### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON May 9, 2000 Session

STATE OF TENNESSEE v. CHARLES THOMPSON and VERICO JACKSON

Direct Appeal from the Criminal Court for Shelby County No. 96-11968, 97-05622 Chris Craft, Judge

No. W1998-00351-CCA-R10-CD - Filed August 9, 2001

On October 31, 1996, a Shelby County Grand Jury indicted Charles Thompson and Verico Jackson for first-degree murder. Later, the defenda nts were also indicted for conspiracy to commit murder. Following a jury trial

, the defendants

were convicted

on both counts. The trial court dismissed the conspiracy

charges, and, following a sentencing hearin g, sentenced Charles Thompson to life without parole and sentenced V

erico Jackson to lif

e. On appeal,

both defendants c

laim (1) that the evidence

was insufficient

to sustain the verdicts; (2) that the trial court should have severed the def

endants’ trials; (3) that the trial court erred by shackling defense witness es and/or providin

g extra security

in the courtroom; (4) that the trial court erroneously excluded the victim’s “dy ing declaration”; (5) that the trial court erroneously excluded evidence tha t people other tha

n the defendants

had recently threatened

the victim; and (6) that the trial cou rt errone ously overruled a motion for mistrial after

a witness testified that Defendant Thompson had prev iou sly o rder ed o the r mu rder s. A ddi tio nal ly, Defendant

Thompson claims (1)

that the trial cour

t erroneously

allowed the state

to use exhibits that hadbeen used in a previous trial of a codefe ndant; (2 ) that the trial court erroneously overruled a motion for mistrial afte

r an attorney

mentioned the tria

l o f a codefendant in violation of a court order; (3) that Defendant Jacks on’s atto rney had a conflict of interest that prejudiced Defenda nt Thompson; (4) tha t the trial court erroneously excluded the prior inconsistent statements of a wi tnes s; (5) that the trial court erroneously excluded evidence of a witness’s re putation for truthfulness;

(6) that the trial court erroneously denied Defendant Thompson’s request for a special jury instruction; and (7) that, at sente ncing, the trial

court erroneou

sly allowed t

he state to introduce prejudicial evid

ence of prior ba

d acts. Finding no reversible error, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Criminal C

ourt is Affirmed.

J ERRY L. S MITH , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R . and R OBERT W. W EDEMEYER , JJ, joined.-2-

Paula Skahan and Gerald Skahan, Memphis, Tennessee, for appellant, Charles Thompson
James Ball and Joseph Ozment, Memphis, Tennessee, for appellant, Verico Jackson.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, DistrictAttorney Genera l; Jerry Harris; J

erry Kitchen, As sistant District Att orneys; for appellee, State of Tennessee.

OPINION

Factual Backgrou

nd

In 1996, Charles Thompson andVerico Jackson were both high-ranking members of a gang calledthe “Traveling Vice Lords.” On April 19, 1996, Charles Thompson was incarcerated in the Shelby County Justice Center where he had a verba l altercation with a Sergeant Dedrick Taylor, a Justice Center employee. Following that altercation, Charles Thompson telephoned Verico Jackson at a local apartment and told Jackson that he wanted Sergeant Taylor killed and that he wante

d to

see news of the killing on television the next morning. Jackson then relatedthat conversat ion to other members of the gang who were present in the apartment. Jackson and the other members of the gang armed themselves and left the apartment. They walked toward the street on which Sergeant Taylor and his wife lived.

Jackson the n told the other gang members to kill Sergeant Taylor. Shortly thereafter

Sergeant Taylor pulled into his driveway where he was shot several times. His wife heard gunshots, but did not see who shot Sergeant Taylor. Sergeant Tay lor died from the gunshot wounds. Margaretta

Dotson, a woman who was with the gang members earlier in the evening, heard gunshotscoming from the area of Sergeant Taylor’s house. Immediately after hearing the shots, she

saw all of the gang members run and jump into a car and dri ve aw ay. She then returned to the apartment that Charles Thompson had phoned earlier; there she found Jackson and the other

gang members. They all watched the local news, and saw a report about the shooting of Sergeant Tay lor. When the news report aired, Jackson and the other gang members

celebrated and

made “gang- signs” to one another. The defendants were charged with first-degree murder andconspiracy

to commit first-degree murder. Following a jury

trial, both defendants were convicted on both counts. The court dismissed the conspiracy charges on double jeopardy grounds. After a sentencing hearing, Defendant Thompson was sentenced to life without the possibility of parole and Defendant Jackson was sentenced to life.
Sufficiency First, both appellants claim that the evidence wa

s insufficient to su

pport their convic

tions. When an appellant challenges the sufficiency of the e vidence, this court is obliged to review that challenge acco rdi ng to cert ain wel l-s ett led pri nci ple s. A verd ict of gu ilt y by th e ju ry, approved by the trial judge, accredits the testimony of t he S tate's witnesses and resolves all conflicts in the-3-

testimonyin favor of the State. State v. Caz es , 875 S.W.2d 253, 259 (Tenn. 1994). Although an accused is originally cloaked with a presumption of innocence, a jury verdic

t removes this presumption and replaces it with one of guilt. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the appellant to demonstrate the insufficiency of the convicting evidence. Id. On appeal, the state is entitled to the strongest legitimate view of the evidence as well as all reasonable

and legitimate inferences that may be drawn therefrom. State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). Where the sufficiency of the evidence is contested, the relevant question for the reviewing court

is whether any rational trier of fact could have found the accused guilty of every element of the offense beyond a reasonable doubt. State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992); Tenn

