dr. Ellington testified that he removed the brain from the skull and retrieved two metal pellets and
two objects which he concluded to be wadding. He stated

that he gave those objects to Deputy Lar ry Muncy. On cross-examination

, Dr. Ellington te

stified that beca

use he was not t

rained in forensic pat hol ogy, he had not attempted to determine the time of death. However, Dr. Ellington stated that the emergency technician’s report indicated tha t rigor mortis was present in Griffin’s body

when it

was recovered at 5:50 p.m. on February 24, 1992. Dr. Ellington stated that a ccording to textbooks he had studied, rigor mortis sets in about thirty minutes after death and lasts from twenty-fou r to thirty-six hours after death. James Widener, criminal investigator fo r the Blount County

Sheriff’s Depa

rtment, testified that he executed a search warrant for Dellinger’s trailer and surrounding property on February

28, 1992. Widener stated that the purpose of the search was t o look for shells, sh otgun shell casin

gs, and a shotgun. He stated that several expended shotgun shells were recovered

in both Dellinger’s yard and in an adjacent yard. He stated that a .303 rifle and a Mossberg shotgun barrel were found in Delling er’s bedroom. On cross-e xamination, Widener admitted that it appeared that Dellinger was

a gun trader

or collector and that various people he interviewed had stated that shooting and target practice often took place in Dellinger’s yard. Don Carman, special agent with the TBI, testified that

after an extensiv

e investigation,

his office concluded that

the .303 rifle shell recovered from the scene of the burned vehicle was fired from the rifle that was found in Dellinger’s home. He also testified that shot gun shells found i

n Dellinger’s yard a

nd the surr ounding area and the shells found near Griffin’s body ha d been fired from the same shotgun. Joseph Mason, firearms expert employ ed by the United States Treasury Department, testified that he had examined the

shell casings tha

t were recover

ed during the inv

estigati on of this c ase. Mason stated that he had determined that seven of the twelve-gauge shotgun cartrid ges delivered

to him for examination were fired from the same shotgun, including two shells found near Griffin’s body. Detective Widener was recalled to testify that he had interviewed both Appellants and that he had recorded the

interviews. Sutton’s tape recorded statement was then played for the jury , but after listening to it, the jury informed the trial court that they had been unable to glean anything from the poor recording. Detective Widener then testified during a jury-out hearing that he had examined the transcript of the statement and that the transcript was accurate. The transcript of Sutton’s statement was then submitted to the jury. On cross-examination, Dete ctive Widener admitted that both Appellants had maintained thei r innocence throughout their entire interrog

ation and stateme

nts. When questioned

about witnesses’ recollectionof the type of Camaro they saw on the Alcoa Highway on the night of the m urde r,-7-

Widene r ad mitted that their description might not have matched the exact model of the Camaro ownedby Sutton. Widen er also stated tha

t he had been told th

at Dellinger wa

s lik e a father to Griffin and that Sutton was like a brother to him. He admitted that evidence showed that Dellinger hadbailed the victim

out of jail on numerous occasions. He also stated tha t Dellinger had

given him

an unusual amount of

detail con cerning a dark-haired wo man with whom he had

last seen the victi

m and that Sutton had given an identical description. Mark Turner, Director of

the Narc otics Unit at the Sev ier County She

riff’s Departme

nt, testified that he saw Sutton on March 2, 1992, driving a 1984 Camaro with a large hood

scoop and only one headlight in working condition. Numerous witnesses testified on the behalf of A ppellants that they had previously shot shotguns at Dellin

ger’s proper

ty and that G

riffin had been f

riends with both App

ellants. Dr. Wayne Stewa

rt, a family

physician, t

estified that he ha

d treated Co

nnie Br anam as a patient and that on one occasion he treated her for injuries related to an assault committed by Jack Sutton. Dr. Stewart stated that he had t reated Branam for numerous ailments including severe sinusitis, recurring abdominal camps, andgrief over the loss of her father and worry over the medical condition of her mother. He also stated that he had

treated Brana

m for panic

attacks and acute grief and had prescribed valium, xanax, and vicodan on occasion. Matthew Cubberley, patrolman for the Sevier County Sheriff’s Department, testified that on February 10, 1992, he was called

to the home of Connie Branam on a report that Branam had taken

an overdose of

drugs. Cubberley stated that when he arrived at the sce ne, Branam attacked him and he arrested

her for assault and took

her to the emergency room. Cubberley also stated that Branam

was transported to a mental institution for a few days, and that the assault charges were subsequen

tly dropped. Dr. It toop M aliyekkel, psychiatrist at L akeshore Mental Health Institute, testified that he treated Connie Branam when

she was transported to the Lakeshore facility andthat she suffered from
acute depression. Dr. Maliyekkel also testified that a different drug

other than the one she overdosed

on was found in Branam’s urine drug screen and that he warned her that mixing medicat

ions could be fatal. On cross-examination, Dr. Maliyekkel stated that the dischar ge summary report reflected that when Branam left Lakeshore three day s after being admitted, she appeared sober, was not psychotic or depressed, and had no suicidal ideation. Car olyn Weaver testified that she had been Sutton’s girlfriend in February of 1992. Weaver stated that she had seen

Sutton and Delling

er at the home

of Sutton’s brother at approximately 7:00 p.m. on February 21, 1992. Weaver stated that Sut ton had take n his car to be exami ned by his brother and that Sutton had borrowed his brother’s truck because the radiator on Sutton’s Camaro

was broken. Weaver stated that she and both Appellants left at approximately 8:00 p.m. in a white pickup truck andwent

to Dellinger’s h

ome. Weaver state

d that Griffin had

not been with Appe

llants andthat Griffin’s trailer had definitely not been on fire when she and App ellants dove past i t. Weaver stated that Appellants left Dellinger’s residence at approximately 10:00

p.m. in order to get Griffin out of jail. Weaver stated that Appellants retur ned about midnight and there was nothing unusual about their dress at that time. Weaver testified that she

stayed wit

h Sut ton at Dellinger’s trailer on the night of February 21, 1992, and she left the next morni ng with L inda Dellinger to do some shopping. When she-8-

returned, Appellants were gone. Weaver st

ated that Appella

nts returned at a

pproximately 8 :00 p.m. that evening and she and Sutton stayed with the Dellingers on the night of F ebruary 22, 1992. Weaver testified that she had been to Griffin’s trailer on occasion and she had noticed that it was not clean and that wires had been “hanging around.” She also statedthat she had seen holes in the stovepipe and a burned place in the floor. She stated that she knew that Griffin was afraid of his brother James Griffin because James had often beaten him up. Tim Nichols, a volunteer fireman with the Sevierville Fire Department, testified that he was the head of the fire crew that answered a call for the fire at Griff in’s trailer

on F ebruary 21, 1992. Nichols testified that he had a conversation with Connie Branam that evening in which she stated that bad wiring might have caused the fire. Nichols stated that the trailer had been a total loss and that he did not call an arson investigator because he had no reason to suspect arson at that time. He also testified that he did not smell the odor of gasoline or any other chemical at the fire scene. Captain Larry Mc Mahan of the Sevier County Sheriff’s Department testified that he acted

as chief investigator in the Connie Branam case and that he assisted in theinvestigation of this case. McMahantestified that none of the ite ms gathered at the scene where Connie Branam’s body had been found, when tested, had resulted in fingerprints of Appellants being found. He also testified that dirtsamples taken from

the shoes of Appellants did not match samples of dirt taken from the scene where Branam’s body was found. On cross-examination, Captain McMahan testified that the shotgun that had fired the shells in this case

had never been r

ecovered. McMa

han also admitted th

at he did not test the

fingerprints of other potential su

spects such as Bi

ll Cogdill, Eddie Blair, or James Griffin for potential matches of prints taken from items found at the Connie Branam fire scene. He also stated that a partial tire track found at the Branam fire scene did not match the tracks of Dellinger’ s vehicle. Charles Currier, a resident of the area near where Griffin’s body was di sc overed, testified that it was not unusual to hear

gunshots around t

hat area beca

use people

often practiced shooting there. Katherine Turner, another resident of the area, corroborated his testimony

. William Dewitt was calle d by the def

ense as a fire-investigation expert and was qualified as such by the court. Dewitt testified that new scientific evidence revealed that irregular burn patterns

were not always indicative that an acceleran t had been us ed. Dewitt stated that if the presence of ignitedliqu ids is suspected, samples should always be taken. He further stated that the ty pe and quantity of combustible

materials found in automobiles today, when burned, can produce a degree of damage much like

that caused by

an acceleran

t. After being provided information about the fires of the trailer and the vehicle, Dewitt opined that the cause of the fi res should h ave been listed as “undetermined.” Robert Webb, Chief

Operations Manager for Tennessee for the EMS Division, testified that he received a ca

ll in February

of 1992 to investig

atea dead body that had been found on the banks of the Little River in Blount County. Webb testified that he assisted in loading the body , and it was his opinion that rigor mortis had set in at that time. Ne al Stone, a medic for the Rural Metro Ambulance Corporation, testifiedthat he also assisted in the recovery of the body of the victim and that it was his opinion that rigor mortis was present. Martha Blair testified that in February of 1992, she lived with her ex-husband, Eddie Blair. Ms. Blair stated that shortly after Griffin’s body was found, officers came to her home to speak

with Mr. Blair. She stated

that the officer

s s earched M r. Blair’s car thoroughly

and also found she

ll-9-

casings from a 12-gaug

e shotgun in

her yard. Ms. Blair stated that in February of 1992, Mr. Blair owneda 12-gauge shotgun and he took the gun wi th him e verywhere that he went. She stated, however, that the shotgun had mysteriously disa ppeared before the officers visited her home. Ms. Blair testified

that two unusual inc

idents occurred

about the time

that Griffin was killed that caused her

concern. First

, Mr. Blair came

home and threw his

clothes in the tras

h and told her that he was throwing them away because they were muddy. She stated that in the twenty years that she and Mr. Blair had lived together, she had never known him to throw away any muddy clothe

s. The second incident th

at concerned Ms . Blair

was that the next morning Mr. Blair took the trash out to his car, something he had never done before. Robert Whiteman, park ra

nger with the Great Smoky Mountains National Park, testified that he checked

into the records of the park service at the request of defense counsel, and in February of 1992, the park owned four w hite Dodge pickups. He further testified that rangers who drove two of the pickups might h

ave had occasio

n during that time

to be in the area where

the body of Co

nnie Branam had been found. Jack Sutton testified that in February of 1992, an individu

al by the nam

e of Bill Cogdill to

ld him two or t hree days before Connie Branam’s body was found that her body would either be found in water or a burned vehicle. Dr. Larry Wolfe, a phys

ician employ

ed by Mounta

in People’s Health

Council, testified that he had been provided with autopsy photographs of Griffin and he had opined that

Griffin died as a result of a single gunshot

wound to the back

of the neck. From the photographs, he estimated that the time of death was t

wenty-fou

r to thirty-six hours prior to the time the body was discovered. After reciting a list of factors he had considered in determining the time of death, he testified that the victim app eared to have been in a sta te of rigor morti

s and rigor morti

s is complete at twe

nty to twenty-two

hours after dea

th and dissipates a

t about that sa

me rate. D r. Wolfe also noted the presenceof postmortem goose bumps onGriffin’s body which would further indicate complete rigor mortis. Dr. Wolfe stated that he also considered the factors of lividity, mar

bling of the skin, r

edness of the blood, and stag

e of decomposition

of the organs in

making his deter

mination as to the time of death. He testified that

if Griffin’s body had

been lying out in temperatures reported during the sixty to sixty-six hour t

ime period suggested

by the State,

he would have expe

cted gross cha

nges in Griffin’s body that would have been readily apparent. Dr. Wolfe then testified about the drugs that had been prescribed for Connie Branam. Dr. Wolfe testif

ied that acc ording to reports, xanax, vicodin, and sinequan had been prescribed for Branam in the last week of

her life and s he had been hospitalized during that time for adjustment reaction, severe depression, suicidal gestures, and alcohol abuse. According to Dr. Wolfe, any individual who had been taki ng xanax and sinequa

n and been drinkin

g alcohol would

have behaved in an intoxicated state and wo uld have ex perienced extreme mood swings and disinhibition. He testified that if an individual had taken enough of the drugs, he or she might not respondto intense pain due to being in a c

omatose state. De

fense counsel the

n hypothesize

d that an individual

in such

a state might

be able to drive a car, wander into the woods, stop the car, light a cigarette, pass out, and then die of cardi

ac arrest, ren

al failure, or re

spiratory a

rrest. Dr. Wolfe r

esponded that thi s hypothetical was a possibility. On cross-e xamination, Dr. Wolfe admitted that he wa

s not board-cert

ified in forensic pathology and that when he w as the medical exa

miner in Union County

, all autopsies were1 Initially, we note that Appellants have failed to support the argument for thi s issue and for many subsequent issues with appro priate citations to the record . For instance , Appellan ts have com pletely failed to identify the part of the record that contains their motion f or separate juries, the part of t he record that contains any argument on the motion, and the part of t

he record that cont

ains the t

rial court ’s ruli

ng on the motion. Rule 27(g) of the Tennessee Rul es of Appellate Proced ure specifica lly states that “referenc e in the briefs to the record sha ll be to the page of the record involved.” Furth

er, Rul e 10(b) of

the Rules of t he Tennessee Court of Appea

ls sta tes th at “[i ]ssues which are

not supported by . . .

appropriate refe

rences to the r

ecord will be t

reated as waived by

this court.”

2 For example, the trial court rul ed that the State could no t introduce a sta tement by Dellinger in which he threatened

to “wipe out the whole hill” of Griffins because there was no evidence th

at Sutton had adopted

the statement.

-10- performed

elsewhere. He

also admitted that he hadnever spoken with the physician who conducted the autopsy on Griffin. In rebuttal, the state called Beve rly Sparks, custodian of rec ords for the Sevie

r County Sheriff’s Department,

to introduce into evidence two missing persons reports filed by Viola Griffin, the mother of Griffin

and Branam, on M

onday, Fe bruary 24,

1992. In the re

ports, Ms. Griffin

stated that she had not

seen or heard from Griffin since February 21, 1992, a t 11:45 p.m. and she had not seen or heard from Branam since February 22, 1992, at 1:00 p.m. Dr. Charles Harlan, forensic pathologist, was accepted as an expert witness by the court. Dr. Harlantestified that after

reading Dr. Ellington’s autopsy report for Griffin, it was his opinion that Griffin died between 6:00 p.m. on February 21, 1992, and 8:00 a.m. on Februar y 22, 1992. Dr. Harlanbased this opinion on the fact that dec

omposition of orga

ns was apparent o

n the microscopic examination. Dr. Harlan also testified that he had reviewed the testimony of Dr. Wolfe and he disagreed with many of the conclusions that Dr. Wolfe had made from viewing the evidence in the

case.

II. SEPARATE JURIES FOR EACH APPELLANT Appellants

contend that the tr

ia l cour t erred when it refused to grant their request for a separate jury

for each Appell

ant. 1 We disagree. The record indicates that in their motion for separate juries and during the hearing on the motion, Appellants argued that they were entitled to separate jur ies because App ellants would be prejudiced

when the trial cou

rt admitted eviden

ce that was admiss

ibleas to one Appellant

but was inadmissible

as to the other Appellant. However, when the trial court deniedthe motion, the court stated that it would not admi t any eviden

ce that was admiss

ible as t o one Appellant but was inadmissible

to the other Appel

lant. 2 Thus, the trial court found that there was “[no] reason that the State and both [Appellants] can’t have a fair trial before the same jury.” As support for their argument on this issue, Appellants have cited a few federal court cases in which separate juries were used. However, Appellants have failed to cite any author

ity that would require separate jurie

s in a case su

ch as thi s one. Indeed, the general rule is that the decision of whether to grant a motion for severa

nce is within

the discretion of the trial court and the trial court’s decision will not be reversed absent a showing of prejudice. See State v. Robinson , 971 S.W.2d 30,3 While these author ities appl

ied this r ule in the context of a moti on for separate t

rials, we see no reas

on why the rule should be any different in the context of a m otion for separate juries.

4 Initially, we note that a trial court does not have any discretion to grant a motion for separate j uries during the guilt and sentencing

phases of tri

al. Indeed, Tenness

ee l aw specifically requires that following a conviction for first degree murder, a “sentencing hearing sha ll be conducted as soon as pract icable before t

he same jury t

hat determined guilt.” Tenn. Code Ann. § 39-13-204(a) (1991).

5 We note that it is

well-settl

ed that a criminal defendant’s const itutional right

s are not violated by excusing prospective jurors for cause when the ir person al be liefs concernin g the death p enalty would prevent or substantially impair their perf

ormance as a j uror in accord ance with their ins tructions and their oath. See State v. Hutchison , 898 S.W.2d 161, 167 (Tenn. 1994 ) (citing Wainw right v. Witt , 469 U .S. 412, 4 24, 105 S.Ct. 844 , 852, 83 L.Ed.2 d 84 1 (1985)).

-11- 40 (Tenn. Crim. App. 1 997); State v. Ensley , 956 S.W.2d 502, 508 (Tenn. C rim. App. 1996). 3 In this case, Appellants have failed to meet their burden of showing that the t

rial court abuse

d its discretion. In fact, Appellants have failed to identify a sing le instance in which one Appellant was prejudiced

by the introduction of evidence that was only a dmissible against the other Appellant. In addition, Appellants have failed to identify any other way i

n which the trial c

ourt’s denial of th

eir motion prevented t

hem from having a

fair trial. This is sue has no merit.

