IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

February 5, 2002 Session

STATE OF TENNESSEE v. WILLIAM R. STEVENS 

Automatic Appeal from the Court of Criminal Appeals

 Criminal Court for Davidson County

No. 98-A-825 Hon. Steve Dozier, Judge

No. M1999-02067-SC-DDT-DD - Filed May 14, 2002 

The defendant was found guilty by a Davidson County jury of hiring eighteen year-old Corey

Milliken to murder his wife, Sandra Jean Stevens, and his mother-in-law, Myrtle Wilson. He was

also convicted of especially aggravated robbery. The jury found two aggravating circumstances:

(1) The defendant was previously convicted of one or more felonies, other than the present charge,

whose statutory elements involve the use of violence to the person, Tenn. Code Ann. § 39-13-

204(i)(2); and (2) the defendant employed another to commit the murders for the promise of

remuneration, Tenn. Code Ann. § 39-13-204(i)(4). Finding that the aggravating circumstances

outweighed the mitigating circumstances beyond a reasonable doubt, the jury sentenced the

defendant to death for the murder of each victim. On the especially aggravated robbery conviction,

the court sentenced the defendant to life without parole as a repeat violent offender with the sentence

to run consecutively to both death sentences. The Court of Criminal Appeals affirmed the

defendant’s convictions and sentences of death. On automatic appeal to this Court, we affirm and

hold as follows: (1) the trial court did not abuse its discretion in limiting the testimony of

defendant’s crime scene expert to his analysis of the evidence at the crime scene; (2) the trial court’s

exclusion of the testimony of Corey Milliken’s foster father regarding Milliken’s prior bad acts

constituted harmless error; (3) the trial court applied hearsay and other evidentiary rulings in an

unbiased and even-handed manner; and (4) the sentence of death is not disproportionate to the

sentence imposed in similar cases. For all other issues not specifically discussed in this opinion, we

agree with and affirm the judgment of the Court of Criminal Appeals.

Tenn. Code Ann. § 39-13-206(a)(1) Automatic Appeal; 

Judgment of the Court of Criminal Appeals Affirmed

WILLIAM M.BARKER,J., delivered the opinion of the court, in which FRANK F. DROWOTA,III, C.J.,

and E. RILEY ANDERSON and JANICE M. HOLDER, JJ., joined. ADOLPHO A. BIRCH, JR., J., filed a

concurring and dissenting opinion.
1

 It is undisputed that Milliken killed the victims. He pleaded guilty to first degree murder shortly before his

trial was set to begin and was sentenced to life imprisonment.

-2-

Brock Mehler and F. Michie Gibson, Nashville, Tennessee, for the appellant, William R. Stevens.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Jennifer

L. Smith, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee.

OPINION

FACTS

Guilt Phase

On December 22, 1997, police were dispatched to the defendant’s, William Richard

Stevens’s, mobile home in Nashville in response to a 911 call made by the defendant and eighteen

year-old Corey Milliken. When the police arrived, they found the murdered bodies of forty-five

year-old Sandra (Sandi) Jean Stevens, the defendant’s wife, and seventy-five year-old Myrtle

Wilson, the defendant’s mother-in-law. After further investigation, the police concluded that Corey

Milliken was hired by the defendant to kill the women and to make the murders look like they were

committed in furtherance of a burglary.1

The record reveals that the defendant and Milliken had known each other for approximately

one year. Milliken and his then fifteen year-old brother, Shawn Austin, lived with their mother and

step-father three trailers down from the defendant. Both boys often worked for the defendant,

assisting him in his job of putting underskirting on mobile homes. Austin testified at trial that his

brother had a close relationship with the defendant and that he and his brother spent a lot of their free

time at the defendant’s trailer. 

Austin testified that in the fall of 1997, the defendant approached both brothers and asked

them if they would kill the defendant’s ex-wife, Vickie Stevens. The defendant instructed them to

“get a rifle” and shoot her when she came out of her trailer. He told them that if she were dead, he

would get full custody of his then nine year-old son, John. He would also get “her car, her trailer

and her land.” 

However, around Thanksgiving, the defendant changed his mind and offered to pay Milliken

and Austin $2,500 apiece if they would instead kill his current wife, Sandi Stevens, and his motherin-law, Myrtle Wilson. The defendant and his wife were having marital problems, and he knew that

another divorce would “wipe him out.” He told the boys that he would get the money either from

the proceeds of Ms. Wilson’s life insurance policy or from the proceeds of a yard sale. Austin would

act as a “lookout,” while Milliken killed the victims in their trailer. The defendant preferred that the

victims be shot; however, if the boys could not find a gun with a silencer, Milliken was to kill them
-3-

using a knife. Austin eventually decided that he did not want to be the “lookout,” but agreed to

provide an alibi for the defendant. He would not be paid for this participation, and therefore the

entire $5,000 would be paid to Milliken. 

Although the defendant had not yet set a date for these murders, he took great pains in

planning and instructing Milliken on exactly how the murders were to take place. For instance, he

told Milliken to kill his mother-in-law first because his wife would not hear anything: she kept her

door shut and the fan running in her bedroom. He also told Milliken that on the eve of the murders,

the trailer would be unlocked, and the burglar alarm would not be set; as an extra precaution,

Milliken would be given a key to the trailer.

 The defendant further instructed that after Milliken killed the victims, he was to steal certain

items, including some of Mrs. Stevens’s jewelry, and then “destroy” the trailer to make it look like

a robbery had occurred. In fact, he took Milliken on a walk-through of the trailer, and he specified

which items were to be stolen, which items were to be “trashed,” and which items were to remain

untouched, such as “the TV and the dishes and [his] Star Trek collection.”

The defendant also instructed Milliken on how he was to get rid of the evidence. For

instance, Milliken was to take the stolen jewelry and put it in a bag. He would then throw the

murder weapon on top of a nearby school building and throw the bag of stolen items into the river.

Once all the evidence was disposed of, he would go to his girlfriend’s house to establish an alibi.

According to the defendant’s plan, on the morning of the murders, he and Austin would leave

together to go to work. Milliken would commit the crimes while they were gone. The defendant

told Austin that if he was questioned by the police, he was to tell them that he saw Mrs. Stevens

wave to them that morning as they left for work. The defendant also told the brothers that if

anybody got caught, “everybody was on their own.” Furthermore, he instructed them not to take lie

detector tests or “snitch on the other person.”

Finally, a few days before December 22, 1997, the defendant told the brothers that the

murders needed to be committed on the twenty-second. He explained that his ex-wife was going to

have back surgery at that time, and he would have his nine year-old son, John, staying with him.

John would act as another alibi. Milliken agreed to commit the murders on that date.

At approximately 4:45 on the morning of Monday, December 22, Austin went over to the

defendant’s trailer where the defendant and his young son were waiting for him. Milliken was still

asleep because he had stayed up late the night before after having had an argument with his mother

and step-father. Mrs. Stevens and Ms. Wilson were also still asleep in their rooms and did not see

the defendant and the two boys leave for work.
2

 On the day of his arrest, the defendant consented to a taped interrogation during which he stated that they

drove to New Johnsonville the morning of December 22. However, Shawn Austin testified that they drove to White

Bluff. In either case, both individuals consistently stated that it took approxima tely an hour and a half to reach their

destination.

-4-

The threesome drove approximately ninety miles to their jobsite at New Johnsonville,2

stopping for breakfast along the way. After they arrived, the defendant decided that it was too

muddy to work on the trailer, so they returned home, arriving back at the trailer park at around 8:30

a.m.

In a taped statement given on the day of his arrest, the defendant said that when he walked

up to the front door of his trailer, he observed that the door was ajar. When he stepped inside, he

noticed that the Christmas tree was lying on its side and that “stuff was laying all over,” and he

“knew something was wrong.” He looked towards his bedroom, saw his wife’s leg “laying across

the bed,” and immediately assumed that both his wife and his mother-in-law were dead. The

defendant said that he never went into either bedroom to actually check on the women, nor did he

ever see his mother-in-law’s body. Instead, he just “ran out” with his son and Austin and went to

Austin’s trailer to call the police. 

Officers Gary Clements and John Donnelly of the Metro Police Department were the first

officers to arrive at the crime scene. After entering the trailer and finding the two bodies, the officers

sealed off the crime scene and then began canvassing the area for witnesses and searching the

grounds for physical evidence. Officer Clements soon met Corey Milliken in his trailer and started

talking to him. During their conversation, he noticed blood spots on Milliken’s t-shirt, blood under

his nails, and fresh gouge marks on his cheek and wrist. Officer Clements eventually turned

Milliken over to detectives for further questioning. Milliken confessed to committing the murders

by himself and provided a detailed description of the murders and the crime scene.

Continuing his search for evidence, Officer Clements soon discovered that the underpinning

on a nearby trailer had been pulled loose. When he looked under that trailer, he found a green

canvas bag. The contents of the bag included the following: a white, blood-stained Miami Dolphins

t-shirt; several pieces of jewelry; an eight-inch long butcher knife or kitchen knife; prescription

medication lying loosely in the bag; a thirty-five millimeter camera; and a black camera bag. 

Detectives Pat Postiglione and Al Gray, members of the Metro Police Department assigned

to investigate the homicides, found no sign of forced entry. In fact, aside from the appearance of a

struggle “in and about the bed area” in Ms. Wilson’s room, the crime scene looked, for the most part,

“staged.” For instance, Detective Gray explained that dresser drawers were pulled open, but nothing

in them appeared to be disturbed; clothes were taken out of the closet and dumped onto the floor

while still on their hangers; and the Christmas presents were unwrapped, but nothing appeared to

have been stolen. Even the Christmas tree looked as if it were “gently pushed over,” because none

of the glass ornaments were broken or scattered on the floor, which would most likely have
3

 The evidence is undisputed that Mrs. Stevens normally slept in the nude.

4

 Serology tests determined that the blood on Sandi Stevens’s body was consistent with that of Myrtle Wilson.

5

 Several law enforcement officers testified that it is standard procedure that when female homicide victims

are found nude with genitals “displayed,” the crimes are to be initially investigated as possible sex-related crimes.

Consequently, oral, anal, and vaginal swabs were taken from each victim, and a rape suspect kit was performed on

Corey Milliken. Serology tests disclosed no sperm on any of the swabs taken from Ms. Wilson. However, sperm

consistent with the DNA of the defendant was detected on the vaginal swab taken from Mrs. Stevens.

-5-

happened had there been a struggle. He also testified that certain rooms, which “looked like . . . very

valuable area[s] of the trailer,” remained undisturbed.

Both victims were found lying in their beds. Ms. Wilson was wearing a nightgown, which

had been pulled above her waist. Her underwear was on the floor. There was a substantial amount

of blood on her body, on the bed, and on several items in the room. Dr. Emily Ward, a pathologist

with the Davidson County Medical Examiner’s Office, performed autopsies on the victims. Her

examination of Ms. Wilson revealed that she died from stab wounds and manual strangulation.

Although her stab wounds were relatively superficial and did not pierce any vital organs, they

resulted in a considerable amount of lost blood. 