. R . App. P. 13(e). I n conducting our

evaluation of the

convicting evid

ence, this Court is precluded from reweighing or reconsidering the evidence. State v. Morgan , 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996). Moreover, this Court may not substitute its own inferences "f

or those drawn by the trier of fact from circumstan tial evidence." State v. Matthews
, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). I n this case, the defendants were found guilty of being criminally responsible for the f irst

degree murder of

Dedrick Taylor. "A person is criminally responsible for anoffense committed by the conduct of another if . . . [a]cting with intent to promote or assist the commission of the offense,

or to benefit in the pr

oceeds or result

s of the offense,

the person solicits , directs, aid s, or attempts to aid another person to commit the offense." Tenn. Code Ann. § 39-11-402(2). First degree murder is "[a] premeditated and intentional killing of another." Tenn. Code. Ann. § 39-13-202(a)(1). The evidence in this case was sufficient to support an inference that Char les Thompso n ordered Verico Jackson to kill Sergeant Taylor and that Verico Jack son carried out that or der through subordinate

members of the TravelingVice Lords. Charles Taylor, an inmate, testified that Serg eant Taylor andCharles Thompson had a verbal altercation. He further testified that he heard Thompson telephone someone andask for Verico Jackson. Mr. Taylor overheard Charles Thompson say that he wanted Sergeant Taylor killed and that he (Charles Thompson) wa nted to see eviden ce of

the killing on the news the next morning. Margaretta Dotson testified that she was visiting an apartment where Verico Jackson was on April 19, 199 6 and that J ackson got a phone call between 7:00 and 7:30 that evening. Jacksontook the phone in another room to take the call. After Jackson got off the phone, he and several other gang members in the apartment began loa ding weapons. Robert Meyer,

a specialist in charge of the inmate telephone system, t estified tha t a phone call was made from prison “pod” 4-f to the apartment in question at 7:32 p.m. Charl es Gol den, a member of the Traveling Vice Lords, testified that he was at the apartment with Jackson the night of the crime. He said that Jackson told him (Golden) about the altercation between Thompson and the victim and that “no one could do that to

his chief.” Golden

said that when the other gang members said that they should kill the victim, Jackson replied “[T]hat’s what we gonna do.” Golden, Jackson, and two other

men walked to a local night club nearby. Jackson stayed in the club, while Golden and the two other

men found and fatally shot Sergeant Tay

lor. Mr. Golden te

stified that he shot

a .38 caliber tha

t night. Alphonso Fleming testified that, approximately April 25th or 26th, Charles G olden asked him to hold a .38 caliber gun. Mr. Fleming hid th e gun in a closet

until police came a

nd confiscated it

. Tommy Heflin, a TBI firearms identification expert, tes tified that all ni neteen shell casings recovered at the scene of the murder

were fired from the weapon discovered in Mr. Fleming’s closet and that1 Contrary to Mr. Jac kson’s b rief, Mr. T aylor’s testi mony did not indicate that he was present when Mr.

Thompson planned the mu rder. Furth ermor e, althoug h Mr. T aylor testi fied that he acted as “security” for Mr. Thompson when Mr. Thompson phoned Mr. Jackson, Mr. Taylor merel

y overheard Mr. Thompson order Mr. Jac

kson
to kill Se rgeant Taylor. S tanding alone, this ev idence d oes not cle arly indica te that Mr. T aylor w as an acco mplice. An accomplice is defined a s a person who k nowin gly, volu ntarily and with common intent unites with the pri ncipal offender in the com mission o f the crim e. State v. Anderson
, 985 S.W.2d 9, 16 (Ten n. Crim. A pp. 199 7). "A co mmo n test is whether the alleged accomplice coul d have been indicted for the offense." State v. Perkinson
, 867 S.W.2d 1, 7 (Tenn. Cri m. App. 1 992). In this case, there was no evidence that Mr. Taylor knew about the murder until a fter Mr. Thompson had ordered it

. Nor was ther

e any test

imony that Mr. Tayl

or provided security in o rder to pro ceed w ith the plot to kill Sergeant Taylor. See State v. Ladonte Montez Sm ith, Joe Da vis Martin , and Sha un Fly S mith
, No.M199 700087CC AR3CD , 1999 WL 1 210813, *9 (Ten n. Crim. App. at Nashville, Dec. 17, 1999).