III. SEPARATE JURI

ES DURING THE GUILT A ND SENTENCING PH

ASES Appellants

contend that the tr

ial court erred

when it denied their motion for

separate juries during the guilt and sentencing phases of trial. We disagree. 4 First, Appellants contendthat having the same jury during the guilt and sentencing phases is unconstitutional be

cause it deprive

d th e m of their right to

a fair trial. Spec

ifically, A

ppellants contendthat the current system is un fair bec ause the State’s ability to challenge jurors that have personal views against th

e death penalty 5 leads to a system where the jury is more l

ikely to conv

ict. However, the Tennessee Supre me Court has previo

usly considered and rejected this argument. See Statev. Harbison , 704 S.W.2d 314, 318–319 (Tenn. 1986) (rejecting the argument that

a defendant is entitled to separate juries during the guilt and sentencing phases of a capital trial i n order to guarantee a fair trial by a jur

y that repr

esented a cross s

ection of the comm

unity); State v. Zagorski
, 701 S.W.2d 808, 814–15 (T enn. 1985) (reje

cting the arg

ument that a defe

ndant is entitled to separate juries during the guilt and sentencing phases of a capital trial on the theory that a “death qualified” jury is skewed toward a finding of guilt in contravention of the right to a fair and impartial jury composedof a cross-section of the community

); see also State v. Hall , 958 S.W.2d 679, 717 (Tenn. 1997) (rejecting the argument that the manner of selecting “dea

th qualified” juro

rs results in juries that are pron e to conviction); State v. Teel , 793 S.W.2d 236, 246 (Tenn. 1990) (rejecting the argument that the process of “death qualifying” prospective jurors produces a

jury that is bi

ased in favor of the State on the issue of guilt or innocence and i s not fairly representative of the community). Second, Appellants contend that having the same jury during the guilt and sentencing phases is unconstitutional be

cause it violates t

he constitutional r

ight to be tried by

an imparti a l ju ry. Ess ent ial ly, Appellants conte nd that it is impossible for a jury that has convicted a defendant of f

irstdegree murder to

be impartial whenit decides whethe r to impose a death

sentence on that d

efendant.6 At the ti me of the h

omicides Tenn

essee Code

Annotated section 39 -13-204 provided , in relevant part, that t he jury shall impose a sentence o f death if it fin ds that the State has proven bey ond a reasonable doubt th at the aggravating circumstances outweigh the mitigat ing circumstances. Tenn. Code Ann. § 39-13-204(g)(1) (1991).

-12- However, Appellants have failed to cite any authority or

anything in

the record in supp

ort of this proposition. We cannot agree that the mere fact that a jury has convicted a defendant of first degr ee murder automatically renders that jury incapable of impartially deciding whether to impose a death sentence. This iss

ue has no merit.

IV. CONSTITUTIONALITY OF THE DEATH PENALTY Appellants

contend that the trial court erred when it failed to declar

e that Tennessee ’s death penalty statutes and procedures are unconstitutional. We disagree. Firs t, Appe llants contend that Tennessee’s death penalty statutes and procedures a re unconstitutional because the jury is required to impose a death sent ence if it finds that the aggravating circum stances outweigh the mitigating circumstances and thus, the jury ha s no di scretion when it decides whether to impose a deat h sentence. 6 This argument has previously been considered

and specifically rejected by the Tennessee Supreme Court. See State v. Smith , 857 S .W.2 d 1, 22 (Tenn. 1993) (holding that Tennessee’s death penalty statutes “do[] not in any way

co nstitutionally

deprive the sentencer of the discretion mandated by the individualized sentenc e requirements of the constitution”). Second, Appellants contend that Tennessee’s death penalty statutes and proce dures are

unco nstitutional because imposition of the death penalty is cruel and unusual punishment. Th i s argument has also been considered and specifically rejected by the Tennessee Supreme Court. See Statev. Black , 815 S.W.2d 166, 187–91 (Tenn. 1991) (h oldi ng that the death penalty is not unconstitutional per se as cruel and unusual punishment). Third, Appellants contend that Ten nessee’s death penalty statutes and procedures are unconstit uti onal because the Tennessee legislature has concluded that juries are incapa ble of rendering fair and just ver dicts. In addition to the fact that this argument makes no mention of either the federal or

the state constitut

ions, this argume

nt is also inaccurate. Appellants’ argument ignores the fact that the Ten

nessee Leg

islature has expre

ssly and spec

ifically re quired that the jur

y impose the sentence in capital cases. See Tenn. Code Ann. § 39-13-204(a) ( 1991). Contrary to Appellants’ assertions,it is clear that in enacting this statutory scheme, the legislature has manifested a belief that juries are capable of rendering fair and just verdicts in capital cases. Fourth, Appellants contend that Tennessee’s death penalty statutes and pro cedu res are unconstituti o nal because the immediate sentencing of a capital defendant after pronounce ment of the verdict does not afford the capital defendan t the same rig

hts as other defendants who are sentenced by the trial court during a separate sentencing hearing. Specifically , Appellants contend that this sentencing procedure violates the constitutional right of capital defendants to equal protection. Appellants have cited no authority in support of this proposition and we reject it. Equal protection requires that all persons who are s

imilarly situa

ted must be treated alike. See State ex rel. Stewart v. McWherter , 8 57 S.W.2d 875, 876 (Tenn. Crim. App. 1992). It is obvious that capital7 We note that even if we were to fi

nd that princi

ples of equal prot

ection were appli

cable, we would still find that requiring ca pital defend ants to be sen tenced imm ediately b y a jury does n ot violate the right t o equal protection. When no suspect clas s and no fundamental right is involved, a cl

assification by t

he State is valid if som e reasona ble basis

can be found f

or the cl assif icati on, or if any sta te of f acts may reasonabl

y be conceived to justify it. See State v. Tester
, 879 S.W.2d 823, 828–2 9 (Tenn . 1994). C apital defend ants are not a suspect class for equal protecti on analysis and there is no fundam ental r ig ht to be sente nced by a judge in a separate senten cing hearing.

In addition,

requiring capi

tal defendan ts to be sentenced immediately by a juryis neith er arbitrary nor unreasonable. Thus, the sentenci ng procedure for capital defendants does not violate t he right to equal protection.

-13- defendants

and defendants i

n all other cases are

not similarly situated and thus, principles of equal protection are simply not implicated here. 7 Fifth, Appellants conten d that Tennessee’s death penalty statutes and procedures ar e unconstitutional because the stat utes do not narrow

the class of deat

h eligible defe

ndants. As support for this proposition, Appellants cite State v. Middlebrooks , in which the TennesseeSupreme Court held that when a defendant is convicted of first-degree murder

solely on the basis of felony-murder, the felony-murder aggravating circumstance does not narrow the class of death eligible murderers sufficiently

to satisfy the

federal and sta

te constitutions . 840 S.W.2d 317, 346 (Tenn. 1992). However, in this

case, Appellant

s were charge

d and convicted of

deliberate

and premeditate

d first degree murder, not felony murder. Further, the State sought imposition of the death penalty based

on Appellants’ prior convictions for felonies involving violence to the person and not on the felony murder aggravating circumstance. Thus, Middlebrooks is inapplicable to this case. Fin all y, Appellants contend that Tennessee’s death penalty statutes and procedures provide for constitutionally inadequate appellate review because the statutes do not require the jury to issue

a finding as t o what miti gating circum stances were found and why the agg ravating circumstances
outw eig hedthe mitigating circumstances. This argument has previously bee n considered and specifically

rejected by the Tennessee Supreme Court. See State v. Brimmer , 876 S.W.2d 75, 87 (Tenn. 1994) (rejecting the argument that there is no meanin

gful appellate

review of death sentences because th ere is no requirement for written findings concerning mitigating circumstan ces). This issu e has no merit.

V. VENUE Appellants

contend that the tri al court erred when it denied their request for a change of venue. We disagree. “In all criminal prosecutions the venue may be changed upon motion of the defendant . . . if it appears to the court that, due to undue excitement against the defendant

in the county where the offense was committed or any other cause, a fair trial probably could not be had.” Tenn. R.

Crim. P. 21(a). However, “[t]he mere fact that jurors have been exposed to pre-trial publicity will not
warrant a change of venue.” State v. Man n , 959 S.W .2d 503, 532 (Tenn. 1997). “The matter of change of venue addresses itself to t he sound di scretion o f the trial court, and a denial of a c hange of venue will only be reversed on appeal for an affirmative and clear abuse of discretion.” State v. Vann
, 976 S.W.2d 93, 114 (Tenn. 1998). In addition, “[b]efore an accused is entitled to a reversal of his conviction on the ground that the trial judge erroneously denied hi s motion for a change of
venue, he must demonstrate . . . that the juror s who actua lly sat were biased and/or prejudiced.” Mann , 959 S.W.2d at 532 (citation and internal quotations omitted).8 This arti cle is not in t

he record.

9 Initially, we note that b ecause the re cord on ly contains pa rts of the voir dire , our review is lim ited.

-14- On January 6, 199 6, Appella nts filed a motion for change of venue in which they referred to an article in that

day’s editi

on of the Daily

Times. 8 Although the trial court’s order of January 31, 1996, which denied the motion states that the court heard testimony from witnesses and argument from coun sel, the record does not contain a transcript of this hearing. However, the record doe s contain two volumes of excerpts fro m the voir dire that was conducted in this case. A review of these excerpts indicates that the trial court carefully and meticulously orchestrated the jury selection process to ensurethe selection of an impartial jury. The trial court conducted individual voir dire of the potential jurors in order to determine whether they had heard any thing about the facts of

this

case and the Connie Branam case that would interfere with their impartiality. The trial court then gavecounsel for the State and the defense the opportunity to ask further questions. The trial cour t then excused any potential jurors who indicated that they would ha ve difficulty being impartial. In this case, Appellants have failed to specifically identify any pretrial publicity that

would suggest that there was any “undue excitement against [them]” in Blount County or any other reason why a fair trial could not be had in Blount County. Moreover, Appellants have failed to i den tif y a single juror who was allegedly biasedl. Quite simply, Appellants have failed to meet their burden of showing that

any of the jurors who sat d

uring trial wer

e actually biased or prejudi

ced against the

m. This issue has no mer

it.

VI. VOIR DIRE Appellants

contend that the trial court erred when it limited the amount of questions that could be asked during voir dire. We disagree. 9 “The ultimate goal of v

oir dire is to

insure that jurors are c

ompetent, unbiase

d and impartial, andthe decision of how to conduct voir dire of prospective jurors rests within the sound discretion of the trial court.” State v. Stephenson , 878 S.W.2d 530, 540 (Tenn. 1994). The record indicates that after five and one half days of voir dire, the trial court

decided that the process was taking too long. The trial court therefore deci ded that it would conduct the individu al voir dire of the potential jurors and it would then give counsel for the State and th e defense the opportunity

to question the pote

ntial jurors about a

ny am biguous answers. The trial
court then conducted individual voir dire and defense counselwas allowed to question the potential jur ors abo ut p ret ria l pu bli cit y and abo ut t hei r vi ews on t he d eat h pe nal ty. Appellants’ only allegation as t o how they were prejudiced by the trial court’s method of conducting voir dire is the vague statemen t that “they

could not get a

feel of the true feeling of the jurors concerning the

death penalty

.” Indeed, A

ppellants have fa

iled to indicate an

ything they

could

or would have done differently if the trial court had conducted voir dire diff erently. In addi tion, Appel lants ha ve failed to identify a single instance in which they were prevented from asking questions of

a potential juror. Further, Appellants have not even argued that any of the jurors who

were actually selected through this method of voir dire were biased or prejudiced. Indeed, the partial excerptsthat are contained in the record indicate that the trial court excused jurors who indicated that they would be

unable to be impartial. Under these circumstances, we conclude that the trial court-15-

didnot abuse its discretion when it conducted voir dire in the manner that it did. This issue has no merit.

VII. JURY SELECTION EXPERT Appellants

contend that the trial court erred when it revoked its authorization for funds to pay for a jury selection expert. We find no error here. The record indicate

s that on March 7, 1 994, the trial court granted Appellants’ request for funds to pay for a jury selection expert. Appellants then had the assistance of jury selection expert Margie Fargo during the init ial jury selection that began on January 22, 1996. Although it is not clear from the record, the t

rial court appar

ently did not empanel this jury because the jury pool wa s too small. Subsequently, during an ex parte hearing on June 18, 1996, th e trial court rev

oked its authorization of funds to pay for a jury s

election expert. T

he trial court re

asoned that beca

use defens e c ounsel had spent a pproximately o

ne and one-half

weeks working w

ith Fargo durin

g the first jury selection process, defense counsel had acquired the knowledge that was necessary

to effectively select a jury. Thus, the trial court ruled that continued employme nt of a jury selection expert was not necessary to ensure that Appellants received a fa ir trial. During an ex parte hearing on July 29, 1996, Appellants asked the trial court to reconsider its denial of funds for a jury selection expert. Appellants argued that a jury selection expert was

necess ary in eve ry capital

case and in additi

on, a jury se

lection expert was

needed in this cas

e because defense counsel had never selected a “death qualified” jury before. The trial court ruled that Appellants’ right to a fair tr ial would not be viola

ted by discon

tin uing the j ury selection expert services. The trialcourt stated that because defense counsel had already been ins tructed by Fargo about how to select a

jury and because three

of the defense a

ttorneys ha

d over twenty

years of a lmost exclusive trial exper ience , defe nse co unsel would be abl e to co mpete ntly se lect a jury. In addition, the trial court noted t

hat Appellants ha

d a right to have

a ju ry that would apply the law fairly and imp art ial ly, but A ppellants did not have the rig ht to have a jury

that would never i

mpose a death
sentence. Tennessee Code Annotated se ction 40-14-207 pr

ovides, in relevant part, that when a capital defendant has been found to b

e indigent,

the trial c ourt “may in its discretion determine that investigative or expert services or ot her si milar services are necessary to ensure that the constitutional rights of the defend ant are pro perly protected.” Tenn. Code Ann. § 40-14-207(b) (1990). “Absent an abuse of discretion, the trial court’s ruling on the necessity for an expert will be upheld.” Ruff v. State

, 978 S.W.2d 95, 1 01 (Tenn. 1998). In add ition, the Tennesse

e Supreme Court has expressly stated that a trial court may deny a defendant the assistance of a jury selection expertwhen the defend

ant has failed to d

emonstrate a par

ticularized need

for the expert ser

vices. Mann , 959 S.W.2d at 526; Black , 815 S.W.2d at 180. In this case, Appellant

s have failed to establish that they had a “particularized need” for the continueduse of the jury

selection expert.

Essentiall

y, Appellant s argue that because none of the defense attorneys had ever selected a “d eat h qualified” jury

before, they

were incapable

of effectively10 Appellan ts also contend that they were entit led to a jury selection expert because a jury selection expert is
necessary for an effe

ctive defense in every capi tal case. However, this concluso ry statement is insufficient to establish a “particul

arized need” for a j ury select ion expert in this case.

11 The record indicates that Fargo was paid $ 11,120.00 for these services.

12 We note that in the arg ument for this issue,

Appellants also make the conclusory allegati ons that the revocati on of funds for continued employment of Fargo violated: their right to due process, their ri ght to equal protection, their right

to effective assistan ce of coun sel, and their righ t to compu lsory proce ss of witnesses. Howev er, Appe llants have failed to supp ort these allega tions with any arg ument othe r than vague c itati on s to authorities that stand for the general proposition tha t criminal defendants have constitutional r ights to due process, equal protection, eff ective assistanc e of counsel, and compulso ry process. Thus, Appell ants hav e waived t

hese argu

ments. Tenn. Ct. Cr

im. App. R. 10(b).

13 Tennessee Code Annotate d section 39-13-203 prohi

bits i mpositi on of a death se

ntence on a

ny defenda

nt who,
at the time of the offens e, h ad an IQ level of

70 or less , had defi

cits i n adaptiv

e behavior, and had ment al reta rdation manifested during the developmental period or by age eighteen. Tenn. Code Ann. § 39-13-203(a)–(b) (1991).