Mrs. Stevens was completely nude3 and left in a “displayed” position, that is, lying on her

back with her legs spread apart. She died as a result of ligature strangulation. However, there was

blood on her knees, indicating that the murderer had killed Ms. Wilson first and then transferred

some blood onto Mrs. Stevens.4

 There were also pornographic magazines placed around her body,

as well as a photo album containing nude photos of the victim, presumably taken by the defendant

during their marriage. There was no evidence of blood on these items.

Dr. Ward’s examination of Mrs. Stevens revealed a small, superficial tear in her vagina. Dr.

Ward testified that she thought it was a post-mortem change in the skin, which likely occurred while

the body was being moved for examination. Although she conceded on cross-examination that the

decedent could have been sexually assaulted after death, she did not believe this to be the case

because there was no bruising, swelling, or hemorrhaging around the tear.5

The State introduced the testimony of Chris Holman, a friend of Milliken’s, as additional

evidence that the defendant hired Milliken to commit these crimes. Mr. Holman testified that around

the end of October, Milliken approached him and asked him if he knew where Milliken could get

a gun with a silencer. Mr. Holman told him that he “wasn’t into that anymore.” Three weeks prior

to the murder, Milliken approached Mr. Holman again and asked if he would help murder the

defendant’s wife and mother-in-law. He told Mr. Holman that they would go into the house and

“make it look like it was a burglary,” and that he would “split even” the $5,000 he was supposed to

be paid. Mr. Holman refused. 
-6-

Lane Locke, an inmate at the West Tennessee State Penitentiary, testified that he was the

defendant’s cellmate at the DavidsonCountyCriminal Justice Center for approximately three weeks.

During that time, the defendant, who knew that Locke was formerly a police officer and a certified

paralegal, discussed his case at great length because the defendant wanted to benefit from Locke’s

“legal knowledge.” The defendant described his marital problems and told Locke that he did not

want to go through another divorce because he had “his life in order and felt like . . . a divorce would

wipe him out.” The defendant also discussed his relationship with Milliken, describing him as a

“big, dumb kid” who was a source of conflict between him and his wife. Based on what the

defendant told him, Locke stated that it appeared that the defendant “led Corey around quite a bit.”

Locke also testified that the defendant did not want to attend his wife’s funeral and that he

never showed any remorse or emotion over his wife’s death. However, Locke testified that the

defendant was very upset when he returned from his preliminary hearing. He quoted the defendant

as saying, “Shawn [Austin] is just as guilty as the rest of us, and he’s the only one that’s gonna get

away with it. I can’t believe those idiots thought I was gonna pay them.” 

Michael Street, another inmate at the Criminal Justice Center, testified that the defendant

asked him if he would “intimidate Corey Milliken or have him killed in one form or fashion,”

because, as the defendant said, “Corey was the only person that could put [him] in prison for the rest

of [his] life.” The defendant told Street that he had hired another inmate to “try to do it,” but the plan

fell through. Street refused the defendant’s request.

The State also introduced letters between the defendant and Charles Randle, another inmate,

in which the defendant offered Randle money to harm or intimidate Milliken in jail. Evidence was

introduced that the defendant had obtained several hundred dollars in money orders made payable

to Charles Randle. 

The State also presented evidence indicating that the defendant was taking money from his

mother-in-law, Myrtle Wilson. Ms. Wilson’s son, Larry Wilson, testified that for over three years

before the murders were committed, he had been investing and otherwise monitoring her finances

totaling $83,000. A month before she was killed, his mother expressed concern that she “didn’t have

the funds that she thought she should.” Shortly after the murders, Mr. Wilson was examining his

mother’s financial information, and he discovered a check written on June 10, 1997, made payable

to the defendant for four thousand dollars. He explained that the check was questionable for several

reasons: first, the check was printed rather than handwritten, and his mother never printed her

checks; second, the printing was “way too clear” to be his mother’s because she had grown “feeble”

and her hand was “rather shaky” when she wrote; and finally, Ms. Wilson had recorded the amount

for that check as forty dollars, not four thousand. 

Additionally, Doris Trott, the victims’ hairdresser since 1992, testified to several

conversations she had with Ms. Wilson early in the fall of 1997, during which Ms. Wilson

complained that the defendant never repaid her any of the money that he often borrowed. Later that
6

 On the especially aggravated robbery conviction, the court sentenced the defendant to life imprisonment

without parole as a repeat violent offender, with the sentence consecutive to both death sentences.

-7-

fall, Ms. Wilson told Ms. Trott that the defendant had asked her to sign a ten-thousand dollar life

insurance policy, which she refused to do. 

Evidence was also presented regarding the marital problems that the defendant and Mrs.

Stevens were having. In Mrs. Stevens’s diary, she described her unhappiness in the marriage and

her increasing distrust of her husband’s fidelity. Although she still loved the defendant, she wanted

to “get out” of the marriage. William Byers, Sandi Stevens’s ex-husband, testified that he talked to

her shortly before she died, and she told him that the defendant explicitly refused to give her a

divorce. She also expressed her dislike for Corey Milliken and described him as the source of many

heated arguments between the defendant and herself. She wrote that he was the “wedge” driving her

and the defendant apart.

The defense presented evidence of Corey Milliken’s sexual infatuation with Sandi Stevens.

Shawn Austin testified that his brother told him that the defendant had shown him pictures of his

wife in lingerie and in the nude, and that the defendant told Milliken that she wanted to have sex

with both of them at the same time. 

The defense theory was that Milliken committed sexual murder as an act of aggression

precipitated by an argument with his mother and step-father the night before the crimes. Milliken’s

step-father, Billy Stevens (unrelated to the defendant), testified that he and Milliken did argue the

night before the crimes, and that at one point he “grabbed” Milliken after Milliken “got smart with

his mother.” Milliken ran out of the house, but had returned home by the time Mr. Stevens left for

work early the next morning. Mr. Stevens also testified that he and Milliken had argued in the past,

and that on several occasions Milliken had run out of the house following an argument.

As evidence that these murders involved a sexual component, the defense introduced the

testimony of crime scene expert, Gregg McCrary. Mr. McCrary testified that the display of

pornographic magazines around Mrs. Stevens could “best be interpreted as an attempt to further

humiliate or degrade” the victim, which “goes to the motive of a sex crime.” He defined a sex crime

as primarily a crime of violence in which the perpetrator uses sex to punish, humiliate, and degrade

the victim. 

Based upon the proof as summarized above, the jury found the defendant guilty of two counts

of premeditated first degree murder and one count of especially aggravated robbery.6

Penalty Phase

The State first presented evidence of the defendant’s conviction in 1977 for second degree

murder. The State also presented as victim impact evidence the testimonies of the victims’ family
-8-

members, who each discussed the devastating effect of the murders of Myrtle Wilson and Sandi

Stevens on their lives. 

In mitigation of the sentence, the defense presented testimony from the defendant’s family

members, co-workers, and neighbors. The defendant was adopted into a family of five children.

Chris Baumann, the defendant’s sister, testified that the defendanthad a good childhood and was part

of a “normal family.” She also testified to the defendant’s close relationship with his son, John.

Robert Rasmus, the defendant’s foster brother, also testified to the “great family upbringing” that

all five children enjoyed. He further stated that the defendant had done a wonderful job raising his

son John, and that he was proud of how the defendant had turned his life around after his first

conviction in 1977. On cross-examination, Mr. Rasmus admitted that the defendant had also been

convicted of felony escape during his incarceration for second degree murder.

Vickie Stevens, the defendant’s ex-wife, testified that the defendant was a good husband and

father during most of their marriage. After the divorce, he made all of his child support payments

and remained a loving and supportive father. She also expressed her wish that the defendant be

spared the death penalty for the sake of their son.

Roger Cooper, the sales manager of a mobile home company, testified that he employed the

defendant in 1989 for approximately one year. During that time, he knew the defendant to be a hardworking and dedicated employee, and he trusted the defendant enough to give him a key to his own

home. 

Several of the defendant’s neighbors testified to how helpful the defendant was to others in

the community. Specifically, the defendant loaned money to his neighbors, checked in on neighbors

who were elderly, sick, or alone, and voluntarily fixed their trailers without requiring payment.

At the close of the proof, the jury was instructed on the following statutory aggravating

circumstances for each of the two counts of murder: (1) the defendant was previously convicted of

the felony of second degree murder; and (2) the defendant employed another to commit the murders

of his wife and mother-in-law for the promise of remuneration. The jury was also instructed to

consider all mitigating evidence, including the defendant’s work history, the defendant’s family

history and close familial relationships, his positive role in the community, any other aspect of the

defendant’s background, character, or record, and any aspect of the circumstances of the offense

favorable to the defendant and supported by the evidence.

The jury found that the State had proven the two statutory aggravating circumstances beyond

a reasonable doubt and that these two aggravating circumstances outweighed the mitigating

circumstances beyond a reasonable doubt. Consequently, on July 23, 1999, the defendant was

sentenced to death for each of the two murder convictions. The trial court entered a judgment in

accordance with the jury’s verdict, and the Court of Criminal Appeals affirmed the defendant’s

convictions and his sentences of death.
7

 See Tenn. Code Ann. § 39-13-206(a)(1) (1997) (“Whenever the death penalty is imposed for first degree

murder and when the judgment has become final in the trial court, the defendant shall have the right of direct appeal

from the trial court to the court of criminal appeals. The affirmance of the conviction and the sentence of death shall

be automatically reviewed by the Tennessee supreme court.”).

-9-

The case was automatically docketed in this Court for review of the death sentences.

7

 We

requested additional briefing and argument on the following issues: (1) whether the trial court erred

in limiting the testimony of defendant’s crime scene expert, Gregg McCrary, to his analysis of the

evidence found at the crime scene; (2) whether the trial court abused its discretion in excluding the

testimony of Barry Morris, Corey Milliken’s former foster parent, regarding Milliken’s prior bad

acts; (3) whether the trial court violated the defendant’s constitutional right to present a defense by

failing to apply the hearsay and other evidentiary rules in an even-handed manner; and (4) whether

the death sentence is an excessive and disproportionate punishment given the nature of the defendant

and the circumstances of this case.

After reviewing the record and considering the issues raised by the defendant, we find no

reversible error and affirm the judgment of the trial court and of the Court of Criminal Appeals.

I. NON-SCIENTIFIC EXPERT TESTIMONY

The defendant first contends that the trial court erred when it refused to allow crime scene

investigator, Gregg McCrary, to testify to the behavior and motivation of the offender based on his

analysis of the physical evidence found at the crime scene. The defense offered Mr. McCrary’s

testimony to prove that Milliken committed sexually motivated murder as a violent response to a

fight with his mother and step-father just hours before the crime. 

In a jury-out hearing, Mr. McCrary testified that he had worked as a special agent for the

Federal Bureau of Investigation (FBI) for approximately twenty-five years. During that time, he

took several graduate courses in criminal justice, and he received a Master’s degree in Psychological

Services. He served his last ten years with the FBI in the Behavioral Science Unit, investigating

cases and conducting research on violent criminal behavior to improve the operational effectiveness

of the law enforcement community. He received basic and advanced training in crime analysis, and

he also received training in sex crimes investigations, becoming an FBI expert in this field of law

enforcement. Moreover, Mr. McCrary testified that as an FBI agent, he participated in the

investigation of over a thousand cases, most of which were “sexually violent” homicides. At the

time of the trial, he had retired from the FBI and was currently managing his own consulting

business in behavioral criminology.