-4- several bullet fragments could have been fir ed fr om t hat gun. Fin all y, Marcus Daniels, another gang member, testified that Charles Thompsonwas a ruling member of the ga ng, and that othe

rs had to abide by his o

rders. The evide

nce was clearl

y sufficie nt to support the jur

y’s verdic t. Jackson also claims, howev er, that the evide

nce was insuffic

ient because all

of the evidence against Jackson was uncorroborated accomplice testimony. Specifically , he clai ms that Charles Golden and Charles Taylor were both accomplices and that neither’s testimony was corroborated in crucial respects. “In Tennessee, it is well-settled that a defendant cannot be co nv icted on the uncorroborated

testimony of an

accomplice.” State v. Heflin , 15 S.W.3d 519, 524 (Tenn. Crim. App. 1999)(citing State v. Bigbee
, 885 S.W.2d 797, 803 (Tenn. 1994)). As the Tennessee Supreme Court has noted, however, [t]his corroborative evidence may be direct or entirely circumstantial, and it need not be ad equate, in and of itself, to support a conviction; it is sufficient to meet the requirements

of the rule if it fa

ir ly and legitimately tends to connect the defendant withthe commission of the crime charged. It is not necessary that the corroboration extend to every part of the accomplice's evidenc e. The corroboration need not be

co nclusive
, but it is sufficient if this evidence, of itself, tends to connect the defen dant with the commission of the offense, although the evidence is slight and entitled, when standing alone, to but little consideration.
Bigbee
, 885 S.W.2d at 803. Thus, "only slight circumstances are required to c orroborate an accomplice 's testimony." Statev. Griffis , 964 S.W.2d 577, 589 (Tenn. Crim. App. 1 997); see also Heflin
, 15 S.W.3d at 524. Whether an accomplice's testimony ha s been sufficien

tly corrobo

rated is a jury question. Bigbee , 885 S.W.2d at 803. Init ial ly, we are not convinced that Charles Taylor was an acc omplice. 1 In any event, we find that the testimony of Mr. Taylor and Mr. Golden was suff iciently corroborated by the testimony of Margaretta

Dodson, Robert Meyer and Tom Maupin. Ms. Dodson te stified that she wa

s with Mr. Jackson, Charles Golden, Thomas Cummings, Rory Haywood and Hubert Bond on April 19, 1996. At approximately 7:00 p.m. or 7:30 p.m., Mr. Jackson received a phone call. He took thephone into

a bedroom in the apartment and motioned for Mr. Golden, Mr. Cumming s and Mr. Hay

wood to join him in the bedroom. Ms. D

odson testified tha

t she and Mr. Bond

st epped outside for a mome nt. When she steppedback inside, the four other men were loading weapons. After that, Ms. Dodson,-5-

Mr. Bond s, a nd t he o the rs l eft the apar tme nt. Ms. Dod son tol d th e ju ry that she ove rheard Mr. Jackson tell Mr. Golden that they were “fixing to go over here and t a ke care of their business.” Verico Jackson went into a local bar, but the others remained outside. At some point, R ory Haywood told Ms. Dodson to tell them when it was 10:00 p.m. Before Ms. D odson could

tell them it was 10:00, however, Mr. Golden , Mr. Cummings and Mr. Haywood left on foot toward the victim’s house. Mr. Bonds also left, but he went in another direction. After that, Ms. Dodson started walking towardher friend’s hou se when she hear

d several gunsh

ots. Following the

gunshots, Ms. Dodson saw Mr. Golden, Mr. Cummings and Mr. Haywood all running from the direction of the shots. They all jumped in Mr. Cummings car, an d Verico Jackson ju

mped in with them.The four

men drove back to theapartment, while Ms. Dodson and Mr. Bonds walked back to the apartment. Some time after they all returned to the apartment, the local television news reported that

Sergeant Taylor had been shot. Ms. Dodson testified that when the men in the apartment heard the news, they all began to celebrate, and Mr. Jackson told Mr. Golden, Mr. Cummings and Mr. Haywood that they “took care of business.” Robert Meyer and Tom Maupin al so corrob orated the testimony of Charles Golden and Charles Taylor. Robert Meyer, a te lec om mun ica tio ns c ons ult ant wor kin g for She lby C oun ty, testified that

several t elephone calls w

ere made from Cha

rles Thompson’s pr

ison pod to a certa

in telephone number

in Shelby County on the day of the murder, including a fifteen-minute call made at 7:32 p.m. Tom Maupi n, a Bell South employee, verified that the telephone number that Mr. Maupin referred to was the apartment that Ms. Dodson and Mr. Golden had testified about, and where Verico Jackson too k the call. In

sum, th e testimony of Charles Golden and Charles Tay lor was well-corroborated by other testimony in this case. This issue is without m

erit. Severance Next, both defendants claim that the trial court sho uld hav e tr ied each defe nda nt s epar ate ly. Jackson has waived

this issue, becaus

e he did not raise the issue prior to trial or base his motion on

a ground not previ

ously known. Rule 14 of the Tennessee Rules of Criminal Procedur

e provides, in pertinent pa

rt, “[A ] defendant's motion for severance of offenses or defendants must be made before trial, except that a motion for severance may be made before or at the close of all evidence if based upon a ground

not previously

known. Severance is waived if the motion is not made at the appropriate time. ” Tenn. R. Crim. P. 14(a)(emphasis added). Because Thompson raisedthe issue at the ap propriate time, w

e will address the

merits of his claim. At a pre-trial he aring, Thompson c

laimed that severan ce was necessary because he anticipatedthat the two defendants’ theories of the c ase were diffe