-16- selecting a jury in this

case without cont

inued employ

ment of the jury

selection expert. 10 The mere fact that defense counsel had never selected a jury in a c apital cas e before, st

anding alone, is insufficient

to establish a “particularized need” for thecontinued services of a jury selection expert in this case. Indeed, as noted by the trial court, tw

o of the defense

attorneys h

ad worked closel

y with Fargo for one and one ha lf weeks durin

g the p revious jury

selection proce

ss. 11 Further, defe

nse

coun sel stated at the hearing that Fargo had already collected information from Appellants and defense counsel and had pr

epared two pag

es of questions for

defense counse

l to ask the potential jurors. Under these circumstances, we conclude that the trial court did not abuse its discretion when it revoked the fun

ds for continued e

mployment of

Fargo. This issu

e is without merit. 12

VIII. INTELLIGENCE QUOTIENT TESTING Appellants

contend that the tr

ial court erred

when it failed to or

der th at an int elligence quotient (“IQ”) test be administered to Appellants while they were under the influen

ce of alcohol. We disagree. On July 27, 1995, Appellants filed a motion asking the court to order that they be tested for IQ while they were under the influ ence of alcohol. At the hearing on the motion on January 30, 1996, Appellants arg

ued that their

consumption of

alcohol shortly before the time that Griffin was killed may have lowered their IQ level below 70, wh ich would have re

ndered them statu

torily ineligible for the deat h pe nal ty. 13 However, Appellants argue on appeal that t heir IQ level while they were intoxicated was relevant to the elements of intent and premeditation. Dr. Peter Young testified for the defense that ac

cording to the results of IQ testing, Dellinger hadan IQ level of

72 inMarch of 1995 and Sutton had an IQ level of 76 in November of 1993. Dr. Young then opined that Ap pellants’ use of a

lcohol could have

reduced their

IQ level to

below 70 at the time that Griffin was killed. On cross-examination, Dr. Young admitted that the authorities upon which he based his opinio n actually c

ontradicted his

opinio n. Dr. Young also admitted that there

was no recognized st

atistical data

that c ould b e used to adj ust Ap pella nts’ IQ levels while they were functioning in an intoxicated state.14 The United Sta tes Const

ituti on guarant

ees “[t ]he rig ht of t he people t

o be secure in their persons, houses,
papers, and effect s, against unreasonable sear

ches and seizure s . . . . ” U.S. Const. amend. IV. The Tennessee Constit ution similarly provid es “[t]hat the pe ople shall be secure in their persons, houses, papers a nd possessions, from

unreasona

ble searc hes and sei

zures . . . .” Tenn. Const . art I , § 7.

-17- Dr. Eugene Cord testified for the State that t

he results of an I

Q test would be inva

lidif the
test had beengiven to

an intoxicated per

son. Dr. Cord also te

stified that while i

ntoxication would im pair performance, it would not affect IQ level. Dr. Cord testified that he was unaw are of an y statistical data that could be used to adjust an individual’s IQ level while in an intoxicated state. At the conclus ion of the h earing, the trial court found that there was no proof that alcohol use hadany effe ct on IQ level. The trial court also found that it would be useless to test Appellants for IQ level while

they were intoxicated because there was no recog nized test for doing so. Moreover, the trial court found that Appellants had also failed to prove that they had defici ts in adap tive behavior or that

they had mental retardation that was manifested during the developmental period or by age eighteen. We conclude that th

e evidence in the

record does not p

reponderate

against thetrial court’s findings that alcohol use

does not effect IQ level

and that there is no recognized test for determining the IQ level of an i ntoxicated person. Thus, testing Appellants for IQ level while they we re intoxicated would have been an exercise in

futility. In addition, the trial court’s refusal to order the IQ tests did not preve

nt Appellants

from showing that they did not have the required mental state for first degree murder becaus e they were intoxicated at the ti

me of the offense. Indeed, the re was a great deal of evidence that Appellants had bee n drinking shortly before Griffin was killed and the trial court instructed the jury that “[i]f you find that [Appellants] were intoxicated to the extent that they could not have possessed the required culpable mental state, then they cannot be guilty of the offense charged.” In short, the tri al court did not err when it refused to order that Appellants be tested for IQ

levels while they

were intoxicated.

This issue has no mer

it.

IX. ADMISSION OF EVIDENCE SEIZED PURSUANT TO A SEARCH WARRANT Appellant Dellinger contends that the trial court erred when it failed t o s uppress evidence that was seized from his

residence and th

e surrounding a

rea pursuant to a

search warra

nt. On February 28, 1992, Detective Widener obtained a search warrant for Dellinger’s

res ide nce, out bui ldi ngs, and lan d. La ter tha t sa me d ay, Widener andsome other officers searched Dellinger’s property. D

uring the se

a rch, the office

rs discovered an

d seized numerous sh

otgun shells, several shells form other weapons, a .303 rifle, and a Mossberg shotgun barrel. Dellinger contends that these items were

inadmissible evide

nce because

the search of

his property was invalid under the Fourth Amendment to the United States Constitution and Artic le I, Section 7 of the Tennessee Constitution. 14

A. Validity of the Search Warrant on its Face Dellinger contends that the search warrant is void on its face because the supp

orting affidav

it does not create a nexus between his property and the murder of Gr iffin. We disagree. An affidavit which e

stablishes probab

le cause is an indi

spensable prere

quisite to the issu

ance of a search warrant. See

Tenn. Code. Ann. § 40- 6-103 (1997 ); Tenn. R. Crim. P. 41(c). “An15 We note tha t “[o]n ly the probabili

ty and not

a prima f

acie showi

ng of cri minal act

ivity is the standar d of probable cause.” State v. Do well , 705 S.W.2d 138 , 140 (Tenn. Crim. App. 1985).

-18- affidavit in support of a sea

rch warrant must set f

orth facts from which a reasonable conclusion might be drawn th

at the evidence i

s in the place to be searched.” State v. Smith , 868 S.W.2d 561, 572 (Tenn. 1993). “The nexus between the place to be searched and the items to be seized may be establishedby the

type of crime, the nature of the items, and the normal inference s where a criminal would hide the evidence.” Id. The affidavit provide by Detective W idener in support of the sea rch warrant in th

is case provides: Affiant

. . . has good grou nd and belief, an

d does believe tha

t James A. Dellinge

r is in possession of . . . [o]ne 12 gauge shotgun, make and model unknown, and 1 2 gauge “00” shotgun shells, Remington Peters Brand.

. . . . [A]ffianthas information to sh ow that at approxima tely 7:11 p.m., 21 Fe bruary 1992
, Tommy Griffin was involved in a fight with James Dellinger and G ary Sutton. T

ommy Griffin was arrested at Blount County and booked at approximately 7:35 p.m. At approximately

9:30 p.m. this same ni

ght, Tommy G

riffin’s mobile ho

me locatedin the same proximity as that of James Dellinger’s home burned to the ground. At 11:25 p.m. this night of 21 February 1992, at the Blount County Jail, James Dellinger a nd Gary Sutton showed up andmade bail for Tommy Griffin, who was last seen alive leaving the Blount County Jail at 11:25 p.m. on 21 February 1992, with Dellinger and Sutton. Affiant has further information
to show that at 11:55 p.m. Tommy Gr iffin was shot dea

d with a 12 gauge sho

tgun; one blast striking him inthe back of the head—that blast being “00”buckshot; and two spen t 12 gauge “00” buckshot hulls, Remington Peters Brand, were found near the body

.

We conclude that th

is affidavit is suff

icient on its face

to establish

that there was pr

obable

cause to believe that the twelve gauge shotgun that was used to kill Griffin, as well as some shotgun shells, would be found at

Dellinger’s residence. The affidavit states that Dellinger had been in an altercationwith Griffin a few hours before Griffin was killed, that Griffin was last seen alive when Dellinger bailed him out of jai

l thirty minute

s before he was k

illed, and that G

riffi n was killed by

a shot from a twelve gauge shotgun. This information establishes probable cause to be liev e that Dellinger partic ipated in

the murder of Griffin. 15 In addition, it i s reasonable to c

onclude that a shotgun is an item that would be kept at the owner’s residence. Indeed, as noted by the Tennessee Supreme Court in Smith

, Where the object of the s

earch is a weapon used in the crime or clothing worn at the time of the crime, the infer

ence that the ite

ms are at t

he off ender’s reside

nce is especiall

y compellin g, at least in those ca ses where the pe

rpetrator is

unaware that

the victim has been able to identify him to the police. Other instrumentalit ies are also likely to be in the offender’s home, especially when there is reason to believe he would make use of them there.

868 S.W.2d at 572. Thus, we conclude that the affidavit does establish a nexus between Dellinger’s property a

nd the items sought

pursuant to the wa

rrant. This issue h

as no merit.16 Dellinger also contends that W idener’s affidavit contains false statements about the source of

the inf ormation that prevented the magistrate fro m judging th e credibility of the source

. Despite Delling er’s content

ion, it is clear that Widener made no representati on that he had personally observed any of the events lis ted in the affidavit

. In addition, it is clear that the i

nformation contained in theaffidavi t, by it s very natur

e, is inf ormation t

hat was pr

ovided eit

her by other police officer s or by citizen w itnesses and n ot from a crim inal i nformant or tipster from “the criminal milieu.” Thus, the informatio n is presume d to be reliab le. See State v. Stevens , 989 S.W.2d 290, 293 (Tenn. 1999) (citing State v. Melson , 638 S.W.2d 342 , 354 (Tenn. 1982)).

-19- B. Truthfulness of the Affidav it

Dellinger contends that the s

earch warran

t is invalid

because it

contains false statements and misrepresentati

ons. Specifically, Dellinger contends that the statement in the affid avit that “at approximately

7:11 p.m., 21 February 1992, Tommy Griffin wa s involved in a fight with James Dellinger and Gary Sutton” is false and misleading. We disagr ee. T he Tennessee Supreme Court ha s set forth two circumstances which authorize impeachment of a facially

valid search wa

rrant affidavit

: (1) when “a fa

lse statement [is] mad

e with intent to deceive the Court, whether material or immate

rial tothe issue of probable cause, and (2) [when] a false statement, essential to the establishment of probable cause, [is] reckles sly mad e.” State v. Little
, 560 S.W.2 d 403, 407 (T enn. 1978). The tr ial court conclud

ed that neither of

these circumstances was present and r ather, the state

ments in the affida

vit were merely

reasonable conclusions based on information that Officer Wide ner possessed at the time. We agree with the trial court. During t h e hearing on this issue, Widener testified that he had not seen the altercation between Appellants and Griffin and that none of the witnesses who had seen the a ltercation could identify Appellants. However, Widener testified that he had rece

ived statements

from the bartenders
at Howie’s Hideaway in which they stated that Appellants and Griffin h ad left t he bar in a dark Camaro at approximately 7:00 p.m. Widener also testified that he had statements fr

om Mr. and Mrs. Walker in which they stated that they had seen a fight while they were on the Alcoa Highway at 7:10 p.m. in which the y saw two men attempting to pull a third man out of a dark-colored Camaro. Widener further testified that he h

ad statements fro

m Mr. and Mrs. Davi

s in which they related how they had seena shirtless

man staggering around by the Alcoa Highway sometime after 7:00 p.m. and they had subsequently seen a dark-colored Camaro and a man who appeared to looking for something in the same area . Widener also testi

fied that he had r

eceived stateme

nts fro m Alcoa police officers in which they related that they had

found Griffin in this area at approximately 7:15 p.m. and that Griffin was bruised and he told them that he had been in a fight with some friends. We agree with the trial court that Widener’s statement in the affidavit that he had received information that Griffin was involved in a fight wi th Appellants at approximately 7:11 p.m., on February 21, 1992, was not

a false statemen

t that was made with

intent to deceive

the court or a fa

lse
statement that was made rec

kless ly. Rather, as the tri al court stated, it

was merely

a reasonable conclusion based

on the information

that Widener had a

t the time. This issue

has no merit. 16

C. Compliance with Rule 41(c) of the Tennessee Rules of Criminal Procedure-20-

Dellinger contends that the s

earch warran

t is invalid

because execution of the warrant failed to comply with Rule 41(c) of the Tennessee Rules of Criminal Procedure. We disagree

.

Rule 41(c) provid

es: A warrant shall issue only on an affidavit or affidavits sworn t o befo re the magistrate and establishing the grounds of issuing the warrant. . . . The magistrate shall prepare an original andtwo exact copies of the search warrant, one of which shall be kept by the magistrate as

a part of his or her

official recor

ds, and one of which

shall be left with person or persons on whom the search warrant is served. . . . Failure . . . of the serving officer where possible to leave a copy with the person or persons on whom the search warrant is being served,shall make any search conducted under said search wa rrant an illegal search and any seizure thereunder an illegal seizure. Tenn. R. Crim. P. 41(c). First, Dellinger contends that the search of his property was invalid because Widener failed to leave a copy of

the warrant with

the person on whom it was served. Although Linda Dellinger, who was at home during the execution of the war rant, denied that Widener had left a copy of the
warrant with her, Widener expressly testified that he did leave a copy of the w arrant with her. Although the trial court made no express finding on this issue, the trial court’s ruling upholding the validity of the search ne

cessarily implies that the court found that Widener did leave a copy of the warrant wit h Linda Delli nger. The reco rd does not preponderat e against th at finding. Second, Dellinger contends that the search of his property was invalid bec a use Widener failedto note on the officer ’s return t hat he had left a copy of the warrant with L inda Dellinger. However, nothing in Rule 41( c) requires this;

the rule only

requires that a

copy of the warrant be left with the person on whom it was served. Third, Delling er cont ends that the search of his property was invalid because the war rant does
notindicate the time a

t which it was issued. However, the warrant expressly states that it was issued at 2:25 p.m. on Febr

uary 28, 199

2, by Judge Ch

arles S. Sexton. This is sue has no merit.

D. Compliance with Tennessee Code Annotated Section 40-6-104 Dellinger contends that the s

earch warran

t is invalid

because the supportingaffidavit does not comply with the requirements of Tennessee Code Annotated section 40-6-104. We disagr ee. Tennessee Code Annotated section 40-6-104 states that The magistrate, before issuing the warrant, shall examine onoath the complainant

and any witness he may produce , and take t heir affidavits in writing, and cause them to be subscribed by the persons making them. The affida

vits must setforth facts tend ing to establish the gro unds of the application, or probable cause for believing that they exist.

Tenn. Code Ann. § 40-6-104 (1990). Dellinger contends that the affidavit supporting the warrant is invalid because it contains no indication that it was subscribed and sworn before the warrant was issued. Although the affidavit does not indicate what it time it was subscr ibed a nd sworn to, the17 Dellinger also challe

nges the manner in which the warrant was returned to the issui ng magistrate. However,

as previously n

oted by this Court

, “[an] improper return cannot negate the val idity of an otherwise lega l search.” State v. Robinson , 622 S.W.2d 62, 75 (Tenn. Crim. App. 1980).

-21- affidavit states that it

was “[s]worn and subscribed before [Judge Charles S. Sexton] this 28 day of Febr uary, 1992.” In addition, th e warrant expre

ssly states th

at “[p]roof by

[a]ffidavit

having been made before [Judge Charles S. Sexton] by Detective Jim Widener.” This clearly indicates that the affidavit was subscribed and swor n to before the wa

rrant was issued.

This issue has no mer

it.

E. Execution of the Warrant in Sevier County by Officers from Blount County D ellinger contends that eve

n if the search w

arrant was valid

, the search of h

is property

in Sevier County was illegal bec

ause it was conducted by officers from Blount County. We disagree. D etective Widener of the Blount County Sheriff’s Depar tment testified that when he executed the search warrant for Dellinger’s property, he was accompanied by Captain McMahan of theSevier County Sheriff’s Department and ap proximately three other officers from the Sevier County Sheriff’ s Department. Widener also testified that he witnessed Dellinger’s step-daughter, Angela Gray , give consent to search the trailer in which she resided on Dellinger’s property

. Dellinger contends that because Rule 41(c) o f the Tennessee Rules of Criminal Procedure requires that a search warrant be “directed to and served by the sheriff

or any deputy sheriff of the county wherein issued, any const able, or any other peace officer with authority in the county,” Widener had no authority as a Bl ou nt C oun ty of fic er t o ex ecut e a wa rran t in Sev ier Cou nty. However, in Smith ,, the Tennessee Supreme Court upheld a search that was conducted in Robertson County by a Me tropolit an Nashville police officer who was accompanied by an of ficer from the Robertson County Sheriff’s Department. 868 S.W.2d at 572-73. The supreme court stated that the Metropolitan Nashville police officer’s “participation in procuring the warrant

and executing it d[id] not invalidate the warrant.” Id. at 573. In addition, the Tennessee Supreme Court held in State v. Pigford
, 5 72 S.W.2 d 921 (Tenn. 1978), that the issuance of a warrant to a federal officer and the participation of the federal officer in the execution of

the warrant did n

ot invalidate the w

arrant so long as it met all

statutory requirements. Id. at 922. Thus, we conclude that because Widener was accompanied

by Captain McMahan when he executed the warrant for Dellinger’s property and the warrant met all statutory requirements, the execution of the search warr ant was valid. 17 Dellinger also contends that

Gray’s co

nsent to search th

e trailer in which she was living was invalid merely because it was given to an officer f rom the Blount County Sheriff’s Dep artme nt. Dellinger has cited no authority for this proposition, and we conclude that the fact that the consent

was given to officers from Bloun t Cou nty is completely irrelevant in this case. This issue has no merit.

F. The Items Seized in the Search18 We note that in the arg ument sectio n for this subissue , Dellinger d oes not spe cifically challeng e the

admissibility of any other ev idence seized during the search. Thus, we do not address the propriety of the seizure of the other items tha t were not exp ressly identified in the warrant.

-22- Dellinger contends that because the warrant only authorized a search f or a t welve gauge shotgun and Remin gton Pete rs Brand twelve gauge “00” shotgun shells, the seizure of all other brands of shotgun shells was invalid. 18 We disagree. As this Court has previously stated, “[t]here is no prohibition against the seizure of other property not specifically mentioned in a valid search warrant, if such is releva nt to the crimes suggested by the warrant .” State v. W right , 618 S.W.2d 310, 318 (T enn. Crim. App. 1981 ); see Vermilye v.