Mr. McCrary had been contacted by the defense to conduct a criminal investigation of the

crime scene in this case. He explained that the FBI used criminal investigative analysis to discern

the probable motive of the criminal by analyzing the evidence found at the crime scene “primarily
8

 Mr. McCrary distinguished the use of behavioral analysis, which determines the probable motive of a known

suspect, from the use of profiling, which determines the physical characteristics and personality traits of an unknown

suspect.

9

 According to Mr. McCrary, a “blitz attack” is “an immediate application of an injurious physical

force. . . . [T]he attack is sudden. There is no leading up to the attack.” He compared this to those situations in which

an argument arises between the victim and the offender that starts with pushing, shoving, slapping, and hitting, and may

escalate to a homicide. In a blitz attack, however, “there is none of that antecedent behavior. It starts with the

immediate attack on the victim without any–any build up or any of that antecedent behavior.”

-10-

from a behavioral perspective, looking at what the offender has done in the commission of the crime

to understand the potential motive for the crime as well.”8

In this case, Mr. McCrary reviewed the crime scene photos, the medical examiner’s report,

Mrs. Stevens’s diary, and a video tape of the crime scene. However, he specifically asked not to be

given any information on the suspect so as to be able to provide an objective analysis. Based on his

review of this evidence, Mr. McCrary categorized the crime scene in this case as a “disorganized

sexual homicide scene.” He explained that in a disorganized scene, 

the victim and location are known to the offender; . . . there is minimal conversation,

a minimal interpersonal conflict–contact between the victim and the offender during

the course of the crime. It’s usually a blitz attack9 or a sudden violence that’s used.

The crime scene is quite sloppy and in great disarray. There is minimal use

of restraints. The sexual acts tend to occur after death; so, there is post-mortem

injury to the victim . . . indication of post-mortem sexual activity.

The body is left at the death scene . . . and is typically left in view. There’s

a good deal of physical evidence that’s–that’s left at the scene. And, anytime just a

weapon of opportunity that the offender uses, and by that, I mean a weapon that is

contained at the scene, uses it and, then, it’s not uncommon for the offender to leave

that weapon either at or near–near the scene.

Mr. McCrary testified that criminals usually commit disorganized violent crimes as a result of some

“precipitating stresser, [or] stressful event” in the criminal’s life. Such an event invokes a lot of

anger in the offender, and that anger–transferred onto the victim–triggers this violent behavior.

Moreover, he stated that it was common in disorganized scenes to find evidence of post-mortem

sexual activity, including insertion of a foreign object. 

In contrast to his description of a disorganized crime scene, Mr. McCrary testified to the

characteristics of a typical contract murder crime scene. Usually, the offender spends very little time

at the crime scene. A firearm is normally the weapon of choice, and the “kills are quick [and the

offender is] out of there . . . right after the murders are committed.” However, he testified that the

perpetrator in this case spent a fair amount of time at the crime scene “trashing” the place to make
10 Mr. McCrary defined “staging” as “the purposeful alteration of the crime or crime scene by the offender

to provide a false motive for investigators, which will take the focus off that particular killer and onto . . . a non-existent

offender.”

-11-

it look like a burglary or a “for profit” motive.10 Mr. McCrary also testified to the possibility that

more than one perpetrator committed these murders based on the use of different murder weapons

and the lack of blood transference on several items throughout the trailer. 

On cross-examination, Mr. McCrary testified that the FBI had conducted a study to

determine the accuracy rate of its crime scene analysis. The results of that study yielded a seventyfive to eighty percent accuracy rate. He presented as further evidence of the reliability of crime

scene analysis the FBI’s increased number of trained agents in this field from seven to forty.

Although Mr. McCrary acknowledged that crime scene analysis “is not hard science where you can

do controlled experiments and come up with ratios in all this,” he said that “the proof [that] there is

validation and reliability in the process is that it’s being accepted. It’s being used and the demand

is just outstripping our resources to provide it.”

At the close of the jury-out offer of proof, the trial court found that Mr. McCrary had

demonstrated expertise in his ability to analyze the evidence found at the crime scene, and therefore

he was permitted to testify to the staging of the crime scene, to any omissions in the police

investigation, and to the possibility that the homicides were committed by more than one offender.

However, the court refused to admit any testimony indicating an interpretation of criminal behavior,

including Mr. McCrary’s description of the characteristics of a typical contract murder crime scene

and his opinion regarding what motivated the killer in this case. Although the court deemed such

evidence to be “specialized knowledge” and a “tremendous asset as an investigation tool in law

enforcement,” the court determined that such evidence did not comply with Rule 702 “in terms of

substantially assisting the [trier] of fact because there is no trustworthiness or reliability.” In its

order denying the defendant’s motion for a new trial, the trial court stated that it was not “convinced

that this type of analysis has been subject to adequate objective testing, or that it is based upon

longstanding, reliable, scientific principles.” 

The Court of Criminal Appeals affirmed the trial court’s decision and held that the factors

set forth in McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257, 264-65 (Tenn. 1997), are

applicable not only to scientific evidence, but also to “technical” or “specialized” knowledge as well.

Citing the United States Supreme Court’s decision in Kumho Tire Co. v. Carmichael, 526 U.S. 137,

150 (1999) (holding that trial courts may consider the Daubert factors to determine the reliability of

nonscientific expert testimony), the intermediate court concluded that despite the nonscientific

evidence at issue, the trial court did not apply an incorrect legal standard by looking to McDaniel

to determine the reliability of this expert testimony. The issues now before us are whether

nonscientific expert testimony must not only meet the fundamental requirement of relevance, but

also the requirement of reliability, and, if so, whether or how McDaniel applies when making an

assessment of reliability.
11 Tennessee Rule of Evidence 702 provides:

If scientific, technical, or other specialized knowledge will substantially assist the trier of fact to

understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge,

skill, experience, training, or education may testify in the form of an opinion or otherwise.

Tennessee Rule of Evidence 703 provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be

those perceived by or made known to the expert at or before the hearing. If of a type reasonably

relied upon by experts in the particular field in forming opinions or inferences upon the subject, the

facts or data need not be admissible in evidence. The court shall disallow testimony in the form of

an opinion or inference if the underlying facts or data indicate lack of trustworthiness.

-12-

Questions regarding the qualifications, admissibility, relevancy, and competency of expert

testimony are matters left within the broad discretion of the trial court. See McDaniel, 955 S.W.2d

at 263-64; State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993). On appellate review, the trial court’s

ruling shall not be overturned absent a finding that the trial court abused its discretion in admitting

or excluding the expert testimony. Ballard, 855 S.W.2d at 562. “[A]n appellate court should find

an abuse of discretion when it appears that the trial court applied an incorrect legal standard, or

reached a decision which is against logic or reasoning that caused an injustice to the party

complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997).

Reliability Determination of Nonscientific Evidence

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the United States

Supreme court held that Federal Rule of Evidence 702 imposes a “gatekeeping” obligation on the

trial court to “ensure that any and all scientific testimony . . . is not only relevant, but reliable.” Id.

at 589. Several years later in McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn. 1997),

this Court addressed the admissibility of scientific evidence under Tennessee Rules of Evidence 702

and 70311 and, citing Daubert, similarly held that evidence and expert testimony regarding scientific

theory must be both relevant and reliable before it could be admitted. McDaniel, 955 S.W.2d at 265.

We also listed several nonexclusive factors that courts could consider in determining the reliability

of scientific expert testimony, including (1) whether the scientific evidence has been tested and the

methodology with which it has been tested; (2) whether the evidence has been subjected to peer

review or publication; (3) whether a potential rate of error is known; (4) whether the evidence is

generally accepted in the scientific community; and (5) whether the expert’s research in the field has

been conducted independent of litigation. Id. 

The testimony at issue in this case, however, is not based on scientific theory and

methodology, but rather, is based on nonscientific “specialized knowledge,” that is, the expert’s

experience. See Simmons v. State, 797 So. 2d 1134, 1151 (Ala. Crim. App. 1999) (“Crime-scene

analysis, which involves the gathering and analysis of physical evidence, is generally recognized as

a body of specialized knowledge.”); see also United States v. Meeks, 35 M.J. 64, 68 (C.A.A.F.

1992). The trial court correctly reasoned that such nonscientific testimony must still meet the

fundamental requirements of relevance and reliability. Indeed, nothing in the language of Rules 702
-13-

and 703 suggests that scientific testimony should be treated any differently than expert opinions

based on technical or nonscientific specialized knowledge. “If the mention of scientific knowledge

suffices to mandate reliability standards for scientific testimony, a fortiori the mention of

nonscientific expert knowledge should compel the courts to seek to formulate reliability standards

for that type of expert evidence as well.” Edward J. Imwinkelreid, The Next Step After Daubert:

Developing a Similarly Epistemological Approach to Ensuring the Reliability of Nonscientific

Expert Testimony, 15 Cardozo L. Rev. 2271, 2281 (1994). 

In this case, the trial court found that Mr. McCrary’s testimony failed to pass the McDaniel

test of scientific reliability. The defendant argues that the trial court erred in applying McDaniel in

this case because McDaniel applies only to scientific testimony. Mr. McCrary’s testimony, on the

other hand, was based on his extensive experience as a former agent with the FBI, his training in

crime scene analysis, and his personal investigation of over a thousand violent crimes.

Consequently, the defendant argues, such testimony, which would have substantially assisted the

trier of fact to understand what motivated Milliken to commit these crimes, should have been

admitted under Rule 702 simply by virtue of the witness’s experience, training, and education. 

We agree with the defendant’s assertion that not all disciplines are amenable to empirical

verification but may nevertheless substantially assist the trier of fact. Consequently, we are reluctant

to measure the reliability of expert testimony that is not based on scientific methodology under a

rigid application of the McDaniel factors. However, we are equally reluctant to admit nonscientific

expert testimony based on an unchallenged acceptance of the expert’s qualifications and an

unquestioned reliance on the accuracy of the data supporting the expert’s conclusions. 

In resolving the evidentiary issue before us, the United States Supreme Court’s recent

decision in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999), provides useful guidance. In

that case, the Supreme Court was asked to determine whether a trial court “may” consider Daubert’s

factors when determining the admissibility of an engineering expert’s testimony based on specialized

knowledge. The Court first held that Daubert’s “gatekeeping obligation,” requiring an inquiry into

both the relevance and the reliability of the evidence, applies not only to expert testimony

characterized as scientific, but to all expert testimony. See Kumho Tire Co., 526 U.S. at 147.

Moreover, the Court concluded that when assessing the reliability of nonscientific expert testimony,

the trial court may consider the Daubert factors “where they are reasonable measures of the

reliability of expert testimony.” Id. at 152. However, the Court cautioned that the 

“factors identified in Daubert may or may not be pertinent in assessing reliability,

depending on the nature of the issue, the expert’s particular expertise, and the subject

of his testimony.” The conclusion, in our view, is that we can neither rule out, nor

rule in, for all cases and for all time the applicability of the factors mentioned in

Daubert, nor can we now do so for subsets of cases categorized by category of expert

or by kind of evidence. Too much depends upon the particular circumstances of the

particular case at issue.
-14-

Id. at 150 (citations omitted). The Court concluded that the trial court maintains “considerable

leeway” in deciding whether to consider the specific factors in Daubert “as reasonable measures of

the reliability of expert testimony.” Id. at 152.