rent and that a joi

nt trial would force Thompson t o defend again st both the state’s t

heory and Ja

ckson’s theory

. Thompson also feared that if Jackson testified and Thompson did not, the jury would likely infer that Thompson was being evasive. Finally, Thompson was fearful that evidence presented by Jackson might incriminate Thompson. Whether a severanc e should be granted is a matter entrusted to the sound discretion of the trial court, and a reviewing court may not disturb the trial court’s ruling absent an

abuse of discretion that resulted in clea

r prejudice to

the defendant. See State v. Hutchison , 898 S.W.2d 161, 166 (Tenn. 1994). Indee

d, the Tennessee

Supreme Court rec

ently remind

ed us that2 We also note that Mr. Thom pson’s fear, i.e., that i f Mr. Jackson testified then the jury would believe that Mr. Thompson ’s refusal to testify implied th at he was hiding so methin g, was m oot, beca use Mr . Jackson did not testify.

-6- [t]he state, as well as the persons accused, is entitled to have its rights protected, and when several persons are charged jointly with a sing le cr ime, we think the sta te is entitled to have the fact of guilt determined and the punishment assessed in a sing

le trial, unless to do so would unfairly prejudice the rights of the defendants.

Statev. Carruthers , 35 S.W.3d 516, 552-53 (Tenn. 2000)(quoting Woodruff v. State , 164 Tenn. 530, 538-39, 51 S.W.2d 843, 845 (1932)). We find no such preju

dice here. Acc

ording to Thompson’s brief, his theory was that he never intendedto convey to

Jackson that he wan

ted the victim

killed, while Jackson’s theory wasthat he only i ntended to

frighten the victim to impress Thompson. Although the defendants’ respective theories of the case wer

e different, Tho

mpson has not shown h

ow this resulted in a

vitiation of his rights. See State v. Ensley , 956 S.W.2d 502, 509 (Tenn. Crim. App. 1996 ). Furthermore, a

severance need not be granted where the evidence which was introduced could have been admitted against him in a separate trial. State v. Little , 854 S.W.2d 643, 648 (T enn. Crim. App. 1992

). In this

ca se , the state’s theory was that Thompson and Jackson engaged in a conspira cy to murder the victim, so the evidence would have been essentially the same whethe r the defendants were tried separately or together. 2 See Carruthers , 35 S.W.3d at 554 n.39 (Tenn. 2000). Thompson also complains that he was prejudiced by Jackson’s attorneyduring trial. In a pretrial order, the trial court prohibited any inquiries about Charles Golden’s trial. When Charles Taylor testified, Jackson’s attorney asked him about his testimony a

t Charles Golden’ s trial. Because this

was in violation of a court order, Thompson claims that the trial court erred when it refused to sever the trials or gra

nt a mistrial. Again, we find no prejudice to Mr. Thompson. As Jackson’s attorney was cross-examining Charles Taylor, the following colloquy oc curred: MR. BALL (Jackson’s Attorney ): Okay. Now

you testified on March

18, 1997 in the trial of Charles Golden in this very courtroom, didn’t you?

CHARLES TAYLOR: Yes, I did.

THE COURT: We had a

hearing, Mr. Ball, about Mr. Golden. He’s testified before, but we don’t need t

o get into what al

l that was about.
Thompson then moved

for severance

or a mistrial, and t

he trial court de

nied the request:

THE COURT: All right. Mr. Ball has not asked anything as far as what’s happened withyour client that the state didn’t or couldn’t ask. As far

as Mr. Golden’s trial, the fact that he was tried

or not has nothing

– is not prejudicial in the least. We haven’t talkedabout any verdicts or conclusions. And so I’m going to overrule your motion for a mistrial at this time. Also overrule your motion for severance.-7-

We agree with the trial court that no prejudice resulted from the mention of Mr. Golden’s trial, and that a severance was unnecessary. F or the same reasons , we find that the q uestion did

not create a “manifest necessity” requiring a mistrial. See Sta te v. Jones , 15 S.W.3d 880, 893 (Tenn. Crim. App. 1999)(citations omitted). This issue is without merit.

Courtroom Security Next, defendant Thomps

on complains that he

was denied a fai

r trial because

the trial court employ ed e xtraordinary security measures during the trial. Those measures apparently included posting a metal detector

outside the courtr

oom, posting sign

s that stated that c

ertain items would

not be allowed in the cou

rtroom, and marki

ng the entranc

e to the courtroom

w ith “poli ce tape.” Thompson argues that the se extraordinary

measures must

have created an unfair impression in the jur ors’ minds that the defendant was dangerous. Additionally, both defendants complain that the trial court erre d by allowing several defense witnesses to appear before the jury in shackles, while the state’s witnesses appeared without shackles. Finally, Thompson argues that the trial court erred by forcing the de fense w itnesses to enter the courtroom through a door that led to the jail, while the state’s witnesses were allowed to enter the courtroom through the public entrance. It is well settled that the trial court has broad discretionin controlling the course and conduct of the trial. See Pique v. State , 480 S.W.2d 546, 550-551 (Tenn. Crim. App. 1971). The trial court didnot abuse its discretion by providing extraordinary sec urity measuresin this case, because it was