State
, 584 S.W.2d 226, 230 (Tenn. Crim. App. 1979). Because Griffin was killed by

a shot from a twelve gauge shotgun, it is obvious that all twelve gauge shotgun shells and hulls were relevant to the crime, no matter what brand they were . Thus, the officers pr operly seize

d the shells and hulls. This issue has no merit.

X. EVIDENCE OF OTHER CRIMES Appellants

contend that the trial court erred when it admitted evidence about the altercation that occurred on the Alcoa Highway, the burning of Griffin’s trailer, and the murder of Br anam. Spe cif ica lly, Appellants contend that this evidence was inadmissible beca useits only purpose was
to show that they had

violent character traits and even if it had been relevant to some other purpose, its probative value was outweighed by its prejudicial effect. We disag ree. Under Rule 404(b) of the Tennessee Rules of Evidence: Evidence of other crimes, wrongs, or acts

is not admissible to

prove the character of a person in order to sho w acti on in c onfor mity wi th th e char acter trait . It may, howeve r, be admissible for other purpose

s. The conditions which must be satisfied before allowing such evidence

are: (1) The court upon request must hold a hearing outside the jury’s prese nce; (2) The court must dete rmine that a mater

ial issue exists other tha n conduct conforming with a character trait and must upon request state on the record the material issue, the ruling, and the reasons for admitting the evidence; and (3) The court

must exclude the evi

dence if its

probative value is outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). A fourth prerequisite to admission is that the court find by clear and convincing evidence that the defendant committed the other

crime. Tenn. R.Evid. 404 (Advisory Commission Comments); State v. DuBose , 953 S.W.2d 649, 654 (T

enn. 1997); State v. Parton , 694 S.W.2d 299 , 303 (Ten n. 1985). When a trial court substantially complies with the procedural requirements

of the rule, its de

termination wil

l not be overturned absent an abuse of discretion.19 Although it is not clear, Appellants apparently do no t challenge the trial court’s compliance with the

p rocedural as pects of Rule 404(b) and i nstead, they

only chall

enge the tri

al court’s

conclusion th

at the evidenc

e was relevant to issues

other than Appellants’ characters and that the probative

value of the evi dence was not

outweig hed by danger of unfair preju dice. Thus, we do not address the trial cour t’s complian

ce with Rule 404(b)’ s procedural requirements. Indeed, althoug h the record indi

cates that the trial court c onducted a hearing on this issue, the recor d only contains a brief excerpt of the hearing. Therefore, we would be precluded from reviewing the trial cour t’s complian

ce with the proced ural requirem ents even if Ap pellants had challenged it. It is the duty of the party seeki

ng appellate re

view
to p repare a record which conveys a fair, ac

curate and complete a

ccount of what t

ranspired wit

h respect to t

he issues raised by the party. State v. Ballard , 855 S. W.2d 557, 56 0–61 (T enn. 199 3); State v. Rob erts , 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). When the record i s incomplete, and does not contain a transcript of the proceedings relevant
to an issue pres ented for revi ew, this Court is pre cluded fro m conside ring the issue. State v. Matthew s , 805 S.W.2d 776, 784 (Tenn. Crim. App. 1990 ).

-23- DuBose
, 953 S.W.2d at 652. Where a court fa ils to substantially

comply with th

ese requiremen

ts, the court’s decision is afforded no deference. Id. 19

A. The Altercation on the Alcoa Highway and the Burning of Griffin’s Trailer The trial court ruled that evidence about the altercation o n the Alcoa Highway and the burning of Griffin’s tra

iler was releva

nt to establishing

th e sequence of events on the night of Griffin’s murder. In addition, the trial court also found that the probative value of this evidence was not outweighed by danger of unfair prejudice

. We conclude that the trial court did not abuse its discretion when it ruled that this evidence

was ad missible. The evidence tha t showed that Appe

llants were involv

ed in an alterca

tion with Griffin and that they

set fire to Griff

in’s trailer on the

night that he was

killed was releva

nt t o establishing Appellants’ intent and motive for killing Griffin.

Indeed, the T

ennessee Suprem

e Court has previously recognized that evidence of prior acts of violence against the victim are admissible under Rule 404(b) beca

use the evidence

is relevant to show

the defendant’ s ho stility toward the victim, malice, intent, an

d a settled purpose

to harm the victim. Statev. Smith , 868 S.W.2d 561, 574 (Tenn. 1993). Moreover, the evidence that tied

Appellants to the other crimes against Griffin that

were committed just

hours beforeGriffin was killed was also relevant to establishing the identity of Griffin’s killers. Inde

ed, Rule 404(b) provides for the admissibility of evidence about other crimes wh en relevant to issues of identity, intent, and motive. SeeTenn. R. Evid. 404(b) (Sentenci n g Commission Comments). We also conclude that the probative value of this evidence was not outweighed by

danger of unfa

ir prejudice. Thi

s issue has no merit.

B. The Connie Branam Murder The trial court ruled

that the State coul

d introduce evidence about the murder of Branam, but the State could not introduce the fact that Appellants had been convicted of the Branam murder. The trial court found that the evidence about the Branam murder was admissible because it was relevant to establishing the identity of Griffin’s killers. We conclude that the trial court did not abuse its discretion when it ruled that this evidence

was admissible. The evidence regarding the Branam murder

showed that when A

ppellantswent to Howie’s Hi deaw ay wi th B rana m th e day a fte r Gri ffi n wa s ki lle d, t hey ac ted sus pic iou sly b y

re peatedly

questioning the barmaids about whether they remembered see ing them with Griffin o n the previous day and

by attempting

to fabricate a story about drinking at the bar with Griffin af ter20 Appellan ts also conten d that eviden ce abou t Branam ’s murder was inadm issible becau se the State failed to

prove that t

he body tha

t was f ound in th

e burned veh

icle was that of Branam. However, Dr. Bass tes tified t hat the body had been id

enti fied a s that of Brana

m by use

of dent al rec ords. Al though Appellants now claim th at Dr. Ba ss’s identi ficat ion of the body was improper, the record indicates that Appellants did not object t o Dr. Bass’s t

estimony or otherwise contest his identif ication of thebody. Thus, they have waived

any objec tion to the iden tification of Bra nam’s body by Dr. B ass. See Tenn. R. App. P . 36(a) (“N othing in this rule shall be con strued as req uiring relief be gr anted to

a party . . . who failed to take whate ver action wa s reasonab ly avail ab le to prevent or nullif y the harmful

effect of

an error.”).

-24- he had been released from jail. In addition, the evidence showed that when Ne wman told

Appellants that she remembered

them from the day

before, Sutton att

empted to convince

Newman to come wi

th them. When Newman refused, Sutton threatened her. This evidence suggests that Appellants had the intent to silence any witness who could connect them with Griffin’s murder. Thus, the evidence of Branam’s murder was highly relevant to establishing the identity of Griffin’s ki lle rs because it tendedto show that Appellants had killed Branam in order to conceal the fact that they ha d murdered G riffin. In addition, we conclude that the highly probative va lue of this evidence was not outweigh ed by the d anger of unfair prejudice. Under these circumstances, we ca nnot say that the trial court abuse

d its discretion whe

n it admitted this evid

ence. This issue h

as no merit. 20

XI. ADMISSION OF A RIFLE AND SHELLS INTO EVIDENCE Appellant Sutton conte nds that the trial court erred when it admitted the .303 rifle and the .303 shells that were found at Dellinger’s residence into evidence. Specifically , Sutton contends that this evidence was inadmissible because it was not relevant to any issue in the case. We disag ree. As this Court has previ

ously stated

, the determinatio

n of whether evid

ence is relevan

t is withinthe sound discretion of the trial court. State v. Griffis, 964 S.W.2d 577, 594 (Tenn. Crim

. App. 1997) . In this case, investigators testified that a .303 rifle shell had been found in the burned

car tha t co nta ine d Bra nam ’s b ody. In addition, Carmen testified that he had determined that this rifle shellwas fired from the .303 rifle that was found in Dellinger’s residence. This evidence helpe d
connect Appellants to the Branam murder and as we have previously stated, evidence regarding the Branam murder was very

relevant to

establishing the identity of Griffin’s killers. Thus, we conclude that the trial court did

not abuse its discr

etion when it admitte

d this evidence. This issue has no merit.

XII. ADMISSION OF GRIFFIN’S STATEMENTS INTO EVIDENCE Appellants

contend that the trial court erred when it allowed the State to introduce the
statements

that Griffin made to Office r Roberts con cern ing t he i nci den ts o n th e Al coa H ighw ay. Spe cif ica lly, Appellants

contend that

Griffin’s statements were inadmissible hearsay. We disagree

.

Rule 803 of the Ten

nessee Rules of Ev

idence provides , in relevant par t, The following are not excluded by the hearsay rule:21 Appellan ts contend that because Gri ffin’s stat ements were given in response to Roberts’ questions, t he
statements were not spontaneous and thus, were

not made while under

stress or ex

citement. However, the Tennessee Supreme Court stated in Gordon that “st atements made in r

esponse to questi

ons may still be admissible i f the declarant is under the ex citement or stre ss of the event.” 9 52 S.W .2d at 820 –21.

-25- (2) Excited Utterance. A statement relating to a startling event or condition made while the declaran t was under the stress of excitement caused by the event or condition.

Tenn. R. Evid. 803(2). The Tennessee Supreme Court has stated that in order for a statement to be admissible

under this rule, ( 1) there must be a startling event

or condition, (2) t

h e statementmust relate to the startling event or condition, and (3) the statement must be made while the declar

ant is under the stress or excitement from the event or condition. State v. Gordon , 952 S.W.2d 817, 820 (Tenn. 1997). In addition, “[ i]t is well established t hat trial courts ha

ve broad discre

tion in determining the admissibility of evidence, and their rulings will not be reversed absent an abuse of that discretion.” State v. McLeod , 937 S.W.2d 867, 871 (Tenn. 1996). During the hearing on this issue, Officer Roberts testified that on the night of February 21, 1992, he received a report of a possible fight inv olv ing individuals in a black Camaro with one headlight. When Roberts arriv ed at the scene a

pproximately t

wo minutes l ate r, he found Griff in sitting in the bed of a

pickup truck. Upon viewing Griffin, Roberts concluded that Griffin had been in a fight becaus

e he was not wear

ing a shirt,he had scratches on his upper body, and he had a cut behind his left

ear. Roberts testified that when he asked Griffin what had happened, Griffin stated that he had been in an argument with some fri ends and they had put him out of a car

. Roberts testified that at thi s time, Griffin’s voice was shaky, his lip was quivering, and he appear ed to be scared. When R obert s aske d for f urthe r info rmati on, Gr iffin said, “I j us t can’t tell you man,” and he looked like he was going to cry. Griffin also looked ar ound as if he was looking for someone. We conclude that the

trial court did not a

buse its discretion

when it admitt

ed Griffin’s
statements

under Rule 803(2) . First, it is clear th at the alte

rcation during which Griffin sustained scratches and a

cut qualifies as a

startling event

under the rule. A

s noted by the

supreme court,

“the possibilities are endless because any event deemed startling is sufficient.” Gordon , 952 S.W.2d at 820 (citation and in

ternal quotations omitted). Second, Griffin’s statements all related to the altercation. As noted by th e supreme court,

“considerable

leeway is available, because the statement may describe all or part of the event or condition, or deal with the effect or impact of that event or condition.” Id. (citation and internal quotations omitted). Third, Gr iffin made his stat

ements while he was still under the stress or excitement of the altercation. For this thir d requirement, “[t]he ultimate test is spontaneity and logical relation to the main event and where an a c t or declaration springs out of

the transaction while the parties are still laboring under the excitement and strain of the circumstances and at a time so near it as to preclude the idea of del iberation and fabrication.” Id. (citation omitted) . In this case , Roberts testified

that he responde

d to the scene with

i n two minutes of receiving the call and that when he talked to Griffin, Griffin’s voice was shaky, h

is lip

was quivering, and he appeared to be scared and rea

dy to cry. Thus, the evidenc e shows that Griff

in

was still under the stress or excitement of the altercation when he made his stateme

nts. 21 This issue has no merit.22 The record indicates that although Appellants made one vague re ferenc e to hearsay dur ing the bench conferenc e, that was clear ly not the basis o f their objectio n to this eviden ce.

-26- XIII. ADMISSION OF THE TRANSCRIPT OF SUTTON’S PRETRIAL STATEMENT INTO EVIDENCE Appellant Sutton contends that the trial court erred when it allowed the State to introduce a transcript of his pretrial statement into evidence. We disagree. Init ial ly, we note once again that “[i]t is well established that trial courts have broa d discretion in determining the admissibility o

f evidence, and

their rulings will not be reversed absent an abuse of that discretion.” McLeod , 937 S.W.2d at 871. Detective Widener testified that he had interviewed Sutton at the Sevier Count y Sheriff’s Department

on February

25, 1992. Widener a

lso testified that th

is interview had be

en electronica

lly recorded. The State then introduced the audiotape of the interview and began play ing the tape for the jury. After a

few minutes, the tr

ial court stopped t

he tape and aske

d the jurors wheth

er they cou

ld understand the ta

pe. The jurors ind

icated that they

could not. During a subsequent jury out hearing, Wide ner test ified that he was present when Sutton gave his statement, that he had heard Sutton’s wo rds, th at he had previously listened to the tape and verified that the transcript of the tape was accurate. Widener testified that he had listened to the tape when it was in “better shape ” than it was at tria

l and he had compa

red it to the transc

ript se vera l times. Widener acknowledged that there were man

y instances

in which the transcript indicated that a part of the tapewas “unintelligible.” The trial court subsequently allowed the State to introduce the transcript into evidence. Sutton essentially argues that the transcript should not have been admittedbecause it was not
accurate. This argument ignores the testimony of Widener that he heard Sutton give the sta

tement, that he had reviewed the tape, that he had reviewed the transcript, and that he had determinedthat the transcript was accurate. The fact that the transcript contains numerous indications that a part of the tape was “unintelligible” does not mean that the transcript was inaccurate. Thus, we conclude that the trial court did n ot abuse it s discretion when it admitted this evidence. This issue has no merit.

XIV. ADMISSION OF MISSING PERSON REPORTS INTO EVIDENCE Appellants conte

nd that the trial co

urt erred when i

tallowed the State

to introduce the two missing persons reports filed by Viola Griffin in which she stated that she had not seen or heard from Griffin since Februar

y 21, 1992, a

t 11:4 5 p.m. and she had not seen or heard from Branam since February 22, 1992, at 1:00 p.m. We conclude that Appellants have waived this issue. The rec ord indicates tha

t when the State sou

ght to introduce t

he reports during

rebutt al
, Appellant Sutton objected on the ground that the reports were not proper rebuttal evidence. After

a bench confere

nce, Sutton object

ed again on the g

round that t

he reportswere irrelevant and immaterial. The trial court overruled the objection. On appeal, Appella

nts have abandone

d the argument th

at the reports

were improper rebuttal evidence. Thus, we do not addr ess it. Instead, Appellants argue for the first time on appeal that the reportswere inadmissible hearsay evidence. 22 “It is elemen tary that a party may not take one position regarding an issue in the trial court, change his strategy or position in mid-stream, and advoc a te a23 In support o f their argumen t that Dr. Ha rlan should not have been all owed to testif

y during rebut

tal because he could hav e testified during the State’s case in chief, Appe llants cite State v. West , 825 S.W.2d 695 (Tenn. Crim. App. 1992). However West is distinguishabl e from this case because in West , this Cou rt held th at the testimony during rebuttal was impro perly admitted b ecause the tes timony did n ot rebut anyth ing and thus, it should have been proff ered during the State’s case in chief. Id. at 6 98. In this case, Dr. Harlan’s testimony clearl y rebutted the testimony of Dr. Wolfe.

-27- different ground or reason in this Court.” State v. Dobbins , 754 S.W.2d 637, 641 (Tenn. Crim. App. 1988). Thus, this issue is waived.

XV. EXPERT TESTIMONY IN REBUTTAL Appellants

contend that the trial court erred when it allowed Dr

. Harlan to testif

y for the Sta

te in rebuttal. We disagree. The determination of the admissibility of rebuttal evidence lies in the discretion of the trial
court and this Court will not

interfere with

the exercise of this discretionunless there has been clear abuse o f dis cretion appearing on the face of the record. State v. Kendricks , 947 S.W.2d 875, 884 (Tenn. Crim. App. 1996). The record

indicates that when the State attempted to call D

r. Cleland Blake

, Appellants objectedand the trial court conducted a jury out hearing. Although the record indicates that the trial
court subsequently

ruled that Dr. Bl

ake would

notbe allowed to testify, the transcript of the hearing

was not include d in the r ecord pursuant to instructions from defense counsel. The State therefore reliedon the testimony of D r. Ellington and Jas

on McDonald to esta

blish the time of Griffin’s death. As part of the defe

nse proof, Dr. Wolfe opined that Griffin had died between twenty-four and thirty-six hours beforehis body was discovered on February 24, 1992. Thereafter, the State called Dr. Harlan in rebuttal and Appellants objected. The trial court overruled the objection, and Dr. Harlantestified that it was his opinion that Griffin died between 6:00 p.m. on February 21, 1992, and 8:00 a.m. on February 22, 1992. Dr. Harlan also testified that he had reviewed the testimony of Dr. Wolfe and he disagreed with many of the conclusions that Dr. Wolfe had made from

viewing the evidence in the case. The trial court then asked whether Appellants had anything in surrebuttal, and Appellants stated that they did not. Appellants

essentially argue that because Dr. Harla n could have testified during the State’s

case in chief, he should not

have been allowe

d to testify du

ring rebuttal.