We find this analysis reasonable, and consequently, we reject the defendant’s argument that

McDaniel applies only to scientific testimony. Distinguishing scientific evidence from other areas

of expert testimony is too difficult a determination in many instances. Consequently, to restrict

McDaniel to scientific evidence would be to impose upon the trial court the undue burden of

classifying the legions of expert witnesses as scientific or nonscientific. We do not believe that Rule

702 “creates a schematism that segregates expertise by type while mapping certain kinds of

questions to certain kinds of experts.” Kumho Tire Co., 526 U.S. at 151. Accordingly, we hold that

the McDaniel factors may apply, subject to the discretion of the trial court, “as reasonable measures

of the reliability” of all expert testimony described in Rule 702.

In properly exercising its discretion, the trial court must first make a determination that the

witness is qualified by knowledge, skill, experience, training, or education to express an opinion

within the limits of the expert’s expertise. Tenn. R. Evid. 702. The determinative factor is whether

the witness’s qualifications authorize him or her to give an informed opinion on the subject at issue.

See, e.g., United States v. Starzecpyzel, 880 F. Supp. 1027, 1043 (S.D.N.Y. 1995) (presenting as an

example of unreliable and inadmissible evidence the testimony of a weekend recreational sailor

professing expertise as a harbor pilot); see also Wilson v. Woods, 163 F.3d 935, 937-38 (5th Cir.

1999) (finding an expert in fire reconstruction unqualified as an expert in auto accident

reconstruction).

The trial court must next ensure that the basis for the witness’s opinion, i.e., testing, research,

studies, or experience-based observations, adequately supports that expert’s conclusions. For

example, in General Electric Co. v. Joiner, 522 U.S. 136 (1997), Joiner, an electrician diagnosed

with small-cell lung cancer, introduced expert testimony to demonstrate that his workplace exposure

to certain chemicals and other toxins contributed to his disease. The experts, in giving their

opinions, cited to several studies that were either so dissimilar to the facts of the case or failed to

make the requisite link between cancer and chemical exposure. The Supreme Court held that the

studies relied on were an insufficient basis for the expert opinions and, therefore, the testimony was

inadmissible. In so holding, the Court said,

[N]othing in either Daubert or the Federal Rules of Evidence requires a district court

to admit opinion evidence which is connected to existing data only by the ipse dixit

of the expert. A court may conclude that there is simply too great an analytical gap

between the data and the opinion proffered.

Id. at 146.

This “connection” between the expert’s conclusion and the underlying data supporting that

conclusion is of especial importancewhen determining the reliability of experience-based testimony,
12 The following well-known hypothetical demonstrates our point:

[I]f one wanted to prove that bumblebees always take off into the wind, a beekeeper with no scientific

training at all would be an acceptable expert witness if a proper foundation were laid for his

conclusions. The foundation would not relate to his formal training, but to his firsthand observations.

In other words, the beekeeper does not know any more about flight principles than the jurors, but he

has seen a lot more bumblebees than they have.

Berry v. City of Detroit, 25 F.3d 1342, 1350 (6th Cir. 1994) (emphasis in original). The basis for the beekeeper’s

opinion is his experience observing bees. In determining whether this expert’s testimony is reliable, the trial court can

look at the connection between the beekeeper’s observations and his conclusions extrapolated from these observations.

The conclusions should be sufficiently straightforward to assist the jury’s understanding of the take-off habits of bees.

“The straightforward character of the testimony is essential to its reliability because it permits the jury to understand,

and thus weigh, the beekeeper’s conclusion without the necessity of an explanation of the scientific principles that

account for bees always taking off into the wind.” J. Brook Lathram, The “Same Intellectual Rigor” Test Provides an

Effective Method for Determining the Reliability of All Expert Testimony, Without Regard to Whether the Testimony

Comprises “Scientific Knowledge” or “Technical or Other Specialized Knowledge”, 28 U. Mem. L. Rev. 1053, 1066-67

(1998). 

13 Similarly, in State v. Roquemore, 620 N.E.2d 110, 113-14 (Ohio Ct. App. 1993), the expert witness, also

a crime scene analyst, classified crime scene assessment as part of a larger “profiling” review. He described “profiling”

(continued...)

-15-

because observations and experiences are not easily verifiable by the court. However, the court may

make a finding of reliability if the expert’s conclusions are sufficientlystraightforward and supported

by a “rational explanation which reasonable [persons] could accept as more correct than not correct.”

Wood v. Stihl, 705 F.2d 1101, 1107-08 (9th Cir. 1983).12

Consequently, when the expert’s reliability is challenged, the court may consider the

following nondefinitive factors: (1) the McDaniel factors, when they are reasonable measures of the

reliability of expert testimony; (2) the expert’s qualifications for testifying on the subject at issue;

and (3) the straightforward connection between the expert’s knowledge and the basis for the opinion

such that no “analytical gap” exists between the data and the opinion offered. Subject to the trial

court’s discretion, once the evidence is admitted, “it will thereafter be tested with the crucible of

vigorous cross-examination and countervailing proof.” McDaniel, 955 S.W.2d at 265.

Inadmissibility of Behavioral Crime Scene Analysis

Turning to the facts in this case, we cannot conclude that the trial court erred in refusing to

admit Mr. McCrary’s expert opinion regarding the behavior of the perpetrator of these crimes. This

type of crime scene analysis, developed by the FBI as a means of criminal investigation, relies on

the expert’s subjective judgment to draw conclusions as to the type of individual who committed this

crime based on the physical evidence found at the crime scene. Although we do not doubt the

usefulness of behavioral analysis to assist law enforcement officials in their criminal investigations,

we cannot allow an individual’s guilt or innocence to be determined by such “opinion evidence

connected to existing data only by the ipse dixit” of the expert.13 Essentially, the jury is encouraged
13 (...continued)

as

basically a method of examination which looks at the issue of motive. It ties to crime scene

assessment, which basically examines the evidence set forth or the evidence known, which may

include the photographs, the autopsy reports, the police reports, available information, and then one

analyzes that based on probability for pattern in terms of development. Is there a sequence, is there

an order, is that consistent with what has generally been established as recognized patterns in crime

behavior? 

Id. at 114 (emphasis added). The court held that the testimony should have been excluded because, among other

reasons, “there is little indication in the record that [profiles] can be said to be reliable for the purposes for which they

were used by the state in the instant case.” Id. (citations omitted).

-16-

to conclude that because this crime scene has been identified by an expert to exhibit certain patterns

or telltale clues consistent with previous sexual homicidestriggered by “precipitating stressors,” then

it is more than likely that this crime was similarly motivated. Cf. State v. Ballard, 855 S.W.2d 557,

561 (Tenn. 1993) (rejecting as unreliable expert testimony concerning personality profiles of

sexually abused children). Indeed, Mr. McCrary himself acknowledged that his analysis involves

some degree of speculation, and he further negated the sufficiency of his own analysis when he

conceded that each case is “unique” and that criminals are often driven by any number of motives.

Moreover, we find that the FBI’s study revealing a seventy-five to eighty percent accuracy

rate for crime scene analysis lacks sufficient trustworthiness to constitute evidence of this

technique’s reliability. Although the frequency with which a technique leads to accurate or erroneous

results is certainly one important factor to determine reliability, equally important is the method for

determining that rate of accuracy or error. In this case, there is no testimony regarding how the FBI

determined the accuracy rate of this analysis. For example, was accuracy determined by confessions

or convictions, or both? Even then, the absence of a confession does not indicate the offender’s

innocence and thus an inaccuracy in the technique. Clearly, the accuracy rate alone, without any

explanation of the methodologies used in the study, is insufficient to serve as the foundation for the

admission of this testimony.

Therefore, because the behavioral analysis portion of Mr. McCrary’s testimony does not bear

sufficient indicia of reliability to substantially assist the trier of fact, we conclude that this testimony

was properly excluded.

II. EVIDENCE OF PRIOR BAD ACTS OF A NON-PARTY WITNESS

The defendant next argues that the trial court abused its discretion when it improperly

excluded the testimony of Barry Morris, Milliken’s former foster parent. The defense sought to

introduce this testimony to corroborate the defendant’s theory that Milliken committed the murders

as a violent reaction to an argument that Milliken had with his mother and step-father the night

before the crimes. 
14 Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order

to show action in conformity with the character trait. It may, however, be admissible for other

purposes. The conditions which must be satisfied before allowing such evidence are:

(1) The court upon request must hold a hearing outside the jury’s presence;

(2) The court must determine that a material issue exists other than conduct conforming with

a character trait and mu st 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 evidence if its probative value is outweighed by the danger

of unfair prejudice.

-17-

Mr. Morris testified in a jury-out offer of proof that in 1996 he had been Milliken’s foster

parent. On several occasions during the course of that year, Milliken would argue with his mother

over the telephone and then vent his frustration by throwing things and damaging furniture.

Although Milliken never physically assaulted anyone, Mr. Morris stated that Milliken had warned

him once or twice to be careful when he went to sleep. 

The trial court rejected the proposed testimony, finding such testimony inadmissible under

Tennessee Rule of Evidence 404(b) because it showed Milliken’s propensity for violence after

arguments with his parents.14 The intermediate court affirmed the trial court’s decision, holding that

such evidence was propensity evidence prohibited by Rule 404(b) and further concluding that any

connection between Milliken’s violent behavior in 1995-1996 and the murders in 1997 “is simply

too tenuous” and therefore, irrelevant to Milliken’s motive for murdering Mrs. Stevens and Ms.

Wilson. 

It is well established that in a criminal trial, evidence of a defendant’s prior misconduct is

inadmissible to establish the accused’s bad character or criminal propensity. See State v. Mallard,

40 S.W.3d 473, 480 (Tenn. 2001); State v. Parton, 694 S.W.2d 299, 302 (Tenn. 1985); Mays v.

State, 145 Tenn. 118, 140-41, 238 S.W. 1096, 1102 (1921); see also Tenn. R. Evid. 404(b). The

frequently enunciated rationale for this rule is that evidence of other crimes “may tend to confuse

the jurors, predispose them to a belief in the defendant’s guilt or prejudice their minds against the

defendant.” Sessoms v. State, 744 A.2d 9, 15 (Md. 2000) (citations omitted).

However, in this case, the evidence at issue involves previous “crimes, wrongs, or bad acts”

committed by one other than the defendant. Such evidence clearly was not being offered to show

that the defendant had a criminal disposition and that he could be expected to act in conformity

therewith, but was instead offered by the defendant to show that Milliken committed the murders

out of anger, and not because he had been hired to do so by the defendant. Because there is no risk

of prejudice to the defendant, Rule 404(b) is inapplicable in this situation. Indeed, this Court

recently held in State v. DuBose, “Evidence of crimes, wrongs or acts, if relevant, [is] not excluded

by Rule 404(b) if [the acts] were committed by a person other than the accused.” 953 S.W.2d 649,

653 (Tenn. 1997). 
-18-

Nevertheless, while the court erred in excluding this testimony, we look at the effect of that

error on the trial by evaluating that error in light of all of the other proof introduced at trial. State

v. Gilliland, 22 S.W.3d 266, 274 (Tenn. 2000). “The more the proof exceeds that which is necessary

to support a finding of guilt beyond a reasonable doubt, the less likely it becomes that an error

affirmatively affected the outcome of the trial on its merits.” Id.