a reasonable response to the situation t hat did not prejudice the defendant. The jury knew that several of the witnesses were prison inmates, and several of the witnesses admitted to having been in gangs. See State v. Sutton , 761 S.W.2d 763, 769 (Tenn. 1988)(holding th at guard’s rea

ction in reaching for weapons in re sponse to placement of suspected murder weapon, a homemade knife, on defense table within

reach of defendant did not deprive defendant of physical indicia of innocenc e where jury knew defendant, along with coperpetrators, we re all inmates incar

cerated in prison). W

e find no evidence that the security measures prejudiced Def endant Thompson. We are also unconvinced that the trial co urt’s shackling of some defense witnesses prejudiced either defendant. Although both defendants rely on both fede ral and state case law, all of the Tennesseecases involve situations in which the defendant was shackled, not the defense witness es. Because shackling a def

endant may a

dversely affect the presumption

of the defendant’s innocence, the use of restraints ondefendants can only be justified as a necessary measure (1) to prevent e scape, (2) to protect those pr

esent in the court

room, and (3) to ma

intain order duri

ng the tria

l. Stat e v. Thompson
, 832 S.W.2d 577, 580 (Tenn. Crim. App. 1991)(citation s omitte d). Unlike a shackled defendant,

shackled witnesses do not directly affect the defendant’s presumption of innocence. See Kennedy v. Cardwell , 487 F.2d 101, n.5 (6th Cir. 1973). How ever, because shackling a def

ense witness may affec

t the jury’s d

etermination of th

e witn es s’s credibility and thus prejudice the defendant,

most courts, including federal courts, use the same standard of review in both defendant shackling and witness shackling cases. Kennedy , 487 F.2dat 105; Williams v. State , 629 P.2d 54 (Alaska 1981); People v. Duran , 16 Cal. 3d 282, 127 Cal. Rptr. 618, 621 n. 4, 545 P.2d 1322, 1325

n. 4 (1976); State v. Jackson , 698 So.2d 1299, 1303 (Fla. Ct . App. 1997); Parker v. State , 567 N.E.2d 105 (Ind. Ct. App. 1991); State v. Coursolle, 255 Minn. 384, 97 N.W.2d 472, 476 (1959);-8-

State v. Simmons
, 26 Wash. App. 917, 614 P.2d 1316 (1980); R. P. Davis, Annotation, Right of Accused to Have His Witnesse

s Free from Han

dcuffs, Manacles, Shackles, or the Like,75 A.L.R.2d 762 (1961). Thus, we h

old that the decisio

n whether to restr

aina defense witness is left to the sound discretion of the trial court, subject to the same considerations that would app l y to the physical restraint of a defendant. The trial court’s re

cognition of the p

otential prejudic

e is evident in the following col loq uy: THE COU RT: Oka y. I

think we’re all agreed. We need – we need some guidance from all six attorne ys. We’re go ing to bring this witness around through – from Division I around the back. When we handle inmates, I don’t want, if Mr. Montgomery

and Mr. Carruthers are here, I would like to have them shackled, and if they’re g oing to be defen

se witnesses – if it’ s all rig ht with you all , we’ll just shackle all our in

mates. Every

single one of the

m.

MR. HAR RIS ( pro secu tor ): Y our Hon or, we wo uld res pect ful ly, and I’m not objecting. I don’t a big – I’m not arguing w ith the Court, butI

respectfully

submit to the Court this: Mr. Charles Taylor has been exceptionally cooperative with us and withhis attorney. He even met with the others and all of

that. To shackle him when he has done nothing and when he puts in an appearance,he shouldn’t be taken down and be treated li

ke James Montgomer

y and Tony

Carruthers.

THE COURT: Yes, sir.

MR. HARRIS: He’s not – it’s not fair to him. And it’s also not fair to the state. And I say that in a legal way

and I think the Court --

THE COURT: I understand. And the only problem I have is that – and I understand that is that I can’t have an

appearance that

the defense witnesses are untrustworthy andon death row and the state’s witnesses aren’t. You know that’s the problem that I have, the pe

rceptual.

MR. HARRIS: But my point, Your Hon o r, very simply . . . is this. Charles Tay lor hasn’t done anything to be shackled. I mea n he didn’t – I mean it’s – he hasn’t done anything a

nd it puts an aura th

ere that is unfair

to him.

THE COURT: Yes, sir. But I’ m going to tell the jury before we call any body that every time we bring an inmate in, we’re going to shack l e them and it says nothing about the inmate. It’s just the rule of criminal court. That we have this rule.

MS. SKAHAN (Thompson’s attorney): Just for the record, Judge. I mean, of course,

man has escaped. But for the reco rd, we don’ t object to him coming in without shackles. And if your Honor sees fit to only shackle Car ruthers and Montgomery, we don’t have a prob

lem with that.-9-

THE COURT: Maybe Mr. Mc – whatever his name is. McGlowan?
MS. SKAHAN: Sydney McGlowan?

THE COURT: Can we let them shackle whoever th ey want to as long as we don’t shackle your –

MS. SKAHAN: As long as it’s not only our defense witnesses. Because I don’t think all of them need to be shackled.

THE COURT : Okay. A ll right. So at this po int, it’s not an issue . All right. I f it becomes an issue, let me know it and we’ll start shackling people.