However, this Court has previously

stated that “we have

observed that it is within the discretion of the trial court to permit the st ate, in a criminal case, to introduce in rebuttal even testimony which should have bee n introducedin chief.” Kendricks , 947 S.W.2d at 884 (c itation omitted). I

t is clear that theState could have called Dr. Harl

an during its cas

e in chief. However, although the record is not entirely clear because defe nse co unsel prevented the relevant hearing from being transcribed into the rec ord, a reading of the record ind icates that the State’s purpose in calling Dr. Blake was to elicit expert testi mony abou t the time of Griffin’s death. When the trial court ruled that Dr. Blake could not
tes tif y, the State decided

to rely on what was essen

tially lay testimony fr

om Ellington and Mc

Donald about the time of death. Once Appellants proff ered the testimony of Dr. Wolfe, it was within the trial court’s discretion to allow the State to call its own expert to rebut Wolfe’s opinion. 23 Appellants

also contend that it was improper for Dr. Harlanto testify in rebuttal because the Statedid not disclose Dr.

Harlan’s identit

y to Appella

nts before trial. However, it is clear that the-28-

Statedid not disclose Dr. Harlan’s identit

y before tr

ial because it i

ntended to c all Dr. Blake as its expert. In addition, it is well-established that the State’s duty to disclose the names of its witnesses is merely directory, not mandatory

. State v. Harris , 839 S.W.2d 54, 69 (Tenn. 1992). In addition,

a defendant will be entitled to relief for nondisclosure only if he or she can demonstrate prejudice, badfaith, or undue advantage. Id. In this case, Appellants claim that they were

prejudiced bec

ause the fact that Dr. Harlan testified without prior notice prev ented them from offeri ng anythin

g in surrebuttal. However, the record indicates that when the trial court asked Appellants whether they hadanything

in surrebuttal, Appellants neither expressed an intention to offer surrebuttal nor asked for a continuance in

order to call othe

r witnesses. Thus,

Appellants

have waived any

claim that they

were prevented

from calling further witnesses to offer surrebuttal. See Tenn. R. App. P. 36(a ). This issue has no merit.

XVI. SUFFICIENCY OF THE EVIDENCE Both Appellants

contend that the e

vidence was insuf

ficient to support their convictions for first degree murde

r because the Sta

te failed to establish all of the elements of the offense beyond a reasonable

doubt. In ad dition, Appellant Sutton co ntends that the evi

dence was insuff

icient to support his convicti o n under the theory that he was criminally responsible for the conduct of Appellant Dellinger. When an appellant

challenges the sufficiency of the evidence, this Court is obliged to review that challenge ac

cording to certain well-se

ttled principles. A

verdict of guilt

y by the jury, approved by the trial judge, accredits the testimony of the State’s witnesses and resolves al l conflicts in the testimonyin favor of the St ate. State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994). Although an accused is originall

y c loaked with a pre

sumption of innocen

ce, a jury v

erdict removes th

is presumption and replaces it w ith one of guilt. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). Hence, onappeal, the burden of proof rests with Appellant to demonstrate the insufficiency of the convicting evidence. Id. On appeal, “the [S]ta te is entitled to

the strongest le

gitimate view of the evidence as well as all reasonable and legitimate inferences that may be drawn therefro m.” Id. Where the sufficiency of the evidence is contested on appeal, the relevant question for thereviewing
court is whether any

rational trier of

fact could

have found the accused guilty of every element of the offense beyond a reasonable doubt. Jackson v. Virgini a , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In conducting ou r evaluation of the convicting evidence, this Cou

rt is precluded from reweighing or reconsidering the evidenc e. State v. Morgan
, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996). Moreover, this Court may not substi tute its own infere

nces “for those draw n by the trier of fact from circumstantial evidence.” Matthews , 80 5 S. W.2 d at 779 . Fi nal ly, Rule 13(e) of the Tennessee Rules of Appellate Procedure provides, “findings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact bey ond a reasonable doubt.”

A. The Elements of First Degree Murder Appellants

contendthat the State failed to establish all of the elements of first degree murder beyond a reasonable doubt. We disagree.24 A 1995 amendment eliminat ed deliberation as an element of first- degree murder. See Tenn. Code Ann. § 39- 13-202(a)(1) (1997) (“First degree murder is: A premeditated and intentional killi ng of another.”).

-29- When Gr iffin was killed in 1992, Tennessee’s first-degree murder statute provided that “[f]irst deg r ee murder is: [a]n intentional, premeditated and deliberate killing of another.” Tenn. Code Ann. § 39-13-202 (1991). 24 First, Appellants contend that the evidence was insufficient to support their convictions because the State failed to prove that Appellants were the individuals whokilled Griffin. However,

we conclude that when

the evidence is viewed

in the light most favorable to the State, as it must be, the evidence was clearly suf ficient for a rational jury to find beyond a r easonable doubt that Appellants killed Griffin. Carr saw Appellants and Griffin come to Howie’s Hideaway on Fe bruary 21, 1992, in

a dark blue Ca maro orTrans Am. Newman observed Appellants and Griffin when they lef t Howie’s Hideaway at approximately 7:00 p.m. Approximately ten minutes later, Mr. and Mrs. Walker observed an altercation on theAlcoa Highway in which a person standing outside of a dark-colored Camaro with o ne headlight appe ared to be figh

ting with a perso

n inside the Camaro . That same night, Davis saw a shirtless man stumbling around by the Alcoa Highway and she subsequently saw two men s tand ing by a dark-colored Camaro in the same area who appeared to be looking for something. When Officer Robert

s responded to

the call about the altercation on the Alcoa Highway, he found a shirtless Griffin sitting on the bed of a pickup tr uck. Griffin initia

lly stated that an argument hadtaken place and that some friends put him out of a car, but when questioned further, he stated that the men were not really his friends. Griffin refuse d to give any

other information

and Roberts subsequently

arrested Griff

in f or public intoxicatio

n and took him to the B lount County Jail

. Sergeant Herronparticipated in the booking of Griffin into the jail at 7:40 p.m . Ap pro xim ate ly fo rtyfive minutes later, De

llinger approa

ched Herron an

d asked when Grif

fin could be released. Herron told Dellinger that the victim would be kept a minimum of four hours. At approximately 9:00 p.m., Hen ry saw Delling er’s white pickup truck drive up the road from the direction of Griffin’s trailer and pull into Dellinger’s driveway. A few seconds later, Henry saw flames shooting out of Gr iffin’s trailer.

Clabo subsequently

investigated the fire

and concluded that the fire had bee

n set by human

hands using a liqu

id accelerant. When Jennifer Brana

m l earned that Griffin’s trailer was on fire, she went to Dellinger’s trailer and asked Appella

nts to accompany her to Griffin’s trailer. Dellinger then stated that he cou

ld
notgo because

he was in enough trouble already. L ater that night, Jennifer B

ranam saw Appell

ants move an object that looked like a shotgun from Dellinger’s truck to Linda Dellinge r’s car. Griffin was subsequently

released from jail at 11:25 p.m. when Dellinger returned to the jail andposted a cash bond. Shortly thereafter, Lieutenant Defoe saw Appellants leave the jail with an individual who had just been released. At 11:55 p.m., McDona

ld heard two or three gunshots coming from the Blue Springs/Blue Hole area near

his home. On February

24, 1992, Carter f

ound the body

of a man in the Blu

e Hole

ar ea. Hamilton stated that he subsequently located the body and he also found two spent twe lve

gauge shotgun shells andtwo emp ty be er ca ns b y the bod y. Agent Carman subsequently determined that shotgun shells found in Dellinger’s yard and th e surrounding area and the shells found near25 Although it is not clear, Ap pellants app arently claim that the evidence was also insufficient beca use the State

failed to prove tha t the body fou nd in the Blu e Hole ar ea was th at of Griffin. We reject this contention because the evidence clearly shows that the St ate established that t

he body was that of Griffin.

-30- Griffin’s body had been fired from the same shotgun. Dr. Harla n opined that Griffin died between 6:00 p.m. on February 21, 1992, and 8:00 a.m. on February 22, 1992. The next day, Appellants went to Howie’s Hideaway with Branam. While they were there, Dellinger repe atedl y asked Carr and Newman whether they remembered Appellants from the previous day. Sut

ton s ubsequently attempted to get Newman to leave with Appellants and when she refused, Sutton threatened her. Appellants and Branam left at 6:30 p.m., and the flames from the vehicle that contained Branam’s body were see n at 8:00 p.m. Clabo subsequently concluded that the fire had been set by human hands with the use of an outside ignition source. Carman subsequently

determined that the .303 rifle shell recovered from the scene of the burned vehicle was fired from the rifle that was found in Dellinger’s home. It is clear that the a

bove evidence, w

hen viewed in the l

ight most favora

ble to the State, is sufficient for a rational jur

y to find bey

ond a reasonable

doubt that Appella

nts were the individuals who killed Griffin. A rational jury could conclude f

rom this evidence that Ap pellants fought w

ith Griffin at approximately 7:10 p.m., set fire to Griffin’strailer at approximately 9:00 p.m., and then retreived a shotgun. A rational jury could a lso conclude that G

riffin was killed a

t 11:55 p.m., only thirty minutes after he was last seen alive in the presence of Appellants. A rational jury could a

lso conclude that App

ellants hadmurdered Bran am in order to cove

r-up the murder o

f Griffin. Thus,

a rational jury

could certainly

conclude that be

cause Appellant

s fought with

Griffin five hours before he was killed, that Appellants set fire to Griffin’s trailer three hours before he was killed, that Appellants

bailed Griffin ou

t of jail and took him w

ith them thirty minutes before he was killed, that the shotgun hulls foun

d near Griffin’ s body had be en fired from the

same gun as the h

ulls found in Dellinger’s y

ard, and that Appe

llants killed Bra

nam in order to conceal the murder of Griffin, that Appellants were the individuals who killed Griffin. 25 Appellants

also claim

that the evidence

was insufficient

to support their co

nviction because the State failed to prove that the murder was committed with premeditation and del iberation. Premeditation requires a showi ng of a previous

ly formed de

sign or intent to

kill. State v. West

, 844 S.W.2d 144, 147 (Tenn. 1992). Deliberation requires that the offense be committed w ith cool purpose, free of the passions of the moment. Id. Although pr emedi tation “may be formed in an instant, deliberation requires some per iod of reflection, during which the mind is ‘free from the influence of excitement, or passion.’” Statev. Brown , 836 S.W.2d 530, 538 (Tenn. 1992) (citation omitted). While it remains true that no specific

length of time

is required for th

e formation of a c

ool, dispassionate

intent to kill, more than a “split-second” of reflection is re

quired in order to satisfy the elements of premeditation and deliberation. Id. at 543. The elements of premeditation and deliberation are questions for the jury which may be establishedby proof of the circumstances surrounding the killing. State v. Bland , 958 S.W.2d 651, 660 (Tenn. 1997); State v. Bordis , 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995). Tennesse e courts have delineated seve

ral circumst

a nces that may be indicative of premeditation and deliberation, including planning activit y prior to the actual killing, State v. Schafer , 973 S.W.2d 269, 273 (Tenn. Crim. App. 1997); facts from which motive may be inferred, Bordis , 905 S.W.2d at 222; the use of-31-

a deadly weapon

upon an unarmed

victim, Brown , 836 S.W.2d at 841; and facts about the nature of the killing. Bordis , 905 S.W.2d at 222. We conclude that the above evidence, when viewed in the light most favorable to the State,

was sufficient for a rational jury to conclude bey ond a reasonable do

ubt that Appellants

killed Griffin withboth premeditation

and deliberati

on. First, there was evidence that Appellants planned the murder of Griffin before they killed him. Indeed, the e vidence shows that

after fighting with Griffin, Appella nts att empted to bail him out of jail. When this attempt failed, Appellants burned down Griffin’s trailer and then retrieved a sh

otgun. Appellants then re turned to the jail, s

uccessfully obtainedGriffin’s release, and then killed him thirty

minutes later. Second, there was evidence that Appellants hada motive to kill Griffin. For wha

tever reason, A

ppellants were a

ngry enou gh with Griffin to fight with him and then set fire to his residence. Third, there is absolutely no indication that Griffin was armed when he was shot with the shotgun. Fourth, the fact that Griffin was taken
to a remote area and was then shot in the back of the head indicates that the killing was done as part of a preconceiv

ed design. I n short, a rational jury could conclude from these circumstances that Appellants

decided to kill Griffin a nd then reflected on tha t decision with cool

purpose for some period that was a

t least more than a “split-second” before they shot and killed him. This issue has no merit.

B. Criminal Responsibility Sutton contends that the e vide nce was insufficient to support his conviction because there

was no proof that he fi

red the shot that ki

lled Griffin or tha

t he did anything to

assist Dellinge r. We disagree. Tennessee Code Annotated section 39-11-402 states in relevant part that A person is criminally responsible for an offens e commit ted by the conduct of another if .

. . [a]cting with

intent to promote or

assist the commission

of the offense, o

r to benefit

in the proceeds or results of the o ffense, the per

son solicits, direc

ts, aids, or attempt

s to aid another person to commit the offense.” Tenn. Code Ann. § 39-11-402(2) (1991). In order to establish that the defendant had the intent required by this subsec

tion, it must be shown “that

the defendant in s

ome way ass

ociate[d] himself withthe venture, act[ed] with knowledge that an offense [wa]s to be committed, and share[d] in the criminal intent of the principal in the firs t degree.” State v. Maxey , 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994) (citation and internal quotations omitted). “The defendant must kn owi ngly, volun tarily

and with common intent unite with the principal offenders in the commission of th e crime.” Id. (citation and internal quotations omitted). The evidence in this case showed that both Appellants were drinking with Griffin in Howie’s Hideaway on February

21, 1992. Both Appella

nts and Griffin subsequently left the establishment in Sutton’s Camaro. Ten minutes later, the Walkers observed the alt erca tio n on the Alc oa H ighw ay. Two hours later, Henry saw Dellinger’s truck driving aw ay from Gri ffin’s burning trailer. When Jennifer Branam then went to Dellinger’s trailer to obtain help, Sutton lied to her and stated that Griffin was in Blount County with a woman. Later that nig ht, Jennifer Bran

am saw both Appella

nts take an object that look

ed li ke a s hotgun out of Dell inger’s truck a

nd place it in a ca

r. Both Appellants

subsequently went to the Blount County Jail and obtained Griffin’s relea

se thirty minutes before he was killed. The next day, Appellants and Branam went back to Howie’s hideaway. When26 Appellant Sutton al so contends

that t he tria l court erred when it fai led to gr ant the ir moti on for judg

ment of acquittal. A motion for judgment of acquitta

l requires t

hat the tr

ial court det

ermine the suf

fici ency of the evidence. Tenn. R. Crim. P. 29(a). For the same reasons we conc lude th at the evidence was sufficient to support A ppellants’ convictions, we also conclude t hat the tr ial court di

d not err when it

failed to grant the mo tion for judg ment of acq uittal.

-32- Newmanstated that she re membered Appella

nts and Gri ffin from the previous day, Sutton attempted
to get Newman to come with them and when she refused, he

threatened her

. We conclude that t

his evidence is clearly sufficient for a rational jury to find beyond a reasonable doubt that, even if Sutton hadnot fired the shot that killed Griffin, Sutton was criminally responsible for the murder of Griffin by Dellinger because Sutton had aided Dellinger with the intent of promoting or assisting the murder of Griffin. This is sue has no merit. 26

XVII. FAILURE TO R EMOVE A JUROR Appellants

contend that the trial court erred when it failed to remove a juror whose ex-wife had engaged in misconduct. We disagree. “Whether to remove jurors who become or are found to be unable or disq

ualified to

perform their duties lies in the discretion of the trial court.” State v. Forbes , 9 18 S.W.2d 431, 451 (Tenn. Crim. App. 1995) (citation and internal quotations omitted). The record indicates that at the conclusion of the proof and closing arguments in this case,

one of the jurors repor

ted that earlier

that day he h

ad received a p

hone call from his

ex-wife in which she had stated that “t

hey” would

give him $500.00 in return for a not guilty verdict for Sutton. The juror reported the call to a court officer, and the officer told the juror that he would notify the court and he told the juror not to tell any other jurors about the call. After the juror explaine

d what had happen

ed, the trial cour

t commended him

for the way that he had handled the situation. The trial court then asked the juror how the phone call would affect his feelings about serving on the jury and a bout foll owing the court’s instructions. The juror respon ded, “I already told her, it’s not going to change. I’m not going to change wha t I alread y decided on. They can take the money a nd do whatev e r they want with it. It just made me mad . .