The record in this case contains substantial, indeed overwhelming, evidence of the

defendant’s guilt. According to the State’s theory, the defendant hired his eighteen year-old

neighbor, Corey Milliken, to murder his wife and mother-in-law. The evidence clearly showed that

the defendant was having marital problems but refused to go through another divorce. He had also

been taking substantial sums of money from his mother-in-law, and he believed that he would inherit

a portion of the proceeds from her life insurance policy. Several witnesses testified about the

defendant’s extensive planning for the commission of the murders. Shawn Austin, Milliken’s

brother, who had also been asked to assist in the murders but refused, testified that the defendant

took Milliken on a tour of the trailer to show him what to do to make the crimes look like they were

committed in furtherance of a burglary. The defendant instructed Milliken to shoot the victims, but

if he could not acquire a gun, he was to use a knife from the defendant’s trailer. Chris Holman, one

of Milliken’s friends testified that Milliken asked him if he could find a gun with a silencer; when

he refused to do so, Milliken explained his purpose for the request and offered to “split even” the

money if he helped murder the victims. Milliken’s girlfriend also testified that the defendant offered

to pay Milliken five thousand dollars, and she stated that she was supposed to provide Milliken’s

alibi once the murders were completed. Finally, Lane Locke, the defendant’s former cellmate,

testified that the defendant frequently discussed his case with him, and he quoted the defendant as

saying, “I can’t believe those idiots thought I was going to pay them.” The defendant presented no

evidence refuting these allegations. 

We have long recognized that “‘the line between harmless and prejudicial error is in direct

proportion to the degree . . . by which proof exceeds the standard required to convict . . . .’” Spicer

v. State, 12 S.W.3d 438, 447-48 (Tenn. 2000) (citation omitted). After considering the

overwhelming evidence of the defendant’s participation in these murders, we conclude that the

exclusion of Barry Morris’s testimony regardingMilliken’stendency to become violent after arguing

with his mother did not affirmatively affect the outcome of the trial on its merits. Accordingly, the

error is harmless.

III. APPLICATION OF EVIDENTIARY RULES

The defendant next argues that the trial court applied hearsay and other evidentiary rules in

an unfair and biased manner, which thereby denied the defendant his due process right to present a
15 The State contends that this issue is waived because the defendant did not include this claim in his motion

for a new trial. Although we agree with the State, in the interest of “enhanc[ing] . . . the search for justice,” Johnson

v. Hardin, 926 S.W.2d 236, 239 (Tenn. 1996), we elect to decide this issue on the merits pursuant to Tennessee Rule

of Appellate Procedure 2:

For good cause, including the interest of expediting decision upon any matter, the Supreme

Court . . . may suspend the requirements or provisions of any of these rules in a particular case on

motion of a party or on its motion and may order proceedings in accordance with its discretion, except

that this rule shall not permit the extension of time for filing a notice of appeal prescribed in Rule 4,

an application for permission to appeal prescribed in Rule 11, or a petition for review prescribed in

Rule 12.

16 We reiterate the well-established rule that a trial court ruling excluding evidence may not be challenged on

appeal “unless a substantial right of the party is affected” and an offer of proof is contained in the record. Tenn. R. Evid.

103(a)(2). The purpose of an offer is two-fold: First, the proof must demonstrate the substance, purpose, and relevance

of the excluded evidence to “inform[] the trial court what the party intends to prove so that the court may rule

intelligently.” Alley v. State, 882 S.W.2d 810, 815 (Tenn. Crim. App. 1994). Second, an offer “creates a record so that

an appellate court can determine whether there was reversible error in excluding the evidence.” Id.; see also State v.

Goad, 707 S.W.2d 846, 852-53 (Tenn. 1986) (“When [excluded evidence] consists of oral testimony, it is essential that

a proper offer of proof be made in order that the appellate court can determine whether or not exclusion was

reversible.”).

-19-

complete defense at trial.15 He points to six specific instances of alleged judicial misconduct. We

shall consider each incident separately. 

Testimony of Doris Trott

The defendant’s first perceived trial court bias in favor of the State involves the testimony

of the State’s witness Doris Trott, Ms. Wilson’s hairdresser. The defendant argues that the State was

allowed to elicit “state of mind” hearsay testimony, Tenn. R. Evid. 803(3), over the defendant’s

objection, but when the defendant sought to elicit similar testimony on cross-examination, the trial

court unfairly sustained the State’s hearsay objection.16

 

The defendant sought to elicit testimony from this witness regardingwhether Ms. Wilson had

ever expressed concern about Corey Milliken making sexual comments and gestures in the presence

of Ms. Wilson and her daughter, Mrs. Stevens. The State raised a hearsay objection. During a bench

conference, the defendant argued that such testimony should be allowed to show Milliken’s intent

to commit rape. 

We disagree with the defendant’s argument that the trial court’s ruling was improper or onesided. After careful review of the record, we find that the trial court gave defense counsel numerous

opportunities during his offer of proof to demonstrate the admissibility of the excluded evidence.

For instance, when counsel argued that Ms. Wilson’s statement went “to the theory of the

crime . . . Milliken’s intent to rape these two women,” the trial court said, “[T]he hearsay exception

is the declarant’s intent, or motive, [Tenn. R. Evid. 803(3)], not Corey Milliken’s. I’m trying to

follow your reasoning for it coming in.” Defense counsel concluded the conference by insisting that
-20-

“it’s a hearsay exception cause it shows the intent of Corey Milliken when he went in there . . .was

to rape these women.” Clearly, the defendant sought to introduce this evidence not to prove Myrtle

Wilson’s state of mind, but Corey Milliken’s state of mind. This testimony does not fit within a

hearsay exception and was properly excluded at trial. Consequently, the hearsay objection was

correctly sustained. 

Excluded Testimony Indicating Milliken’s Independent Motive for Murder

The defendant next complains that the trial court acted unfairly in prohibiting the defendant

from eliciting statements on cross-examination that tended to show Milliken’s independent motive

for committing murder. First, the defendant suggests that the trial court erred in refusing to allow

the cross-examination of Shawn Austin regarding Milliken’s alleged sexual comments that

purportedly resulted in his being requested to leave the defendant’s trailer. The trial court sustained

the State’s hearsay objection after the defendant simply argued that this testimony should be

admitted to show Milliken’s sexual infatuation with Sandi Stevens. We can discern no appropriate

hearsay exception supporting the admission of this testimony. Moreover, the defendant had

previously been allowed to elicit Austin’s knowledge of his brother’s sexual infatuation with Mrs.

Stevens over the State’s objection. Tenn. R. Evid. 403. Therefore, the defendant has failed to show

how the refusal to permit Shawn Austin to answer this question constituted unfair prejudice, and

therefore, we find this claim to be without merit. 

Second, the defendant argues that the trial court improperly prohibited Ms. Suttle, the

defendant’s girlfriend, from testifying that Milliken did not tell her whether he sexually assaulted

the victims when he described how he killed them. However, our review of the record indicates

otherwise. Indeed, the defendant was able to elicit, without objection, Ms. Suttle’s testimony that

Milliken had neither expressed a desire to rape the victims in this case nor described any acts of

sexual assault after the murders had been committed. The State objected only after the defendant

insisted that Milliken “left [the sexual assaults] out, didn’t he?” The question clearly required the

witness to assume facts not in evidence. 

In Bearden v. Memphis Dinettes, Inc., 690 S.W.2d 862, 868 (Tenn. 1984), this Court stated

that “hypothetical questions are improper and of no value when they assume facts not supported by

the evidence at trial.” Here, the defendant has failed to point out any evidence from the record that

would support the assumption that Milliken either raped the victims or sexually assaulted them, and

we have found none. Accordingly, the objection was correctly sustained. 

Third, the defendant complains that Shawn Austin should have been allowed to testify, over

the State’s hearsay objection, that Milliken “lied to make himself a bigger man.” There is no

evidence that Austin had personal knowledge of his brother’s reasons for lying. A review of the

record fails to reveal whether Austin’s knowledge on the subject, if any, was based on his personal

knowledge or speculation. Accordingly, his testimony was properly excluded under Tennessee Rule

of Evidence 602. 
-21-

Finally, the defendant argues that he was improperly precluded from questioning Detective

Postiglione regarding his knowledge of whether Sandi Stevens had “any disputes, or arguments”

with Milliken. The State objected to this evidence as hearsay. The defendant presented no offer of

proof demonstrating that the answer to this question would lead to relevant or admissible evidence.

Furthermore, throughout the trial, overwhelming evidence was presented to prove Mrs. Stevens’s

dislike for Corey Milliken, including excerpts from her own diary, and this evidence would have

been cumulative. Tenn. R. Evid. 403. Consequently, the defendant has not demonstrated how the

trial court’s ruling constituted unfair prejudice, and thus, this claim is without merit.

Detective Gray’s Reliance on Milliken’s Statements

During cross-examination, the defendant questioned the officer about why he failed to pursue

certain investigative procedures. Detective Gray stated that he conducted his investigation of the

crimes based on Milliken’s description of how the murders were committed. He testified that he did

not need to pursue certain investigative procedures because Milliken told him about “things in that

trailer only the person that did it could know.” To rebut the inference of Milliken’s credibility and

truthfulness, defense counsel argues before this Court that Stevens should have been allowed to

introduce Milliken’s inconsistent confessions. During his investigation, Detective Gray obtained

two confessions from Milliken regarding the crimes. In his first confession, Milliken stated that he

had killed the victims because he was angry after arguing with his mother and step-father. Later, he

said that the defendant had hired him to kill Ms. Wilson and Mrs. Stevens, an act for which he was

to receive five thousand dollars. 

A close reading of the record, however, fails to reflect that Stevens actually attempted to

introduce the inconsistent confessions. The trial court, therefore, was never given the opportunity

to rule on their admissibility. Although we have elected to consider issues not included in the

defendant’s motion for new trial, this specific complaint of an unfair and biased trial court

evidentiary ruling is clearly not properly before this Court because it was never raised in the trial

court. 

IV. WHETHER THE CUMULATIVE EFFECT OF ALL ERRORS VIOLATES THE

DEFENDANT'S CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE

The Defendant contends that the cumulative effect of all errors alleged both at trial and at

sentencing violates his constitutional rights. However, all errors with respect to the defendant’s prior

issues have been deemed harmless, and, after careful consideration, we hold that, separately or in

the aggregate, these errors did not prejudice the defendant. Consequently, this issue is without merit.

V. SUFFICIENCY OF EVIDENCE SUPPORTING AGGRAVATING

AND MITIGATING CIRCUMSTANCES

Pursuant to Tennessee Code Annotated section 39-13-206(c)(1), we now determine whether

the evidence is sufficient to support the two aggravating circumstances found by the jury and
-22-

whether these aggravating circumstances outweigh any mitigating circumstances beyond a

reasonable doubt. In determining whether the evidence supports the application of the aggravating

circumstances, the proper standard to consider is whether, after reviewing the evidence in a light

most favorable to the State, a rational trier of fact could have found the existence of the aggravating

circumstances beyond a reasonable doubt. See, e.g., State v. Henderson, 24 S.W.3d 307, 313 (Tenn.