After the state had finished its case-in-chief, Thompson’s attorney raised the issue of
shackled witnesses again:

MS. SKAHAN: Judge, if I could address you about, I think

a very important matter. I just wentback and talked w ith our first two witnesses, who are inmates. They are in on nonviolent offenses. They are shackled.

THE COURT: Yes, ma’ am.

MS. SKAHAN: And the state’s witnesses, one pe rson convicted of

murder in the firs

t degree and serving a life without parole sentence, c ame in here without shackles. And another man who is facing murder in the f irst-degree and numerous other charges, who h

as, in fact, esca

ped, was not broug

ht in here in shack

les. And that’s

a huge difference. The jury’s g oing to think our witnesses are these dang

erous people testifying for the defense

, and obviously

we can’t trust the

m to behave i n the courtroom. And I

object to that.

THE COURT: Okay. Now we had a di scu ssi on o f th is a few d ays ago, and I brought it up voluntarily. And at that time you said y ou didn’t care.
MS. SKAHAN: I said either everyone shackle d or no one shackled.
THE COURT: Okay. That wasn’t the discussion.

MS. SKAHAN: J udge, I did not say I don’t care. We were discussing either shackling everybody

I thought or no one.-10-

THE COURT: Well, and then everyone said it didn’t make a

difference to

them. And I believe you

stated on the record you didn’t care whether or not the state’s witnesses were shackled.

MS. SKAHAN: What I didn’t care about was whether Tony Carruthers and J ames Montgomery

were shackled. I thought that would be a

good idea. And that’s what I recall if I said I don’t care. And I think I did, was about Tony Car ruthers and James Mon tgom ery.

THE COU RT: Oka y. Ok ay.
MS. SKAHAN: That they probably need to be shac kled.

THE COURT: Mr. Har

ris?

MR. HARRIS: Your Honor, the Court’s memory is, of course, a lot better

than mine. Butif I r emember right, Your Honor, the concern that the Court initially had wa s because of threats to disrupt the proceedings of the Court that had been transmitted. These came from certain witnesses. And I think we get to a point, Your Honor, where who – th e qu est ion the n be com es, who is i n ch arge of s ecur ity? And I know the state is not. But al

l I’m say ing is this, is this when these people are being brought in, the Sheriff’s Department and the She riff’s Dep uti es, the y hav e a re spo nsi bil ity. And I think that’s what

they’re tr ying to do is t

o exercise that re

sponsibility in

a good way, and in a way

that will not endanger anyone. And I submit to youthat it’s better to err on the side of

safety tha

n to be flippant and

let things happen. And these people are acting becaus

e of things – they

’re not say

ing arbitrarily

all the defense witnesses will be shackled. What they’re doing is they’re reacting to a situation that has occurred. It’s well documented. It began when these people were subpoenaed. It began when the

y appeare d in the jail. It

began – and it’ s gone on through, and statements

that t hey’ve m ade, a nd I don ’t think there’s a ny use in me r

ehashing all of that. But I

think that that is a very real interest, and a very real responsibility for the Sheriff’s Department to carry these thin gs out. And I think they should be allowedto do their job. The Court can enter a

curative instruc

tion to tell the jury to disregard it. And you can handle it. It’s been done in othe r cases. I’ve tried defendants

Your Honor that

– I tried defendants who have been shackled because of their own --

THE COURT: Sure.

MR. HARRIS: And that’s ---11-

THE COURT: Well, th

e reason I bro ught it up ahead o f time is I was g

oing to shackle all the witnes ses. And I was told nobody cared. So I didn’t shackle the State’s witnesses. And now that’s causing problems. Yes sir?
MR. OZMENT: (Jackson’s attorney): If I may, Your Honor, I think it’s clear as far

as the defense is concerned, our concern was certainly , we didn’t careif Carruthers andMontgomery

were shackled.

I don’t t hink there ’s any doubt about those two individuals,the dangerousness, the whole fiasco in Division Five in that trial. I don’t think ther e’s any

question about that. And I think that’s what we – we have no problem with that.
THE COURT: All rig

ht.

MR. OZMENT: Your Honor, the concern is that here weare, the State’s witnesses don’t have to be shackled no matter what they’re con victed of, y

et the defense witnesses do. If these

people are

in on non-violent offenses, Your Honor, and thing of that nature, there is no reason for them to be shackl ed. And Your Honor, the state’s – I think what th

e state consider

s a threat or some

thing like that,

Your Honor, I think is evidenced by what ’ s on those tapes that you listened to yesterday , Your Honor. And if they have some proof --

THE COURT: Mr. Ozment, what I consider a threat is we’ve had statements made

ove rthe telephon e by inmates. Just wait. I’m going to make Division Eight an

absolutecirc us when we go to trial. Now some of the witnesses that were subpoenaed

in this case, M r. McGlowan is going to be shackled. No question. Carruthers and Montgomery are going to be shackled. And if there’s any body else the Sheriff’s Depa

rtment thinks need

s to be shackled, w

e can. The proble

m that I have is that in order, because we wanted a lot of the se people shackled, that’s why

on the front

end I sai d, a ll r ight , we ’ll sha ckl e eve rybo dy. A nd I w as t old , ba sic all y, it’s a nonissue. We don’t care. So here’s what we’ll do then. We will shackl

e Mr. Carruthers and Montgomer y if t hey’re called. We’ll shackle Mr. McGlowan. Whatever his name is. The one starting with “M-C.”
MS. SKAHAN. Sydney McGlowan.