. .” After this somewhat ambiguous statement, the trial court asked the juror whether he would be able to vote according to the dictates of his conscience based on the proof and the instructions from the court. The juror responded that he would. After a brief bench conference , the trial court asked the juror whether he had told any other jurors abou

t the phone call

and the juror responded that he hadnot. The trial court then asked the juror again whether

the phone call wou

ld inhibit his ability to reach a verd

ict based on the fa

cts and the law. Th

e juror responde

d that it would not. Appellants’ argument as to why this juror sho uld have been removed is far from clear. However, it

appears that their contention is that the juror’s statement that the phone call would not “change what I already decided on” demonstrates that the juror was biased against them and that he hada preconceived judgment about the case. This state ment could have any number o f meanings in the context in which it was given, including an assertion that the phone call would not affect his ability to be i mpart ial. In any case, the trial court clarified the meaning of the statement by asking the juror about whether the phone call would affect his ability to impartially reach a verdict based

on the proof and the

court’s instructi

ons about the law. O

n two occasions,

the juror responded that he wo u ld follow the law a nd apply it to t

he proof that had

been presented

. Under these-33-

circumstances,

we concludethat the trial court did not abuse its discretion when it failed to remove this juror. This issue

has no merit.

XVIII. FAILURE TO GRANT A MISTRIAL

Appellants

contend that the tr

ial court erred

when it failed to g

rant a mi strial after jurors where exposed to evidenc e indicating tha

t Appellants

had already been tried for the Branam murder. We disagree. The decision of whether to grant a mistrial is within the sound discretion of the trial court

. Statev. McKinney , 929 S.W.2d 404, 405 (T enn. Crim. App. 1996). This Court will notdisturb that decision absent a finding of an abuse of discretion. State v. Adkins , 786 S.W.2d 642, 644 (Ten n. 1990). “Generally, a mistrial will be declared in a criminal case

only when the

re is a ‘manifest

nece ssi ty’ requiring such

action by the trial judge.” State v. Millbrooks , 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991). “The purpose for declaring a mistrial is to correct damage done to the judicial processwhen some event has occurred which precludes an impartial verdict.” State v. Williams , 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). In determining whe the r th ere i s a “m ani fes t ne cess ity” for a mistrial, “‘no ab stract f ormula should be me

chanically

applied and all ci

rcumstances shou

ld be taken into account.’” State v. Mounce , 859 S.W.2d 319, 322 (Tenn. 1993) (citation omitted). The record indicates that while Larry Munc y wa s testifying about the chain of custody of various pieces of

evidence, he stated that certain evidence had been turned over to Jenny Noe “during the course of

the trial.” Defense counsel then objected and moved for a mistrial on the ground that the jurors could a ssume b ased on Muncy ’s use of the word “trial” that Appe

llants had previou

sly been charged and tried for the murder of Branam. The c ourt overruled the motion. The record also

indicates that

the trial court subsequently r eceived a note f

rom an alternate juror in which the juror indicated that hehad seen a bag with the words “not admitted in Sevier County trial” sitting on a table. W he n the trial court questioned the juror about this incident, the jur or stated that because he had seen the bag and because Muncy had previously used the wo r d “trial,” he assumed that there had already been a trial in Sevier County. The juror then stated that he had mentioned the bag to one other juror, but she had given no response. The tria l court then askedthe juror whether

seeing thebag or hearing the word “trial”

would have any

influence on his ability to base his verdict on the proof presented in this case and the juror responded,“Non e whatsoever.” D

efense counsel

renewed the motio

n for a mistrial an

d the court overr

uled it. Appellants

argue that they were entitled to a mistrial based on the authority of State v. Fleece

, 925 S.W.2d 558 (Tenn. Crim. App. 1995). In Fleecethis Court held that a defendant who was convictedof driving under the i nflue nce was entitled to a new trial because the prosecutor had improperly

created the inference that the defendant had a previous conviction for driving unde r the influence by repeatedly questioning the defendant about

restrictions on his

license while

waving the folder from the previous case in front of the jury. Id. at 560–61. The two incidents in this ca se fall far short of the impermissible conduct of the prosecutor in Fleece . Unlike the intentional conduct by the prosecutor in Fleece , there is no indica tion that Muncy ’s use of the word “tr ial” and the placement

of the bag on the table were anything more than

inadvertent mista

kes. Further, th

e use-34-

of the word trial and the writing on the bag did not create any inference whatsoever a boutthe verdict in the Sevier County trial. In fact, when the trial court spec ifically asked the juror whether any thing he had seen or heard had indicated what the outcome of the Sevier County trial had been, the juror respond edno. Under these c ircumstances, we

conclude that the

trial court did not a

buse it s discretion when it

ruled that there

was no “manifest n

ecessity” for a mistrial in

this case. This issue has no merit.

XIX. THE STATE’S CLOSING ARGUMENT DURING THE GUILT P HASE Appe lla nts contend t

hat the Sta

te’s clos ing arg ument was

improper and preju

dicial. We conclude that Appellants have waived this issue. Initially, we note that the record indicates that Appellant’s did not make a single objection
to anything th

at either of the tw

o prosecutors sai

d during their

closing arguments. By failing to make

a contemporaneous objection, Appellants waived this issue. See State v. Farmer
, 927 S.W.2d 582, 591 (Tenn. Crim. App. 1995); Tenn. R. App. P. 36(a). Moreover, Appellants have failed to identify which of the two prosecutors gave the allegedly imprope r argument and they have failed to identify

even a single statement

that they claim wasimproper. It i s not the function of

this Court to specula

te

as to what portions of the arguments Appellants would contend were improper. By failing to include appropriate

citations to the record, A ppellants have waived this issue. T enn. Ct. Crim. App. R. 10(b).

XX. FAILURE TO INSTR UCT ON A LESSER INCLUDE D OFFENSE Appellant Sutton contends that the trial court erred when it failed to instruct the jury on the lesser included offense of facilitation of a felony. We disagr ee. Tennessee Code Annotated section 39-11-403 provides in relevant part that A person is criminal

ly responsible for the facilitation of a felony if, knowing that another intends to

commit a specific

felony, but w

ithout the in

t ent required for criminal responsibility under § 39-11-4 02(2), the person knowingly

furnishes substantial assistance in the commission of the fel ony. Tenn. Code Ann. § 39-11-403(a) (1991). As previously noted, the int ent require d for criminal responsibility

under section 39-11-402(2) is “intent to promote or assist the commission of the offense
, or to ben efit in the proceeds or results of the offense.” Tenn. Code Ann. § 39-11-402(2) (1991). In State v. Burns

, 6 S.W.3d 453 (Tenn.1999) the Tennessee Supreme Court concluded that an offense is a lesser-included offense of another if: (a) all of its statutory elemen ts ar e included within the statutory elements of the offense charged; or (b) it fails to meet the definition in part (a) only in the respect that it contains a statutory element or elements establishing (1) a different mental state indicating a lesser kind of culpability; and/or (2) a less serious har

m or risk of harm to

the same person, p

roperty or public interest;

or (c) it consists of-35-

(1) facilit ation of the offe nse charged or

of an offense tha

t otherwise meets

t h e definition of lesser-included offense in part (a) or (b); or (2) an attempt to commit

the offense cha

rged or an off

ense that otherw

ise meets the definition in part (a) or (b); or (3) solicitation to commit the offense charged or an offense that othe

rwise meets the definition of lesser-included offense in part (a) or (b).

Id. at 466-67. The sup

reme court thus c

oncluded, and re

cently rei terated, that f

acilitation i s a lesser-included

offense when a

defendant is charged with criminal responsibility for the conduct of another. Id. at 470; State v. Fowler , 23 S.W.3d 285, 288 (Tenn. 2000). “This does not

mean, however, that an

instruction must be g

iven simply be

cause an offen

se is a lesser-included offense of another.” Fowler , 23 S.W.3d at 288. “ First, the trial c ourt must determine whether ‘any

evidence exists tha

t reasonable mind

s could accept as to the lesser included

o ff ense.’” Id. at 289 (cit ing Burns , 6 S.W.3d at 469). “Second, the trial court must determine whether the evidence vie

wed in thislight is legallysufficient to support a conviction for the lesserincluded offense.” Id. In this case, there is a

bsolutely no evidence in the

record from whic

h a rational jury

could conclude that Dellinger f

orced Sutton to par

ticipate in the mur

der against

his will. Further, we

hold that a rational jury could not conclude from the evidence in the recor d that Sut ton was merely a bystander during the murder of Griffin. The State’s t heory of the case, which was supported by extensive proof, was that Dellinger and Sutton acted in unison with a comm on purpose and design
to kill Griffin. Indeed, the State’s theory was that both Appellants foug ht with Griffin, attem pted
to bail Griffin out of jail, set fire to Griffin’s trailer, transferred the murder weapon f

rom a truck to

a car, successfu

lly bailed Gr

iffin out of jail, and then were present while one of them fired the fatal shot. The defense theory

for both Appellants was that neither one of them committed the murder. Indeed, much of the defense proof went to establishing that they were friends with Griffin and had

no reason to kill him, th

at Griffin died lo

ng after he wa

s last seen with App

ell ants, and that there

were several other possible culprits in this case. Thus, the evidenc e inthe record created an “all or nothing” situation in

which Sutton and Dellinger both actively participated and promoted the murder of Griffin or neither one of them did. There is simpl y no evidence in the record from which a rational jury could conclude that Sutton provided substantial assistance to Dellinger without having the intent to promote or

assist the commission of the offense. Therefore, the trial court did not err when it failed to instruct the jury on the lesser included offense of facilitation of a felony . This issue has no merit.

XXI. SPECIAL INSTRUCTION ON REBUTTAL EVIDENCE Appellants

contend that the trial court erred when it failed to give the jury a special instruction about rebuttal evidence. We conclude that Appellants have waived this issue. Appellants

claim that the trial court should have instructed the jury that it could only consider the State’s rebuttal e

vidence for the i

mpeachment of de

fense witnesses and it could not consider the
t estimony as substantive evidence. However, Appellants have failed to provide a specifi c explanation for wh y this i nstru ction shoul d have been gi ven. In addition, Appellants have failed to-36-

citeany authority for their proposition that this instruction should have been given and they have also failedto provide a proper citation to the record. Thus, Appellants have waived this issue. Tenn. Ct. Crim. App. R. 10(b).

XXII. SPECIAL INSTR UCTION ON “LAST SEEN ALIV E” Appellants

contend that the trial court erred when it refused to instruct the jury that it c ould not convict Appellants simply because Griffin was last seen alive in their presence . We disagree. The record indicates that

the trial court

refused to give this special instruction because “the charge sets out very clearly . . . what ha s to be proven to establish guilt.” Indeed, the charge clea

rly instructsthe jury that it can only convict Appellants of anoffense if the Sta te proves the ele

ments of that offense beyond a reasonable doubt. I n addition, the charge clearly instructs the jury on the elementsof first degree murder and its lesser included offenses and the charge also instructs the jury about criminal responsibility

for the conduct o

f another. I

n short, the charge ac

curately a nd correctly instructsthe jury on

burden of proof, presumption of innocence, elements of the offenses, and the
nature of different

kinds of evidence. “When the instructions given by the trial judge are a corre ct statement of the law, and

the instructions fully and fairly set forth the applicable law, it is not error for a trial judge to r

efuse to give a specialinstruction requested by a party.” State v. Bohanan , 745 S.W.2d 892, 897 (Tenn. Crim. App. 1987). T his issue has no mer

it.

XXIII. CHARGING THE JURY ON SUNDAY The record ind icate s th at t he p roo f was clo sed and clo sin g arg ume nts were mad e on Sat urd ay, August 31, 1996. A fte r th e tr ial cou rt i nfo rme d th e ju ry th at i t wo uld be i nst ruct ed t he n ext day,
court was adjourned at 8:55 p.m. Court was res ume d at 1:1 5 p. m. o n Su nda y, September 1, 1996, andthe trial court immediately conducted the hearing about the juror who had bee

n contacted by

his ex-wife. Shortly thereafter, the trial court charged the jury . The jury began delibe

r ations at 2:20 p.m. and returned with the verdicts at 7:35 p.m. Following this Court’s decision in State v. De biasi Sinard King & Dewayne King , No. 03C01-9801-CR-00015, 1999 W L 2 81080 (Tenn. Crim. App., at Knoxville, April 30, 1999), the Appellants

raised the issue of whether t he trial court’s having instructed the jury on a Sunday coupledwith the jury’s deliberations and return of verdicts on Sunday

required a new t

rial. In that

case this Court held that as late as 1965 the Tenn esse e Supreme Court reaffirmed the ancient

common law rule tha t judicial proceedings conducted on a Sunday are void. See Smith v. State , 215 Tenn. 314, 385 S.W.2d 748 (1965). As of the time of this Court’s decision in King
, this rule had not been altered by either the legislature or the Tennessee Supreme Court. Thus, this Court granted a new trial to the defendants in King since a portion of their trial had occurred on a Sunday. When the Appellants raised this issue by way of a suppleme ntal brief this Court orde red a response by t h e State. The State

responded, conc

eded that the insta

nt case was indisti

nguishable from King , but indicated that it was pursuing an appeal to the Tennessee Supreme Court in the King

case. The State asked this Court to stay its decision in the instant case until such time as our Supreme Court resolvedthe issue of the propriety of Sunday court pr oceedings. Without

objection from the Appellants, this Court granted theState’s request to stay our opin

ion in this case until the Tennessee Supreme Court resolved this issue.27 Tennessee Code Annotated sect ion 39-13-204 provided that one of the aggravating cir cumstances that

can be used as a basis for imposing a death sentence is th e fact t hat the defendant

has previ

ously bee

n convict

ed of one or more felonies

whose st

atutory elements

involve the use of viol

ence to t he person. Tenn. Code Ann. § 39-13-204(i )(2) (1991).

-37- On January 19, 2001 , t he Tennessee Supreme Court handed down its decision in State v. Debiasi Sinard King and Dewayne King , No. E1998-00283-SC-R11-CD, 2001 WL 46244 (Tenn. 2001). In that decision the Court rejected a per se rule invalidating Sunday Court proceedings. The Courtheld whether to conduct court proceedings on a Sunday re sts within the discretion of the trial court. The Court went on to hold:

In exercising this discretion, the trial court should be deferential to the preferences of

the litigants,

witnesses, jurors , and attorney s and must be mindful of the need for every participant in

a trial proceed

ings to be prepared and rested. The trial court must al so respec t and accommodate

the genuinely

-held religious

v iew of any litig

ant, witness, juror, or

attorney. Finally, the trial court must weig h all of these concerns against whatever pressing need or compellin

g interest may necessitat e a Sunday procee ding. Id. at * 8

In the instant case

the trial had been lengthy and hard fought. The jury had been sequestered. When the trial court proposed giving his instructions to the jury and having the jury deliberate on Sunday the jurors indicated that was fine with them. No attorney or either of the Appellants voiced any objection to the Sunday proceedings. The trial court made appropriate arrangements for jurors who wished to attend re

ligious service

s. Under these

circumstances, we find

no abuse of discretion in conducting Sund

ay court pr

oceedings in the

instant case. This

issue is without meri

t.

XXIV. USE OF APPELLANTS’ CONVICTIONS FOR THE BRANAM MURDER IN SENTENCING Appellants

contend that the trial court erred when it allowed the State to i ntroduce thei r convictions for the Branam murder into the sentencing phase of trial. We disagree. Appellants

contendthat because the trial court allowed the State to introduce facts about the Branam murder into evide

nce in order to es

tablish the identity

of Griffin’s kill

e rs, the trial court should not have allowed the State to introduce Appellants’ convictions for the Branam murd e r during the sentencing phase of trial in order to establish the aggravating cir cum stan ce that Appellan

ts hadpreviously been

convicted of a felony

involving violence to the person. 27 As authority for this proposition, Appellants cite State v. Bigbee , 885 S.W.2d 797 (Tenn. 1994), in which the Tennessee Supreme Court held that when the State is seeking imposition of a death sentence on the basis that the defendant has previously been convicted of a felony involving violence to the person, the State may not introduce evidence about t he specific fac

ts of the prior cri

me during the sente

ncing phase when the conviction shows on its face that it involved violence to the person. Id. at 811. We conclude that Appellants’ reliance on Bigbee

is misplaced. Nothing in Bigbee prevents the State from relying on a previous conviction for a felony involving violence to the person as an28 The State introduced evidence th at Sutton had a prior co nviction in G eorgia for ag gravated a ssault.

29 In a related issue , Appellan ts contend tha t the trial court erre d when it failed to strik e the Stat e’s not ice of intent to seek the death penalty. Specifi cally, Appellants contend that because t he tri al co urt had ruled that the State would be allowed to introduce facts about the B ranam mu rder into evid ence in ord er to establish the identity of Griffin’s killers, the trial court sho uld have stric ken the Stat e’s not ice of i ntent t o seek the

death penal

ty becaus

e it rel ied on Appellants’ convictions f or the Branam murder as t he aggravatin

g circumstance

upon which the deat

h penalty was sought. For the same reasons t hat we con clude that t he trial court did not err when it all

owed the State t

o introduce Appellants’ convictions for the Bra nam murd er into evidence during the sentencing pha se, we also concl

ude that the t

rial court did n ot err when it failed to strike the State ’s notice of intent to seek the dea th penalty.