2000). 

First, the proofsupportsapplication of the (i)(2) aggravating circumstance, that the defendant

had previously been convicted of second degree murder, Tenn. Code Ann. § 39-13-204(i)(2). During

the penalty phase of the trial, Lieutenant William M. Bowers of the Montgomery County sheriff’s

office testified that in 1977, he worked as an agent with the Tennessee Bureau of Investigation and

was the prosecuting witness and investigator in the trial against the defendant. He further testified

that on May 16, 1977, the defendant was convicted of second degree murder. A copy of the

judgment in that case was then placed into evidence. As the evidence of the defendant’s former

conviction is undisputed, we conclude that a rational trier of fact could have found the existence of

this aggravating circumstance beyond a reasonable doubt.

The jury also found the evidence sufficient to support the aggravating circumstance that the

defendant hired Corey Milliken to murder Sandi Stevens and Myrtle Wilson for the promise of

remuneration, Tenn. Code Ann. § 39-13-204(i)(4). The evidence in this case is that the defendant

was having marital problems, but did not want to endure the financial hardship of another divorce.

Milliken’s girlfriend and brother testified that the defendant promised to pay Milliken five thousand

dollars to kill the defendant’s wife and mother-in-law. To corroborate the proof that this was a

murder for hire, the State also introduced evidence that the defendant offered to pay several prison

inmates to kill Corey Milliken, and did arrange to have money sent to a fellow prison inmate for this

purpose. Viewed in a light most favorable to the State, we conclude that a rational trier of fact could

have concluded that this aggravating circumstance was proven beyond a reasonable doubt.

Moreover, the evidence is sufficient to support the jury’s finding that the statutory

aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt. In

mitigation of his offense, the defendant presented evidence of his good relationship with his young

son, his reputation as a hard-working individual, his concern for the welfare of his neighbors and

friends, and his charity on behalf of those less fortunate than himself. There is no evidence that the

defendant suffered from a mental defect or suffered abuse as a child. Based on our extensive review

of the record, we conclude that the evidence is sufficient to support a finding that the aggravating

circumstances outweighed any mitigating circumstances beyond a reasonable doubt.

VI. PROPORTIONALITY REVIEW

Finally, we conduct statutory comparative proportionality review as a final safeguard to

determine whether the defendant’s sentence of death for first degree murder is “disproportionate to

the sentences imposed for similar crimes and similar defendants.” State v. Bland, 958 S.W.2d 651,

664 (Tenn. 1997); see also Tenn. Code Ann. § 39-13-206(c)(1)(D). Our function in performing this
-23-

review is to ensure that the death penalty is not applied arbitrarily or capriciously, but is instead

applied consistently with other cases in which capitally-sentenced defendants were convicted of the

same or similar crimes. Bland, 958 S.W.2d at 664. In conducting this analysis, we look at the facts

and circumstances of the crime, the characteristics of the defendant, and the aggravating and

mitigating circumstances involved, and we compare this case with other cases in which the

defendants were convicted of the same or similar crimes. See State v. Godsey, 60 S.W.3d 759, 782

(Tenn. 2001). Included in this pool of similar cases are only those first degree murder cases in which

“the State seeks the death penalty, a capital sentencing hearing is held, and the sentencing jury

determines whether the sentence should be life imprisonment, life imprisonment without the

possibility of parole, or death, regardless of the sentence actually imposed.” Id. at 783. Because no

two cases involve identical circumstances, our objective is not to “search for proof that a defendant’s

death sentence is perfectly symmetrical, but to identify and to invalidate the aberrant death

sentence.” Bland, 958 S.W.2d at 665. If the case is “plainly lacking in circumstances consistent

with those in cases where the death penalty has been imposed,” the sentence of death is

disproportionate. Id. at 665. Recently, in State v. Godsey, this Court found the sentence of death

disproportionate to the penalty imposed in similar cases and thus modified the sentence to life

imprisonment without the possibility of parole. 60 S.W.3d at 793.

In conducting our review, we look to numerous factors relevant to the process of identifying

and comparing similar cases, which include the following: (1) the means of death; (2) the manner

of death (e.g., violent or torturous); (3) the motivation for the killing; (4) the place of death; (5) the

similarity of the victim’s circumstances including age, race, and physical and mental conditions; and

the victim’s treatment during the killing; (6) the absence or presence of premeditation; (7) the

absence or presence of provocation; (8) the absence or presence of justification; and (9) the injury

to and effects on nondecedent victims. Bland, 958 S.W.2d at 667. Moreover, we have identified

several nonexclusive factors relevant to the comparison of the characteristics of defendants: (1) the

defendant’s prior criminal record or prior criminal activity; (2) the defendant’s age, race, and gender;

(3) the defendant’s mental, emotional, or physical condition; (4) the defendant’s involvement or role

in the murder; (5) the defendant’s cooperation with authorities; (6) the defendant’s remorse or lack

thereof; (7) the defendant’s knowledge of the helplessness of the victim(s); and (8) the defendant’s

capacity for rehabilitation. Id.

Applying these factors, we note that the evidence in this case establishes that seventy-five

year-old Myrtle Wilson was stabbed repeatedly and manually strangled. Sandi Stevens, the

defendant’s wife, was strangled with an electric cord. There is no evidence of provocation; indeed,

the evidence indicates that both women were asleep in their beds at the time Corey Milliken

murdered them. The evidence indicates that the defendant was motivated, at least in part, to kill his

wife in order to get out of a troubled marriage without having to undergo the trouble and expense

of a divorce. Moreover, the evidence indicates that the defendant believed that he would inherit the

proceeds of his mother-in-law’s life insurance policy. For several weeks, the defendant planned how

the victims would be killed, how to dispose of the evidence, and what alibis each participant would

have. For instance, he took Milliken on a walk-through of the trailer to show him what items to

“trash,” what items to “steal,” and what items to leave untouched. He also told him where to dispose
17 This Court affirmed the convictions, but remanded for resentencing due to a fundamental instructional error

that occurred during the sentencing phase of the trial. Id. at 556. On remand, the parties reached an agreement on which

the sentence was reduced to life without parole. Recently, this Court reversed the dismissal of the defendant’s petition

for habeas corpus relief and remanded the case, finding the “life without parole” sentence illegal and void because it

was not a legal sentencing option at the time of the offense. See Stephenson v. Carlton, 28 S.W.3d 910, 912 (Tenn.

(continued...)

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of the murder weapon, where to get rid of the stolen jewelry, and where to go after the murders were

completed. Finally, he established an alibi for himself by ensuring that he would be miles away at

a jobsite with his young son and Shawn Austin.

The defendant, a middle-aged, high school educated Caucasian male, has previous

convictions for second degree murder and felony escape. After being released from prison, he

worked primarily as an independent contractor to repair mobile homes. When he was taken in for

questioning, he cooperated with authorities by giving a taped statement, but he has consistently

refused to admit any involvement in the murders of his wife and mother-in-law. Furthermore, the

record indicates that he showed little sign of remorse, and he never requested to be allowed to attend

his own wife’s funeral. However, he sent many letters to his ex-wife asking if they could get back

together as a couple. The proof also demonstrates that the defendant tried to hire several other

inmates whom he befriended to kill Corey Milliken, thereby indicating very little potential for

rehabilitation.

This Court has upheld the death penalty in several first degree murder cases involving

“murders for hire.” In State v. Porterfield, 746 S.W.2d 441 (Tenn. 1988), the defendants, Gail

Owens–the victim’s wife–and Sidney Porterfield were each convicted of first degree murder and

sentenced to death. Mrs. Owens had hired Porterfield to kill the victim because she, like the

defendant in this case, wanted to get out of a bad marriage. She had previously offered between five

and ten thousand dollars to three other men to kill her husband, but she ultimately hired Porterfield

and promised to pay him seventeen thousand dollars. Consequently, one Sunday, while the victim

was alone in his house, Porterfield entered the house through the back door, which he found partially

open, and he bludgeoned the victim to death with a tire iron. The jury found that the (i)(4) and (i)(5)

aggravating circumstances had been proven beyond a reasonable doubt with respect to both

defendants, as well as the (i)(2) aggravating circumstance with respect to Porterfield. On appeal, this

Court affirmed the convictions and the sentences. Id. at 452.

In State v. Stephenson, 878 S.W.2d 530 (Tenn. 1994), the defendant, who had been having

an affair, had on several occasions offered to some of his acquaintances five thousand dollars from

the proceeds of a life insurance policy on his wife if they would kill her. He was afraid that she was

going to divorce him and “take everything.” Ralph Thompson agreed to do so and shot the victim

through the windshield of her car with a high powered rifle at close range. The defendant was

convicted of premeditated first degree murder and conspiracy to commit murder. The jury found

beyond a reasonable doubt the existence of the (i)(4) aggravating circumstance and, finding that it

outweighed any mitigating circumstances, subsequently sentenced the defendant to death.17
17 (...continued)

2000).

-25-

In State v. Hutchison, 898 S.W.2d 161 (Tenn. 1994), the defendant bought a large insurance

policy on the victim’s life, intending to hire others to kill the victim in order to collect the proceeds.

The defendant eventually hired someone to lure the victim on a fishing trip and then drown him.

The jury found the defendant guilty of premeditated first degree murder, and it sentenced the

defendant to death after finding the (i)(4) aggravating circumstance beyond a reasonable doubt. On

appeal, this Court affirmed the conviction and the sentence. Id. at 175.

In State v. Coker, 746 S.W.2d 167 (Tenn. 1987), the defendant had been having an affair

with his former mother-in-law. For several months, he had suggested several possible methods for

how to “get[] rid of her husband.” Finally, he requested five thousand dollars to hire someone to

shoot her blind husband, and she agreed. The jury found the defendant guilty of first degree murder

and sentenced him to death after finding the (i)(2) and (i)(4) aggravating circumstances beyond a

reasonable doubt. The defendant subsequently petitioned for post-conviction relief, alleging

ineffective assistance of counsel. Post-conviction relief was granted as to his sentence, and in a

resentencing hearing, he was sentenced to life imprisonment. See Coker v. State, No. 01C01-9804-

CC-00152 (Tenn. Crim. App. 1999).

In State v. Austin, 618 S.W.2d 738 (Tenn. 1981), the defendant and several of his employees

were served with arrest warrants for conducting illegal gambling at the defendant’s place of business.

The victim, a reserve deputy sheriff working undercover for the police department, recorded

numerous incidents of illegal gambling activity and, as a result of his testimony, the indictments and

arrest warrants were obtained. After this incident, the defendant had been heard on several occasions

to express his desire to see the victim dead. Soon thereafter, he hired an escaped convict to shoot

the victim at the auto repair shop where he worked. The jury found that the evidence established the

(i)(4) aggravating circumstance and that this aggravator outweighed any mitigating circumstances.

Consequently, the jury imposed the death penalty. However, the defendant’s sentence was vacated

in a habeas corpus proceeding, see Austin v. Bell, 938 F. Supp. 1308 (M.D. Tenn. 1996). At the

defendant’s resentencing trial, mitigating evidence portrayed the defendant as a kind, caring, deeply

respected individual, and a model prisoner. Despite this evidence, the jury again imposed a sentence

of death, which was upheld by the Court of Criminal Appeals in State v. Austin, No. W1999-00281-

CCA-R3-DD (Tenn. Crim. App. 2001). 