THE COURT: And if

there is anyone else that the Sheriff’s Department feels needs to be shackled fo

r different rea

sons, let me know, a

nd we will have a h

earing on it.
MS. SKAHAN: Sure. Sure. That’s fine. Thank you, Judge.
Following that colloquy, the court informed the jury that some witnesses would appear in shackles and ins tru cte d th e ju ry th at a ny res tra int s sh oul d no t be ar on the wit nes ses ’s c redi bil ity.3 In fact, it appear

s from the re

cord that onl

y three defe

nse witnes ses were sha ckled.

-12- In this case, the court was justifiably concerned about maintaining order a n d abou t the security of those present in the courtroom, because the record indicates that inmates had made t

hreats to disrupt the trial. The court held two hearings out of the presence of the jury before allowing the Sheriff’s Department to shackle any witnesses. Furthermore, although Thompson’s brief states that “ul tim ate ly, most of the defense witne sse s were shackled,” the record is unclear which witnesses

were actually shackled. 3 Finally, we are satisfied that any prejudice was cure d by the co urt’s extensive curative instruction. See State v. Larry David Reeves and

George Edwin H

ardin , CCA No. 3, Lauderdale County, 1989 WL 73005, *5 (Te nn. Crim. App. at

Jackson, Jul. 5, 19 89). Altho ugh the trial judge remarked that it would “leave security up to the sec urity people,” the comment was made during the curative instruction and simply implied that the presence or absence of shackles wa s not a comment on the

witnesses’ char

acter by th

e court. Fin all y, Thompson has failed to demonstrate how he has been prejudiced by the court’s order that the defense witnesses enter through a different door than the state’s witnesses. The r ecord indicates that the court’s r uling was an eff

ort to maintain sec

urity while c

omplying wi

th defense requests to minimize that security’s impact on the jury. Indeed, in deny

ing Thompson’s request that the defense witnesses be brought through the same door

as the state’s witnesses, the court remarked as follows (out of the presence of the jury): Just so everybody else will know, also one of the r easons that

we brought the state’s witnesses through the back door is because

we did not want to bring them in front of the two defendants in this case, because of fears of threats or intimidation, whether

or not true. And we have, whe n they come i

n the courtroom,

we have a lot of back up in the halls that we didn’t want the jury to see because the defense doesn’t want the jury to see a lot

of security and be scared. For the same reason, we have a lot of DRT teams bringing up the defendants. We don’t allow the jury to see t hem. So what we’re try

ing to do is just keep any body from be

ing killed or hurt

. And all anybody has to do is just

create a big disturbance, and I know – I know ever ybod y – that the defense will be ask ing for a mis trial, and I’m just not go ing t o allow it to happen.

Moreover, while the record indicates that the defense witnesses entered through a different door than the state’s witnesses, nothing in the record verifies Thompson’s assertion that he suffered an y prejudice as a r

esult. This issue is without m

erit.

Prior Threats Both defendants assert that

the trial court erred in refusing to allow Sandra Ta

ylor to testify that herhusband had been threatened by two other inmates, Tony Carruthers and Jam e s Mon tgom ery, shortly bef

ore he was killed. Prior to trial, the court he

ld that the offered testimony

was ina dmi ssi ble hear say. “‘Hearsay ’ is a

statement, other than one made by the declarant while testify ing at the trial

or hearing, offered in evidence to prove the truth of the matter asserted. ” Tenn. R. Evid. 801(c).-13-

Sim ila rly, testimony by the victim’s wife that the victim told her that someone threate

ned him would have been hearsay if

offered to prove

the truth of the sta

tement. Thus, the victim’s wife’s testimony that the victim told her that he received other threats is hearsay without an exception. See Tenn. R. Evid. 805. We also note that this ruling did not prohibit the defen se fro m offering evidence that the victim had previously been threatened by other inmates. Several witnes ses, including James Montgomery

himself, testified that

Mr. Montgomery had threatened the victim in the past, but the jury apparently assigne

d little weight to that evidence. This issue is without merit.
Dying Declaratio ns Sim ila rly, both defendants claim the trial court erred by excluding declara tions made by the deceased shortly before his death. Spe cif ica lly, the defendants claim that Officer Joseph Poindexter, who arrived at the murder scene shortly after Serg eant Taylor wasshot, heard Sergeant Taylor repeat the name “Carruthers” several times. The defendants

argue that the statements constituted a dying declaration, and as such they should have been a

dmissible as an exception to the hearsay rule under Tenn. R. Evid. 804(b)(2). We need not decide whether the r equir ements of Tenn. R. E vid. 804(b)(2) ha

ve been met, however, because Officer Poindexter never understood what Sergeant Tay lor said. At a jury-out hearing, Offi

cer Poindexter tes

tified that he was

the first officer to arrive at the scene. He told the court that he hear d Sergeant Ta ylor mumble so mething but was unable t o understan d the mumbl ing. He testified that