-38- aggravating

circumstance after the State has introduced the facts of the prior conviction during the guilt phase of trial in ord er to establish an element of first degree murder. Rather, Bigbee simply precludes the State from introducing the specific facts of t he prior offense during the sentencing phase itself. Indee

d, the State fully

complied with

this requirement. The record indicates that the State introduced no evidence about the specific facts of the Branam murder during the sentencing phase and the prosecutors made no mention of the specific facts during their cl osing arg uments. Instead, the State merely used Appellants’ convictions to establish that Dellinger had one prior conviction for felonies involving violence against the person and that Sutton had two prior convictions for a felony involving violence to the person. 28 Further, thetrial court instructed the jury that in imposing sentence, i t could only consider “any of the statutory aggravating circumstances which have been

raised during the sentencing phase” and that it “shall not take account of any other aggravating

facts or circum stan ces as the basis for deciding whether the death penalty would be appropriate

in this case.” The jury is presumed to have followe d those instructions. See State v. Nesbit
, 978 S.W.2d 872, 885 (Tenn. 1998). Under these circumstances, we conclude that the trial

c ourt did not err when it allowed the State to introduce Appellants’ convictions for the Branam murder during th

e sentencing ph

ase. This issue ha

s no merit. 29

XXV. THE STATE’S CLOSING ARGUMENT DURING THE SENTENCI NG PHASE Appellants

contend th at the Stat e’s closin g argument dur ing th e sentencing phase was improper and prejudicial. We disagree. Init ial ly, we note that the record indicates that Appellants did not make a single objecti

on to anything that either of the two prosecutors said during their closing arguments during the sentencing phase. By failing to make a contemporaneous objection, Appell

ants waived this issue. Farmer , 927 S.W.2d at 591); Tenn. R. App. P. 36(a). However, notwith standing waiver, we conclude that Appellants are n

ot entitled to relie

f even on the meri

ts. Ess ent ial ly, Appellants claim that the closing arguments of both prosecutors were improper be cause they included references to the fact that eac h Appellant had been previously convicted o f first-degree

murders. As support for this proposition, Appellants cite State v. Smith , 755 S.W.2d 757 (Tenn. 1988) and State v. Bigbee , 885 S.W.2d 797 (Tenn. 1994). However, Smithand Bigbee

are clearly distinguishable from this case. In Smith
, the TennesseeSupreme Court held that because the jury had been informed that the defendant had received a life sentence for one murder conviction, it was improper for theprosecutor to argue that the jury would be imposing no punishment at all if it imposed a nother life sente nce fo r the s econd murde r conv ictio n. 755 S.W. 2d at 7 67–68 . In-39-

Bigbee
, the supreme court held that theprosecutor’s argument was improper because he had strongly implied that imposition of a death senten ce for a second

murder convictio

n would be an appropria

te way to punish the defendant for a previous murder conviction for

which the defendant received a life
sentence. 885 S.W.2d at 812. The prosecutors i

n this case did neither of these things. First, the prosecutors never mentioned t he fact t hat Appella

nts had received a life sentence for the Branam murder and they ne

ver argued tha

t imposition of a life

sentence in this c

ase would be no punishment
at all. Second, the p rosecutors n ever stated or implied that imposition of a life sentence for the Griffin murder would be an appropriate punishment for the Branam murder. Instead, the prosecutors only mentioned the Branam murder in the context of arguing that because the State had proven the existence of the ag gravating circumstance and had proven that the agg ravating circumstance outweighed

the mitigating circumstances, the death sentence was the approp riate sente

nce in this

case. There is nothing

imp roper about arguing that the existence of the prior conviction as an aggravating

circumstance su

pports imposition of a

death sentence. See id. This issue has no mer it.

XXVI. FAILURE TO I NFORM THE JURY ABOUT THE PREVIOUS LIFE SENTENCE Appellants

contend that

the trial court erre

d when it failed to i

nstruct the jury

that Appellants had received life sentences for their convictions in the Branam murder case. We disag ree. Appellants

concedethat

under current law, the trial court properly refused to instruct the jury about the sentences in the Branam murder case. Indeed, the Tennesse e Supreme Court has specifically

held that it is improper to inform a jury in a capital case that the defendant rece ived a life
sentence for a

previous first degree murder conviction. State v. Smith , 857 S.W.2d 1, 24–25 (Tenn. 1993). This Court has neither the authority nor the desire to overrule the supreme court on this issue. This issue has no mer

it.

XXVII. INSTRUCTION ABOUT PROOF OF

IDENTITY Appellants

contend that the trial cour t failed to p roperly instruct the jury about the State’s burden of proof

in est ablishing that Appellants were the same individuals who were convicted of prior felonies involving violence to the person. We disagree. The record indicates that during the sentencing phase, the trial court instructed the jury that The burden of proof is upon the state to prove any statutory ag gravating circumstanceor circum stances beyond a re asonable doubt. A

reasonable doubtis a d ou bt based upon reason and common sense after careful and impartial con sid eration of all the evidence in this c

ase, and is an ina

bility after such investigation to let the mind rest easily. The trailcourt then ins tructed the jury that in order to show the existence of the aggra vating circumstancefor Sutton, the State was relying on a Sevier County first degree murder conviction and

on a Georgia

aggravated assault conviction. The trail court further instructed the jury that in order
to show the existence

of the aggra

vating circumst

ance for Delling

er, the State

was r elying on a Sevier C ounty fir

st degree murder conviction. Thereafter the trial court gave the following instruction: Members of the Jury, the court has read to you the aggravating circumstances which the law

re quires you to consider if you find bey ond a reasonable doubt that the evidence w a s-40-

established. You shall not take account of any other agg ravating facts or circumstances as the basis for decidin

g whether the de

athpen alty would be

appropriate pun

ishment in this

case. As support for their proposition, Appellants rely on Lowe v. State
, 805 S.W.2d 368 (Tenn. 1991). However, Lowe

is cle arly di stin guish able f rom th is cas e. In Lowe
, the Tennessee Sup reme Courtheld that the trial court erred when it instructed the jury pursuant to a habitual criminal

statute that “a judgment of conviction of any per

son under the same

name as that of the def

endant is prima facie evidence that the identity of such person is the same as th e defendant” and defined the term “prima facie” to m ean that the evide

nce “is to be take

n as an establishe

d fact unless and u

ntil it is overturned

or rebutted by pr

oof.” Id. at 371 . The supreme court held that the trial court erred because its instruction impermissibly shifted the burden of proof to the defendant. Id. In this case, nothing in the trial court’s instructions shifted the burden of proving identity to Appellants. The trial
court never informed t

he jury that

it could consid

er th e fact that Appellants were named in the judgements

of conviction fro

m the prior case

s as prima

facie evidence that they had in fact been convicted of the named offenses. To the contrary, the trial court clearly informed the jury that the Statehad the burden of proving the existence of the aggravating circumstance beyond

a reasonable doubt. Thus, the jury was clearly aw are that in order to prove that the aggra vating ci rcumstance existed, the State hadto establish beyond a reasonable doubt that Appellants were the people who hadbeen convicted o

f the prior felon

ies involving viole

nce against the

person. This issue has no merit.

XXVIII. PROOF O F APPELLANTS’

IDENTITIES Appellants

contend that th

e Stat e failed to prove

the existence of th

e aggravati

ng factor in this case beyond a

reasonable doubt. Specifically, Appellants contend that the State failed to prove that they were the same individuals who were named in the judgments of convic tion for the prior felonies. We disagree. During the sentencing hearing, Scott Greene, Assistant District Attorney General for Sevier Cou nty, testified that he was present in the Criminal Court of Sevier County on February 24, 1993. Greenethen testified that he was acquainted with James Dellinger and he identified Dellinger on the record. Greene subsequently identified a judgment of conviction for first degree murder in Sevier County case 5035. Greene testified that he had prepared the judgment form and the form had been signed by Judge Rex Hen

ry Ogle. Gre

en then testified that the defendant who was named in the judgment form was James Dellinger, the individual whom he had just identified. Shortly thereafter, the judgment of conviction was admitted into evidence. Greenalso testified that he was acquainted with Gary Sutton, and he identified Sutton on the record. Green then identified a document dated February 24, 1993, a s a judgment of

conviction for first degree murder in Sevier County case 5033. Gree ne testified that

he had also prepar

ed this judgment form and this form had likewise been signed by Jud ge Rex Henry Ogle. Green then testified that the defendant who was named in the judgment form was Gary Way ne Sutton. Shortly thereafter, the judgment of conviction was admitted into evidence. Anthony Rollins of

the Cobb County, Georgia Sheriff’s Department subsequently identified

somedocuments pertaining to indictment number 82-2313. Rollins testified that the name of the person identified in the records was Gary Way ne Sutton and that

the records included a photograph30 In support of his propos

ition t hat the State f ailed t o establi sh beyond a r

easonable doubt that

he was t he same individual

who was convicted of first degree murder in Sevier C ounty, S utton cites State v. Rober

t Will iams , No. 03C01-9302-CR-00050,1996 WL 146696, at *4–5 (Tenn. Crim. Ap p., at Knoxville, April 2, 1996), in which thi s Court held that the S tate f

ailed t o establi sh beyond a r

easonable doubt that

the defe ndant had pr

eviousl y been convi

cted of violent felonies when the State simp ly admitte d judgments

of convictions f

or prior feloni

es committed by an i

ndividual with the same n ame as the d efendant. T his case is distingu ishable from Williams because in addition to the judgment of convict ion, th e State i ntroduced t

he test imony of Greene in wh

ich he he identi

fied Sut ton and then stat

ed that he had
prepare d the j udgment

form.

-41- androlled fingerprint impressions of Gary Way ne Sutton. The documen

ts were then admit

ted into evidence. One of the documents is a judgment of conviction which indicates that Gary Deway ne Sutton had entered a guilty plea to the charge of aggravated

assault as charged in indictment number 82-2313. CrimeScene Technician Larry Munc y testified that he had previously prepared a card that containedthe fingerprints of Appellant Gary Wayn e Sutton. Muncy then testified that he had compared the fingerprint card that he had prepared with the fingerprint card obtained from the Cobb County Sheriff’s Department and he had concluded that the fingerprints on both cards were from the same individual. We conclude that

the above evidence is sufficient to establish beyond a reasonable doubt that bothAppellants

had previously

been convicted o

f felonies involvin

g violence to

the person. Firs

t, the evidence was clearly sufficient to establish beyond a reasonable doubt that Appellant Dellinger hadpreviously been

convicted of fir

st degree murde

r inSevier County. Greene identified Dellinger, identified the judgment of conviction that he had prepared which showed that James Dellinger had been convicted of first degree murder in Sevier County, and testified that Appellant Dellinger was the same James Dellinger named in the judgment

of conviction. Second, the evidence was sufficient
to establish bey

ond a reasonable

doubt that Appella

nt Sutton had previo

usly been c

onvicted of first degree murder in Sevier Co

unty. Gree

ne identified Sutto

n, identifie

d the ju dgment of conviction that he had prepared which showed that Gary Way ne Sutton had been con

victed of first

degree murder, andtestified that the def

endant who was named in the judgment form was Gary Way ne Sutton. Appellant Sutton is correct t hat Greene did not specifically testify that Appellant Sutton was the

sameGary Way

ne Sutton named in the

judgment of conv

iction. However,

it is obvio us from Greene’s prior identifica

tion of Appellant G

ary Su tton, his testimony that he was present in the Criminal Court of Sevier County on February 24, 1993; his testimony that he had prepared the judgment of conviction, and his testimony that the defenda

nt named in

the judgment of conviction

was Gary Wayne Sutton that Greene wa s indicating that Appellant Sutton is the same individual that

wa s nam ed i n th e ju dgme nt o f con vic tio n fo r fi rst degr ee m urd er i n Se vie r Co unt y. 30 Th ird, th e evidence was clearly

sufficient to esta

blish beyond

a reasonable

d oubt that Appellant Sutton had previously

been convicted of aggravated assault. The State introduced the judgment of conviction andMuncy testified that he had exam ined the fingerprints and determined that the individual convicted of ag

gravated assa

ult was Appellant Su

tton. This issue has n

o merit.

XXIX. INSTRUCTION ON REASONABLE DOUBT DURING SENTENCING Appellants

contend that the tr

ial court erred

when it inst

ructed the j ury about re

asonable doubt during the sentencing phase of trial. We disagree.-42-

In its charge to the jury during the sentencing phase, the trial court instructed the jury that The burden of proof is upon the state to prove any statutory ag

gravating circumstance

or circumstances beyond a reasonable doubt. A reasonable doubt is a doubt based upon

reasonand common sense after careful and impartial consideration of

all the evidence

in this case, and is an inability after such investigation to let the mind rest easily

. It is not necessary

that the aggr

avating cir

cum stance or circumstances be proved beyond all possible doubt, as absolute certainty is not demanded by the law. A reasonable doubt is just that—a doubt that is reasonable after an ex amina tion of all the facts of this case.

Appellants

contend that this charge was improper in that the us e of the phrase “ let the mind rest easi ly” violated their rig

ht to due process b

ecause the fact that the phr

ase is not qualifie

d or otherwise explained makes the

instruction imperm

issibly vag

ue and ambiguous

. Tennessee courts have repeatedly upheld the use of the phr ase “ let the min d res t ea sil y” in instructions about reasonable doubt. In Statev. Bush , 942 S.W.2d 489 (Tenn. 1997), the Tennessee Supreme Court held

that the trial cour

t did not err when it

instructed the jur

y that Reasonable

doubt is that

doubt engender

ed by an inve

stigation of all the proof in the case and an inability, after such investigation, to let the mi nd res t easily as to the certainty of g uilt. Reasonable doubt does not mean a captiou

s, possible, or imag

inary doubt.

Absolute certainty of guilt is not demande d by the law to convict of any criminal charge, but

moral certainty is required, and this certainty

is requi r edas to every element of proof necessary to constitute the offense. Id. at 520–21. Similarly, in State v. Nichols , 877 S.W.2d 722 (Tenn. 1994), the suprem e court held that the trial court did not err when it instructed the ju

ry that it must

find proof “bey

ond a reasonable doubt” and be convinced to a “moral certainty” of the existence of the aggravating circumstances and of the fact that they outweighed the mitigating circumstance s in conjunction with an instruction that “[r]easonable

doubt is that doubt engendered by an investigation

of all the proof in the case and an ina bil ity, after such investigation, to let the mind rest easily upon the certainty of y our verdict.” Id.
at 734. The supreme court stated that “[t]he con text in which the instr uction was given

clearly conveyed the jury’s responsibility to decide the verdict based on the facts and the law.” Id. Further, in Pettyjohn v. Sta

te , 885 S.W.2d 364 (Tenn. Crim. App. 1994), this Court held that the trial court did not err when it i

nstructed the jur

y that Reasonable

doubt is that doubt en

gendered by

an in v estigation of all the proof in the case and

an inability, after

such investigati

on, to let the mind re

st easily as to the certainty of guilt. Reasonable doubt does not mean a captiou

s, possible, or

imaginary

doubt. Absolute ce

rtainty of g

uilt is not demanded by the law to convict of any criminal charge, but moral certainty is required, and this certainty is required as t o every proposition of proof to constitute the offence [sic]. It is not necessary

that e ach partic

ular fact should be proved beyond a reasonable

doubt[ ] [i]f enough fa

cts are proved to satisfy the jury be yond a31 In a related is sue, Appellant s contend that

the t rial court erred when it ref used to cons

ider the ir moti on challenging the validity of this jury ins truction even though the m otion was no t filed unti l after the trial cour t had conducted a hearing on th eir motion for

a new trial

and denied t

he motion f

or a new trial. However, Rule 33(b) of the Tennessee Rules of Criminal Procedure cl

early s tates t hat a moti

on for a new

trial must be i

n writi ng, must be made within thirty

days of sent

encing, and amendment s to the moti

on shall be allowed un til the day of the hearing on the motion. Thus, the trial co urt did not er r when it refused to conside r the motion th at was fil ed after the hearing on the motion for a new trial. In any ca se, Appe llants’ challenge to the jury charge has no mer it.