Moreover, we have upheld the death sentence based on the sole aggravating circumstance

of a prior violent felony conviction, Tenn. Code Ann. § 39-13-204 (i)(2), in the following cases:

State v. Chalmers, 28 S.W.3d 913 (Tenn. 2000); State v. Smith, 993 S.W.2d 6 (Tenn. 1999); State

v. Boyd, 959 S.W.2d 557 (Tenn. 1998); State v. Nichols, 877 S.W.2d 722 (Tenn. 1994); State v.

Adkins, 725 S.W.2d 660 (Tenn. 1987); State v. Goad, 707 S.W.2d 846 (Tenn. 1986).
-26-

Even where the death penalty is not imposed in cases involving circumstances similar to

those of the offense in this case, the defendant’s death sentence is not disproportionate if this Court

can ascertain some basis for the imposition of the lesser sentence. See, e.g., State v. Hall, 958

S.W.2d 679, 699 (Tenn. 1997). For instance, in State v. Mosher, 755 S.W.2d 464 (Tenn. Crim. App.

1988), the defendant hired two men to murder her husband. The jury sentenced her to life

imprisonment. However, the trial judge noted that the “passionate plea by the defendant’s young

daughter” probably resulted in her receiving a life sentence.

The defendant in State v. Teresa M. King, 01C01-9204-CR-00146 (Tenn. Crim. App. filed

at Nashville, April 29, 1993), was also sentenced to life imprisonment after being convicted for first

degree murder. The defendant in this case, who was involved in an extramarital affair, took out a

life insurance policy on her husband several months prior to the murder. Her boyfriend knew of this

fifty thousand dollar policy, and he subsequently made arrangements for the defendant’s husband

to be killed. Unlike the case currently before us, in King, the defendant acted under the instruction

of her boyfriend. Indeed, it appears that her boyfriend hired himself to kill the victim, planned the

murder, and demanded payment for it later. In contrast, the defendant in this case painstakingly

planned every detail of the murder and took every measure to walk Milliken through each step of

the plan. He constructed alibis for himself and Milliken, and he even instructed both brothers on

how to act should they be interrogated by the police. Nevertheless, even if this case could not be

distinguished, “the isolated decision of a jury to afford mercy does not render a death sentence

disproportionate.” State v. Keen, 31 S.W.3d 196, 222 (Tenn. 2000).

Accordingly, we have identified cases involving circumstances similar to the crime in this

case, i.e., extreme premeditation, marital difficulties, life insurance proceeds, and the defendant’s

procurement of another to physically kill the victim. Based on our review of these cases in which

the death penalty was upheld, we conclude that the death sentence imposed for the premeditated

murder of Sandi Stevens and Myrtle Wilson was neither disproportionate to the death penalty

imposed in similar cases, nor arbitrarily applied.

CONCLUSION

In conclusion, after a thorough review of the record and relevant legal authorities, based on

the facts and circumstances of this case, we have determined that the defendant’s allegations of error

are without merit. The expert testimony regarding behavioral criminal analysis was properly

excluded as being unreliable; the exclusion of the prior bad acts of a nonparty witness, although

admissible under State v. DuBose, constituted harmless error in light of the overwhelming evidence

supporting a verdict of guilt beyond a reasonable doubt; and there is no evidence that the trial court

applied the evidentiary rules in a biased and arbitrary manner. Moreover, the evidence is sufficient

to support the jury’s finding of two aggravating circumstances beyond a reasonable doubt, and its

finding that the aggravating circumstances outweigh any mitigating circumstances beyond a

reasonable doubt. With respect to issues not specifically addressed in this opinion, we agree with

and affirm the decision of the Court of Criminal Appeals, authored by Judge David H. Welles and
-27-

joined by Judges Norma McGee Ogle and Alan E. Glenn. Relevant portions of that opinion are

attached as an appendix.

Therefore, we hold that the sentence of death was neither disproportionate, nor arbitrarily

applied. The conviction and sentence of William Richard Stevens is affirmed and the sentence shall

be carried out on the 13th day of September, 2002, unless otherwise ordered by this Court or proper

authority. As the record reflects that the defendant is indigent, costs of this appeal are assessed

against the State of Tennessee.

____________________________________

WILLIAM M. BARKER, JUSTICE
-28-

APPENDIX

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

April 24, 2001 Session

STATE OF TENNESSEE v. WILLIAM R. STEVENS

 Appeal from the Criminal Court for Davidson County

No. 98-A-825 Steve Dozier, Judge

No. M1999-02067-CCA-R3-DD - Filed May 30, 2001

INTRODUCTORY PARAGRAPH [OMITTED]

Tenn. Code Ann. § 39-13-206 Death Penalty Appeal; Judgment of the Criminal Court

Affirmed

DAVID H. WELLES,J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ALAN

E. GLENN, JJ., joined.

Brock Mehler and Michie Gibson, Jr., Nashville, Tennessee, for the appellant, William R. Stevens.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Jennifer

Smith, Assistant Attorney General; VictorS.Johnson, District Attorney General; and Tom Thurman,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The Defendant was convicted of two counts of first degree premeditated murder for the

double murder of his wife, Sandi Stevens, and his mother-in-law, Myrtle Wilson. He was also

convicted of especially aggravated robbery of Sandi Stevens, arising out of the same occurrence.

Both Sandi Stevens and Myrtle Wilson were found dead in their home in their respective bedrooms

on December 22, 1997. Sandi Stevens was found laying on her bed nude, with pornographic

magazines around her head and a photo album containing nude photographs of her on the bed.

Myrtle Wilson was also found laying on her bed; her nightgown had been pulled up and her

underwear was on the floor. The medical examiner determined that Myrtle Wilson died from stab

wounds andmanual strangulation, and Sandi Stevens died from ligature strangulation. Several items

of Sandi Stevens’ were taken from the trailer, giving rise to the robbery charge. The Defendant’s
-29-

convictions for these crimes were based on the theory of criminal responsibility for the actions of

another. The State’s proof at trial established that the Defendant hired his eighteen-year-old

neighbor and employee, Corey Milliken, to kill his wife and mother-in-law and to make it look like

a robbery. The Defendant’s theory was that Corey Milliken fabricated a “murder for hire fantasy”

and that he killed Sandi Stevens and Myrtle Wilson in the perpetration of a sexual assault. 

FACTUAL BACKGROUND [OMITTED]

1. TESTIMONY OF GREGG MCCRARY [OMITTED]

2. TESTIMONY REGARDING INDEPENDENT MOTIVE [OMITTED]

3. REDACTED VERSION OF SANDI STEVENS’ DIARY

The Defendant argues that the trial court erred by admitting a redacted version of Sandi

Stevens’ diary. The diary was admitted pursuant to Tennessee Rule of Evidence 803(3), which

provides a hearsay exception for statements of a declarant’s “then existing state of mind, emotion,

sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily

health).” In the diary, Sandi Stevens made statements concerning her unhappiness with her marriage

and her life. She was upset about the physical and mental effects of menopause and the Defendant’s

lack of understanding of her condition. She made references to multiple arguments that she and the

Defendant had, and she stated that she was considering leaving the marriage. The trial court

admitted the diary to rebut the Defendant’s statements that there were no problems in their marriage.

On appeal, the Defendant does not argue that the statements made in the diary do not fall within the

“state of mind” exception to the hearsay rule, but instead asserts that the diary was not relevant, and

even if the diary was relevant, its probative value was substantially outweighed by the danger of

unfair prejudice. He also contends that the diary was cumulative of other testimony concerning the

Defendant’s marriage to Ms. Stevens. 

A trial court’s decision to admit evidence based on its relevance will not be reversed absent

an abuse of discretion in admitting the evidence. Gilliland, 22 S.W.3d at 270. As previously stated,

relevant evidence is “evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be

without the evidence.” Tenn. R. Evid. 401. Our supreme court has previously held that statements

made by a victim expressing her fear of the defendant during the period of their separation were

relevant to rebut the defendant’s assertions that he and the victim were reconciling. See State v.

Smith, 868 S.W.2d 561, 573 (Tenn. 1993). Similarly, this Court has found that a victim’s statements

that her husband had abused her and threatened to kill her were relevant to rebut the defendant’s

assertion in opening statement that he and the victim “had a good marriage and a happy marriage.”

See State v. John Parker Roe, No. 02C01-9702-CR-00054, 1998 WL 7107, at *10 (Tenn. Crim.

App., Jackson, Jan. 12, 1998) perm. app. denied (Tenn. Jan. 4, 1999). 
-30-

The status of the Defendant’s relationship with Sandi Stevens became an issue in this case

when Shawn Austin testified that the Defendant wanted to kill his wife and mother-in-law so that

he would no longer have to pay their bills and listen to their complaints and because it would be

easier to kill them than go through another divorce. Then, in the statement he gave to the police, the

Defendant claimed that he cared “very deeply about [his] mother in law” and that he “love[d] [his]

wife.” He asserted that he and Ms. Stevens did not have any problems in their marriage. Although

he said that Ms. Stevens was always jealous and that she thought he cheated on her, the Defendant

maintained, “It’s always been that way,” and he asserted that it was not a problem in their marriage.

Thus, we agree with the trial court that Sandi Stevens’ statements concerning fights she had with the

Defendant, unhappiness with her marriage, and thoughts of leaving the Defendant were relevant to

rebut the Defendant’s assertion that there were no problems in their marriage.

Next, the Defendant asserts that the probative value of the diary was outweighed by the

danger of unfair prejudice. Under our Rules of Evidence, even relevant evidence may be excluded

“if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” Tenn. R. Evid. 403. While we agree with the Defendant that

Ms. Stevens’ emotional statements concerning her life and the problems in her marriage were

prejudicial to the Defendant, we do not believe that they were unfairly prejudicial. The Defendant

claimed that there were no problems in the marriage, making Ms. Stevens’ own statements about the

marriage the most probative evidence available to rebut the Defendant’s claims. Moreover, we

cannot agree that the diary should have been excluded because it was cumulative to other testimony

concerning the status of the Defendant’s marriage. The State had the burden of proving beyond a

reasonable doubt that the Defendant was criminally responsible for the murders of Sandi Stevens and

Myrtle Wilson, and the diary was the best evidence available to the State to show that there were

problems in the marriage, supporting the State’s theory of motive. In essence, the probative value

of the diary was not substantially outweighed by the danger of unfair prejudice.

Finally, the Defendant argues that the trial court should have admitted the entire diary rather

than admitting a redacted version, so that the jury could get a complete picture of Sandi Stevens’

emotional state. At trial, when the trial court indicated that it would admit portions of the diary but

redact the portions it found to be irrelevant or prejudicial, the Defendant requested that the entire

diary be admitted into evidence. The parties then went through various discussions about what

would and would not be admitted, and the trial court ultimately admitted a partially redacted version.

After looking at the redacted portions of the diary, we cannot say that the trial court abused its

discretion by redacting the diary. The redacted portions concerned statements about the Defendant

being “different” from the rest of society, statements about the Defendant lying to Ms. Stevens and

flirting with other women, statements about Ms. Stevens’ negative view of men in general, and

statements about Ms. Stevens’ negative feelings about herself. We agree with the court that these

statements were either irrelevant or prejudicial to the Defendant.