-43- reasonable

dou bt, of al l th e fac ts n eces sar y t o c onstitute the crime charged. Before a verdict of guilty is justified that [sic] circumstances taken together
must be of a conclusiv

e nat ure and tendenc

y, leading

on the whole to satisfactory

conclusion and producing in eff ect a “moral certainty” that the defenda nt committe

d the offe nce [sic]. Id. at 365–66. We conclude that, just like the instructions in Bush
, Nichols , and Pettyjohn , the instruction in this case

was proper because it sufficiently informed the jury abo

ut the standard ag

ainst which it

was to examine the evidence. Contrary to Appellants’ contention, the fact that the phrase “let the mind rest easily” was not qu alified in this case by something such as “to the certainty as to the establishment

of the aggravating factor” does not make t he stateme

nt impermissibly vague. As stated by the supreme court in Bush , “[i]n o rder to m eet the requirements of due process, the jury instructions must be examined as a whole, without considering particular phrases out of context.” 942 S.W.2d at 521. It i

s absolutely

obvious that when th

e phrase “let th

e mind rest easi

ly” is considered

in context, it is referring to the jury’s determination, based on a consideration of all the evidence, that the State h as satis fied its burden of establishing the existence of the aggravating circumstancea nd es tablishing that the aggravating circumstance outweighs the mitigating circumstances beyond a re asonable doubt. In short, the trial court’s instruction on reasonable doubt properly reflects the evidentiary certainty required by pr

inciples of due process. This issuehas no merit. 31

XXX. FAILURE TO IN STRUCT THE JURY THAT APPELLANTS ARE HUMAN BE INGS Appellants

contend that their

death sentences must

be vacated because the trial court failed
to instruct the jury that Appellants are human beings and that the jury can consider that fa

ct as a mitigating circumstance. We disagree. In support of

their argument

that their death se

ntences must be va

cated because

the trial court failedto instruct the jury that they are human being s, Appellan ts citeTennessee Code Annotated section 39-13-20

4, which states in r

elevant part, The trial judge shall also include in the instructions for the jury to weigh and consider any mitigating circumstances raised by the evidenc e at either t he guilt or s entencing he aring, or both, which shall

include, but not be limited to, those circumstances set forth in subsection (j). No distinction shall

be made between mitigating circumstances as set forth in subsection (j) and those otherwise raised by the evidence which are specifically requested by either the
state or t he defense to be instructed to the jury. These instructions and the manner o f-44-

arriving at a sentence shall be given in the or al charge an d in writing to the j ury for its deliberations. Tenn. Code Ann. § 39-13- 204(e)(1) (199 1). Appellants ar gue that becau

se the fact that th

eyare human beings was raised by the ev idence, the trial court was r equired to gra

nt their request to instruct the jury

that Appellants ar

e human beings. The Tennessee Su preme Court has he ld that the above st

atute requires a

trial court to “inst ruct the jury on nonstatutory mitigating circ umstances when raised by the evidence and specifically

requested by

eith er the Sta

te or the defendant.” State v. Odom , 928 S.W.2d 18, 30 (Tenn. 1996). However,

the supreme

court has also stated that the right to have the jury instructed on nonstatutory

mitigating circ

umstances is

statutory rather

than constitutiona

l in nature and thus
, the failure to instruct the jury on nonstatutory mitigating circumstanc es when raised by the evidence is subject to harmless error analysis. State v. Hodges , 944 S.W.2d 346, 351–52 (Tenn. 1997). The supreme court also stated that

“in determining whether instruct ions are errone

ous, this Court must review the charge in

its entirety and read it as a whole.” Id. at 352. “A charge should be considered prejudicially erroneous

if it fails to fairly submit the legal issues or if it misleads the jury as to the applicable

law.” Id. Compare
, Brimmer v. State
, 29 S.W.3d 497, 520-21 (Tenn. Crim. App. 1998). Assuming arguendo that the trial court erred when it failed to instruct the jury about the obvious fact that Ap pellants a re human bei ngs , it is abso lutely clear that any such er ror was harmless. The reco rd indicates that the trial court instru

cted the jury

to consider, but no

t limit its consideration, to twenty mitigating circumstances for Appellant Dellinger and fourteen mitigating circum stances for Appellant Sutton. Th e trial court then

instructed the jur

y that it could

also consider Any

other mitigating

factor which is

raised by the evidence produced by either the prosecution or

defense at either the guilty or sentencing hea ring; that is, you shall consider any aspect

of the defendant’s character or record, or any aspect of the circumstances of the offense favorable to the defendant which is supported by the evide nce.

. . . . No distinction shall be made between mitigating cir cumstances listed above and other mitigating circumstances raised by the evidence a lthough not specifically listed. It is clear t hat the tri al court’s f ailure to i nstruct th e jury that Appe llants are h uman beings did not result in an in

struction that “fa

ils to fairly

submit the legal issues” or

“misleads the jury as
to the applicable law.” Clearly, the trial court’s instruction did not prevent the jury from considering the obvious and readily apparent fact that Appellants are human being s. Indee d, the instr

uction expressly informed the jury that

it could consider anything to be a mitigating circumstance if it was raisedby the evidence. Further, the very nature of every

one of the specific mitigating circumstances th at were listed necessarily encompassed the fact that Appellants ar e human beings. In s hort, w e conclude that even if the trial court erred when it fa

iled to instruct the

jury that App

ellants are human beings, it is absolutely

clear that any

such error was h

arml ess. See Tenn. R. Crim. P. 52(a ). This issue has no merit.

XXXI. FAILURE TO A NSWER THE JURY’S QUESTIO N32 Appellan ts clai m th at this al

leged error was compounded by t he trial court’s fa

ilure to i nform the jury

that life sentences would be i mposed in t

his cas e if t

he jury f ailed t o reach a un

animou s verdict. However, the Tennessee Supreme Court has e xpressly reje cted the argu ment that a jury shoul d be informed of the result of a non-unanimous verdict. See State v.

Cribbs , 967 S.W.2d 773 , 796 (Tenn. 1998).

-45- Appellants

contend that the trial court erred when it failed to answer the jury’s question about whether life sentences in this case woul d run co ncurrently with or consecutively to life se ntences imposed for the Sev

ier County fi

rst degree mur

der convictions. 32 We disagree. At some point during deliberations in the sentencing phase, the jury submitted the following written question to

the trial court: If James Dellinger and

Gary Sutton w

ere given life

in prison from Sevier County and they

are giv en l ife in prison in Blount County—will the prison terms be consecutive and/or
concurrent. The trial court gave the

following writte

n response: “You s

hould concern y

ourself with

the sentences in these cases only.” Appellants

have cited no authority for their proposition, and we conclude that the trial court acted properly. In State v. Smith , 857 S.W.2d 1 (Tenn. 1 993), the Tenness ee Supreme Court h

eld tha t th e tr ial cou rt a cte d pr ope rly w hen it r efus ed t o an swe r th e fol low ing q ues tio ns f rom the jur y: (1) Define life sentence; (2) Define consecutive and concurrent life terms and which would apply if a second lif

e sentence was given; (3) Whe n wo uld paro le a ppl y. Id. at 10–11. The supreme court stated that the trial court’s ref usal to an swer the questions was proper because providi

ng a jury w

ith this sort of infor

mation could

result in death sentences that are basedon sheer specula

tion and on factor

s other than those e

numerated in the g

overning statute

s. Id.
at 11. Similarly, if the trial court had answered the jury’s question

in this case, this could have encouraged

the jury to base its decision on whether to impose death sentences on speculation about what may happen in the future rather than on the factors delineate d by the death penalty

statutes. Thus, we conclude that

under Smith , the trial court properly refused to answer the jury’s question. This issue has no mer

it.

XXXII. WHETHER THE AG GRAVATING FA

CTOR APPLIED BY THE JURY IS A DUPLICATION OF THE CRIME Appellants conte

nd that their

death sentences are unconstitutional because the aggravating circumstanceapplied by the jury is a duplication of the offence for which they were convic ted. We disagree. Although Appellants’ argument is not entirely clear, they apparently contend that bec

ause the State used evidence of the Branam murder to show that they wer e the individuals who k illed Griffin, the State was precluded from relying on their convictions for the B ranam murder as the aggravating

circumstance upon which the death penalty was sought. As support for this proposition, Appellants

cite State v. Middlebrooks , 840 S.W.2d 317 (Tenn. 1992). This reliance is c

ompletely misguided. In Middlebrooks , the Tennessee Su preme Court held

that when a defendant

is convicted of first degree murder solely on t he b asis of felony

murder, the defe

ndant cannot be se

ntenced to33 We note that bec ause the jud gments in this cas e do not ex pressly indicate whether the death sentences are to be ser ved concurrently with or consecutively to the previously imposed sentences, the death s entences are to ru n concurrently with the other s entences. Tenn. R. Crim. P. 32(c)(2).

-46- death because that same murder was committed during the commission, the attempt to commit, or the fleeing after the commission or attempt to commit certain felonies. Id. at 347. First, Appe llants

were convicted of premeditated and delib erate first degree murde r, not felon y murde r. In addition, Appellants were convicted in this case of the

Griffin murder,

not the Branam mu

rder. Thus, it i s obvious that the aggravating circumstance in this case (the convictions for the Branam murder) was
nota duplication of th

e crime for whic

h Appellants were

convicted in this

case (the Griffin murder). This issue has no mer

it.

XXXIII. DOUBLE JEOPARDY Appellants

contend that

the imposition of the death sentence in this case violates principles of double jeopardy. We conclude that Appellants have waived this issue. Appellants

have failed to support their co nt ention with any argument other than a one
sentence conclusory statement that their death sentences viol ate pr incip les of doubl e jeop ardy. In addition, Appellants have fa ile d to cite to the rec

ord and they

have failed to ci

te any autho

rity in support of their claim. Thus, this issue is waived. Tenn. R. Ct. Crim. App. 10(b).

XXXIV. FAILURE TO CONDUCT AN ADDITIONAL SENTENCING HEARING Appellants

contend that the trial court erred when it failed to hold a separate sentencing hearing to determine whether their death sentences should be served concur rent ly with or consecutively to their life sentences for the Branam murde r. We disagree. Appellants

hav e not cited any authority that would support their proposition that the trial
court was required to c

onduct a separate sentencing

hearing. Indeed, the statutes that govern capital sentencing do notprovide for such a hearing. Quite simply, nothing in the law of this State required the trial court to cond

uct a separate s

entencing hea

ring and thus, the

court did not err i

n failing to

do so. This issue has no

merit. 33

XXXV. SENTENCE REVIE W PURSUANT TO TENNE SSEE CODE ANNOTATED SECTION 39-13-206(c)(1)(1997). In all cases involving the sentence of death Tennessee Code An notated Se ction 39-13- 206(c)(1)(1997) requires that the appellate courts determine whether: (A) The sentence of death was imposed in an arbitrary fashion:

(B) The evidence supports the jury’s finding of stat utoryaggravating circumstance or circumstances;

(C) The evidence suppor ts the jury’s

f ind ing that the aggravating circumstance or circumstances outweigh any mitigating circumstanc es; and-47-

(D) The sentence o f death is excessive or dispr oportionate to the

penalty imposed in similar cases, co

nsidering both the

nature of the cr

ime and the defen

dant.

Initially we note that there

is nothing in this re

cord to indicate t

hat the sentence

of death was imposed arbitrarily. All appropriate statutory se ntencing procedures were utilized and the jury was properly instructed concerning how to reach its decision as to punishment. Secondly, as discussed previously

herein, the evide

nce is amply

sufficient to supp

ort the jury ’s finding that th e appellants hadprevious convictions involving violen ce thereby establishing the aggravating circums tance found
at Tennessee Code Annotated Section 39-13-204(i)(2). Thirdly, the mitigating evidence consisted largely of testimony concerning the appellants’ trou bled lives, injuries, an

d personal setbac

ks. Contrasted with this was proof that the appellants had previously been convicted of a violent felony involving a death. The jury was justified in determining the aggravating circumstance outweighed the mitigating proof offered in this case. Fin all y, we discuss whethe r the sentence of

death is proportio

nal in this case when compared
to similar cases.This analysis is designed to identify aberr ant, arbitrary

or capricious sentences by determining whether the deat h penalty in a given case is “disproportionate to the punishment imposed on others convicted of the same crime.” State v. Bland , 958 S.W.2d at 662 (Tenn. 1997). If a case is “plainl

y lacking in

circumstances c

onsistent with those

in cases where t

he death penalty has been imposed,” then the sentence is disproportionate. Id. at 668. However, a sentence of de

ath is not disproportiona t e merely because the circumstances of the off ense are similar to those of another offense for which the defendant has received a life sentence. Id. at 665. “Since no crimes

are precisely alike, the pre cedent seeking method of review is not a rigid, mechanical formula.” Statev. Burns , 979 S.W.2d 276, 283 (Tenn. 1998). Instead, we consider numerous factors regarding the offense

itself: (1) the means of death; (2) the manner of death; (3) the motivation for the kil ling; (4) the place of death; (5) the victim’s age, physical and psyc hological condition; (6) the absence

or presence of

pr emeditation; (7) the absence or presence of provocation; (8) the absence or presenc e of justification; and (9) the injury to and effects on nondecedent victims. Bland
, 95 8 S.W.2d at 667. We also cons ider numerous fa

ctors about the de

fendant: (1) age, race

and gender; (2) prior criminal re

cord; (3) mental,

emotional, or

physical condition; (4) role in the murder; (5)
remorse; (6) cooperation

with authorities; (7) the defendant’s knowledge of a victim’s helplessn

ess; and (8) the defendant’s potential for rehabilitation. Id. The evidence in this c

ase showe d that after an afternoon spent drinking with Griffin, Appellantsb ecame angry with Griffin, fought with him, and abandone d him on the side o f a high way. After a subsequent unsuccessful attempt to obtain Griffin’ s release from ja il, Appellants
set fire to Griffin’s residence and then obtained a shotgun. Appel

lants then obtained Gri

ffin’s release from jail, took him to a re

motearea, and shot him in the back of the head with a shotgun. Appellants have continued to deny all respon sibility for Griffin’s murder and they have failed to show any

remorse for the senseless and unprovoked killing of their supposed friend. The jury sentenced the Appellants

to death after it found oneaggravating circumstance: th

at the Appellants

had previously been convicted of felonies involving the use of violence to the person. In State v. Cribbs , 967 S.W.2 d 773 (Tenn. 1998), the defendant killed a woman after the

woman and her

husband came home

while the defend

ant and an accom

plice were burg

larizing their home. The defendant shot the husband in the s hould er, causing him to lose consciousness. The-48-

defendant then killed the wife by placing a shotgun against her headand firing. The

jury imposed the death sentence

after it found two

aggravating

circumstances: that

the defendant wa

s previously convi ctedof one or more felonies involving violence to the person and that the murder was committed while the defendant was engaged in committing or was attempting to c omm it a bur glar y. The supreme court

held that the second aggr avating circum

stance was inval

id, but upheld the de

ath
sentence based on the agg ravating circ

umstance that the

defendant had pr

eviously been convicted of felonies involving violence to the person. In State v. Hurley , 876 S.W.2d 57 (Tenn. 1993), the defendant killed the victim by shooting him once in the head.

The jury fo

und the defendan

t guilty of premeditated

murder and imposed the
sentence of death upon finding one aggravating circumstance: that the murder wa s committed while the defendant was engaged in committing a robbery . The supreme cou rt upheld the deat

h sentence. In State v. Howell

, 868 S.W.2d 238 (Tenn. 1993), the twenty-seven-ye ar-old defendant murdered the clerk of a convenience store by shooting him once

in the head during the course of a rob bery. The defendant

did not cooperate

with the authorities and he did not express remorse. The defendant presented evide

nce that he had be

en diagnosed as

a sl ow learne r, had been plac ed in special education classe

s, and had droppe

d out of school in the e ighth grade. The jury found the defendant guilty of first degree

f elony murder and sentenced him to death upon finding two aggravating

circumstances: that the defendant had previously been convicted of f elonies involving the use of violence to

the person, and the murder was committed while the defendant was engaged in committing a felony. The supreme court found that the jury ’s reliance upon t he felony murder aggravating

circumstance was invalid, but upheld the death sentenc e base d on the aggravating circumstancethat th e defendant had previously been convicted of felonies involving the use of violence to the person. I n State v. Van Tran , 864 S.W.2d 465 (Tenn. 1993), the defe ndant k illed a seventy-f our-year -old victim in the cours e of a robbery. The victim had been shot once and was lying on the floor when the defendant shot her in the head. The defendant was age nineteen and had

no prior record. Mitigating evidence included thedefendant’s g ood work record

, cooperation wit

h law enfo rcem ent , rem ors e, an d ed ucat ion al p rob lem s. T he j ury imposed the death sentence after finding one aggrava

ting circumstan

ce: that the murde

r was especially

heinous, atrocious, or cr

uel in that it involved torture or serious physical abuse beyond tha t necessar y to produce death. The supreme court upheld the death sentence. In State v. Smith , 695 S.W.2d 954 (Tenn. 1985), the defendant robbed and killed a man by shooting him twice. The defendant confessed to the police. The jury sentence d the defendant to death after it found tha

t one aggrava

ting circumstan

ce: th at t he defendant committed the murder during the perpetration of a robbery. The supreme court upheld the death sentence. In State v. Caldwell , 671 S.W.2d 459 (Tenn. 1984 ), the defendant and the victim were engaged in a drinki ng bout that erupted into violence when the victim threw whiskey into the defendant’s face. The defendant th en shot the victim

twice in the back of the head with a shotgun. The jury sentenced the

defendant to death after

it found that one aggravating circumstance: that the defendant had been previously convicted of felonies involving the use of violence to the person. The supreme court upheld the death sentence. These cases, although not identical, contain numerous similarities to both the offense and the defendants

before us. As is th

e case here, only one

aggravating circumstance was validly considered-49-

in all six of the above cases and in three of the cases, the aggrava ting circumstance

was the same one that the jury fou

nd was present in t

his case. In t

his case, Griffi

n was shot once in th

e head. In a

ll six of the above cas

es, the victim was only

shot once or twice

and in five of the c

ases, the victim was shotin the head. Just as G riffin was shot wh

ile he was unarmed, the victims in all six of the above

cases were apparent

ly also unar

med. Just as there wa

s evidence that A

ppellantshave a low IQ level, ther e was eviden ce that the defendants in Howell and Van Tranhad impaired mental abilities or educational problems. Like the defendant in Howell and unlike the defendant in Van Tran
, Appellants

have never accepted responsibility or expressed remorse for their crime. Finally, the supreme court upheld the death penalty in all six of the above cases after finding that it was neither arbitrary nor disproportionate. After reviewing the c

ases discussed he

rein, and other c

ases not herein detailed, we conc lude that the penalty imposed by the jury in this case is not excessive or disproportionate

to the penalty

imposed for similar

crimes. This issue

has no merit.

XXXVI. CONCLUSION Based on the foregoing the judgment and sentence of the trial cour t is AFFIRMED.

___________________________________ JERRY L. SMITH, JUDGE