However, it does appear that the trial court inadvertently redacted a portion of the diary

concerning Ms. Stevens’ feelings toward Corey Milliken. At the request of the Defendant, the trial
-31-

court admitted portions of the diary containing statements of Ms. Stevens’ dislike of Corey Milliken

and of the fights she had with the Defendant about Mr. Milliken. Although it is unclear from the

record what actually transpired, it appears that the trial court intended to admit all the statements

regarding Corey Milliken, but the following statement was omitted:

And the way he (Cory) glares at me! Such hatred! He’s such a sick, troubled 18 yr.

old! I once tried to understand him & help him as Bill is doing but eventually gave

up simply because he doesn’t want to be helped. Doesn’t want to make the effort

because that takes work! Constantly skips school. Last week dropped out! I can’t

tolerate him anymore! 

Notwithstanding, we conclude that the omission of this statement, if error, was harmless. The trial

court did admit the following excerpt of Ms. Stevens’ diary, which depicts her feelings toward Mr.

Milliken:

Had a big fight late last night about Cory again! Bill continues to stick up for him

& I continue to dislike him more every day! I’m seriously considering leaving.

Things have gotten so bad it seems Bill & I argue about him constantly. I can see a

time coming when the wedge he’s (Cory) driven between us will tear us apart. Cory

Milliken is bad news! I’m sure he would be quite happy to move in if he can get me

out. He’s such a prick. No one in this world stupider or more untrustworthy! He’s

proven that time & time again.

An error will not be grounds for reversal unless it affirmatively appears to have affected the result

of the trial on the merits. See Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b). In light of the other

evidence concerning the relationship between Corey Milliken and Sandi Stevens, we cannot say that

this omission would have affected the result of the trial on the merits.

4. RULINGS ON HEARSAY AND OTHER EVIDENTIARY MATTERS [OMITTED]

5. COREY MILLIKEN’S STATEMENTS TO SARAH SUTTLE

Next, the Defendant claims that the trial court erred by failing to exclude the statements

Corey Milliken made to his girlfriend, Sarah Suttle, because those statements failed to qualify as

statements of a co-conspirator, which would have been excepted from the hearsay rule. See Tenn.

R. Evid. 803(1.2). Specifically, the Defendant asserts that those statements were made in “casual

conversation” and thus did nothing to further the alleged conspiracy in any way.

The Defendant correctly asserts that Sarah Suttle was permitted to testify in detail to the

statements made by Corey Milliken regarding the murders. However, the Defendant made no

objection to the testimony at trial. In fact, prior to calling Sarah Suttle as a witness, the State

informed the trial court that it intended to question Ms. Suttle about statements made by Mr.

Milliken in furtherance of the conspiracy. At that time, the Defendant stated that he had no objection

to the testimony, as evidenced by the following colloquy:
-32-

MR. GIBSON [Defense counsel]: I’m not trying to keep out Shawn Austin’s and

Sara Suttle’s testimony anyway. I –

GENERAL THURMAN [Prosecutor]: If they don’t have any objection, then that’s

fine. . . . 

THE COURT: Well, I mean, the issue, Mr. Gibson, is [--] General Thurman is

attempting to forewarn, or bring up so we won’t have to take so many breaks is, are

you saying you’re not opposed to their testimony; but, if their testimony [--] are you

saying that if their testimony consists of statements made by Corey Milliken about

this alleged plan, then you’re not opposed to that?

MR. GIBSON: No, Your Honor, I’m not.

At no point during Ms. Suttle’s testimony did the Defendant object to any hearsay statements made

by Corey Milliken. 

In State v. Smith, 24 S.W.3d 274 (Tenn. 2000), our supreme court stated, “When a party does

not object to the admissibility of evidence, . . . the evidence becomes admissible notwithstanding any

other Rule of Evidence to the contrary, and the jury may consider that evidence for its ‘natural

probative effects as if it were in law admissible.’” Id. at 280 (quoting State v. Harrington, 627

S.W.2d 345, 348 (Tenn. 1981)). Moreover, when a party decides to forgo objection to the

admissibility of evidence as a deliberate, tactical decision, this Court may not even consider whether

the admission of the evidence was plain error. See id. at 283-84. Here, when the State informed the

Defendant and the court that hearsay statements of Corey Milliken would be introduced, the

Defendant indicated that he had no objection to that testimony. Accordingly, we find that he has

waived consideration of whether the statements were admissible as an exception to the hearsay rule

by failing to object to the statements at trial. See id. at 280; Tenn. R. App. P. 36(a).

6. CUMULATIVE EFFECT OF ERRORS [OMITTED]

7. INSTRUCTING JURY THAT IT MUST UNANIMOUSLY AGREE

The Defendant asserts that the trial court erred by instructing the jury that it must

unanimously agree that the aggravating circumstances do not outweigh the mitigating circumstances

in order to impose a life sentence, while prohibiting an instruction on the effect of a non-unanimous

verdict. The trial court’s instruction followed the mandates of Tennessee Code Annotated section

39-13-204(f)(1) and (h), but the Defendant argues that the statute violates the Eighth and Fourteenth

Amendments to the United States Constitution in that it is misleading and coercive and it causes the

jury to arbitrarily arrive at a unanimous verdict in order to avoid the imagined adverse consequences

of a failure to agree on punishment.

This argument has been previously rejected by our supreme court. See State v. Vann, 976

S.W.2d 93, 118 (Tenn. 1998); State v. Smith, 893 S.W.2d 908, 926 (Tenn. 1994). Thus, we find no

error.

8. APPLICATION OF AGGRAVATING CIRCUMSTANCE
-33-

The Defendant next argues that the application of the Tennessee Code Annotated section 39-

13-204(i)(4) aggravating circumstance to his case duplicates an element of the underlying offense

and thus fails to fulfill its constitutionally required function of narrowing the class of death eligible

defendants. The Defendant was convicted of first degree murder based upon his criminal

responsibility for the conduct of Corey Milliken. The statute defining criminal responsibility

provides, in pertinent part:

A person is criminally responsible for an offense committed by the conduct of

another if:

. . . 

(2) Acting with intent to promote or assist the commission of the offense, or

to benefit in the proceeds or results of the offense, the person solicits, directs, aids,

or attempts to aid another person to commit the offense[.]

Tenn. Code Ann. § 39-11-402. One of the aggravating factors found to be applicable to the

Defendant then provides:

The defendant committed the murder for remuneration or the promise of

remuneration or employed another to commit the murder for remuneration or the

promise of remuneration[.]

Id. § 39-13-204(i)(4). The Defendant thus argues that he was unlawfully convicted of first degree

murder and sentenced to death based upon the same element: soliciting another to commit the act.

In Zant v. Stephens, 462 U.S. 862 (1983), the United States Supreme Court stated that in

order to comply with the Eighth Amendment to the Constitution, aggravating circumstances must

“genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the

imposition of a more severe sentence on the defendant compared to others found guilty of murder.”

Id. at 877. Our supreme court has maintained that “[a] proper narrowing device, therefore, provides

a principled way to distinguish the case in which the death penalty was imposed from the many cases

in which it was not.” State v. Middlebrooks, 840 S.W.2d 317, 343 (Tenn. 1992). In Middlebrooks,

a majority of our supreme court held that when a defendant is convicted of first degree felony

murder, application of the felony murder aggravating factor to the felony murder offense provides

no narrowing of death-eligible defendants because the aggravating factor duplicates the elements of

the offense. Id. at 346. However, our supreme court has also examined the situation at issue in this

case, and it held that the “aggravating circumstance -- [that] the defendant employed another to

commit the murder for remuneration or the promise of remuneration -- does not duplicate the

elements of the offense [of first-degree murder], even incorporating the criminal responsibility

statutes.” State v. Stephenson, 878 S.W.2d 530, 557 (Tenn. 1994). The court concluded,

Constitutional narrowing is accomplished becauseatthe sentencing hearing, the State

was required to prove that this defendant hired someone to kill his wife, or promised

to pay someone to kill his wife. Obviously, not every defendant who is guilty of

first-degree murder pursuant to the criminal responsibility statutes has also hired

another or promised to pay another to commit the murder. Thus, the aggravating
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circumstance found by the jury in this case narrows the class of death-eligible

defendants as required by State v. Middlebrooks.

Id. Accordingly, we conclude that the aggravating circumstance was properly applied to the

Defendant in this case.

9. PROPORTIONALITY REVIEW [OMITTED]

10. UNLIMITED PROSECUTORIAL DISCRETION

The Defendant asserts that due to the unlimited discretion of prosecutors in Tennessee as to

whether or not to seek the death penalty in a given case, the death penalty is imposed in an arbitrary

and disproportionate manner in violation of the Eighth and Fourteenth Amendments to the United

States Constitution. He further asserts that the prosecutor’s unfettered discretion to seek the death

penalty is an improper delegation of judicial power in violation of Article II, section 2 of the

Tennessee Constitution. Both of these arguments have been previously rejected by our supreme

court.

Applying the United States Supreme Court decision in Gregg v. Georgia, 428 U.S. 153, 198-

99 (1976), our supreme court has held that

opportunities for discretionary action occurring during the processing of a murder

case, including the authority of the state prosecutor to select those persons for whom

he wishes to seek capital punishment do not render the death penalty unconstitutional

on the theory that the opportunities for discretionary action render imposition of the

death penalty arbitrary or freakish. 

State v. Cazes, 875 S.W.2d 253, 268 (Tenn. 1994); see also State v. Brimmer, 876 S.W.2d 75, 86

(Tenn. 1994); State v. Hall, 958 S.W.2d 679, 716 (Tenn. 1997). Moreover, in Hall, our supreme

court expressly rejected the assertion that prosecutorial discretion to seek the death penalty violated

the separation of powers doctrine found in Article II, section 2, of the Tennessee Constitution. Hall,

958 S.W.2d at 716-17. Thus, this issue has no merit. 

11. DISCRIMINATORY IMPOSITION OF DEATH PENALTY

Finally, the Defendant argues that the death penalty is imposed in a discriminatory manner

on the basis of race, geography, and gender in violation of the Eighth and Fourteenth Amendments

to the United States Constitution. This argument has been rejected by our supreme court. See Hall,

958 S.W.2d at 717; Brimmer, 876 S.W.2d at 87 n.5; Cazes, 875 S.W.2d at 268. Furthermore, in

support of his argument, the Defendant cites general statistics which he says reflect the

discriminatory imposition of the death penalty; yet, the record contains no evidence indicating

improper discrimination regarding the sentencing of this Defendant. Statistics alone are insufficient
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to establish that the Defendant’s sentence was constitutionally deficient. See McClesky v. Kemp,

481 U.S. 279, 292-97 (1987); Hall, 958 S.W.2d at 717. 

CONCLUSION

After a thorough review of the record, we find no reversible error on the part of the trial

court. Additionally, we conclude that the Defendant’s sentences of death are not disproportionate

to other cases in which the death penalty has been imposed. The Defendant’s convictions and his

sentences of death are therefore affirmed. 

___________________________________ 

DAVID H. WELLES, JUDGE