Sandra Tay

lor then told him

that Sergeant Taylor had said the name “Carruther s.” Mrs. Taylor’s interpretation of her husband’s statement, repeated by Officer Poindexter, was he arsay without an exception. See Tenn. R. Evid. 805. This issue is without m

erit.
Previously Marked Exhibits Next, Thompson claims that the trial court erred by allowing the introduction of exhibits that hadbeen previously used

in the trial of Charles Golden. He claims that the exhibits were prejudicial because they s till contained exhibi

t stickers from the

previous trial an

d thus allowed juro

rs to “wonder what the previous hearing concerned.” Other than physical evidence and a crime scene diag ram, only four photographs, o f f ifty introduced, were used in

a previous trial. Tags indicating that the photographs had previously been exhibits were atta

ched to those photographs. However, no other information is provided on the exhibit tags. Thus, the jury did not know where or how the exhibits were used previously, the

name of any other defendant, or the outcome of any hearing. In short, even if any prejudice resulted from th e use of the exhibits, s

uch prejudice wa

s slight and did not s

ubstantially

outweigh the pro

bati v e value of the photographs. See Tenn. R. Evid. 403.

Conflict of Interest Thompson next asserts that James Ball, one of Verico Jackson’s attorneys, had a conflict of interest that prejudiced Def

endant Thompson. Mr

. Ball had previo

usly repre sented Marcus Da

niels,

a state rebuttal witness, in a criminal trial; Mr. Daniels was convicted and received a life sentence.4 The co urt gave th e followin g curative instruction :

All right. Ladies and gent lemen, we have a sit

uationhere where you need t o understand I ’m going
to go ask y ou to use this particular evidenc e only fo r a certain thin g. This witness i s being put

on in an attempt by

the state to sho w the na ture of the V ice Lord s and Ch arles Tho mpso n’s position in it. And we voir dire

d you all abou

t gangs a nd what you thought about gangs and whether or not they

were criminal o rganizatio ns or socia l organiza tions. Thin gs like that. T his witness is o nly to be used for testimony abo ut vice lords a nd abo ut wheth er or not M r. Thom pson ha s a position in it. Appa rently Mr. Verico Jac kson is not

implicat

ed at all in this because he doe sn’t un derstand or doesn’t know anyt

hing about Mr. Veri

co Jackson. So this t estimony, first, is only to b e used as to Mr. Th omps on. Seco ndly, it may be that you will get the implicat

ion from this test

imony that if a gang commits a crime, and

Mr. Thompson was

(continu ed...)

-14- Thompson claims that Mr. Daniels may have been angry at Mr. Ball and implies that Mr. Daniels’ testimony may have been chang edas a result of tha

t anger. Defe

ndant Thompson also

claims that the state disingenuo

usly claimed

that Marcus Danie

ls would not be called and then called Mr. Daniels to testify

on rebuttal. Prior to trial, Mr . Bal l informed the court of the potential conflict, and Defendant Jackson wai ved anyobjection. While it is true that, rega

rding an ineffe

ctive assistance

of counsel claim, prejudice is presumed if an attorney actively r epresents conflicting interests, Cuyler v. Sullivan
, 446 U.S. 335, 349-50, 100 S. Ct. 1708, 1716-19, 64 L . Ed. 2d 333 (1980); State v. Thompson , 768 S.W.2d 239, 245 (Tenn. 1989), the conf li ct in this case concerned Jackson, not Thompson. Furthermore, Thompson’s allegat ions that Mr. Daniels’ testimony may have been ta inted are not supportedby the record. Any alleg ation that Mr. Daniels’ testimony

was influenced by anger at Mr. Ball is pure spe culati on and cannot form the basis for the grant of a new trial to Defendant Thompson. This issue is without m

erit. Mistrial Next, both defendants

argue that

the trial court erred by refusing to declare a mistrial after Marcus Daniels testified. Before the state called Mr. Daniels as a rebuttal witness, the court held a jury-out hearing to determine the substance of Mr. Daniels’ testimon y . During the hea

ring, it became clear that Mr. Daniels was aware of several specific crimes that Defendant Thompson had ordered. Following the hearing, the court ruled t hat the s tate could elicit testimony about Defendant Thompson’s rank within the g ang and whethe

r he gave orde

rs to commit “gan

g activit y,” but that the witness could not testify about specific crimes that Defendant Thompson had ordered or

com mit ted . Ho wev er, M r. D ani els vio lat ed t he co urt ’s o rder dur ing h is d ire ct t est imo ny: MR. KITCHEN (Assistant District Attorney): And did the defendant, Ch arles Tho mps on, give out ord ers to c omm it g ang a cti vit y?
MR. DANIELS: As far as murders, etc., y es sir.
Following that colloquy

, both defendants immediately moved for a mistrial. The trial court denied the motions but immediately gave the jury an extensive cura t ive inst ruction and polled each juror to insure that each juror understood the instruction. 44 (...continued) in charge of that gang, t hat Mr. Thompson comm itted other cr imes, other than

are on trial here. Now you shouldn’t make that inf erence. I

f you did make that i

nference,in no way could you use that to show that Mr. Thom pson pr obably committed this crime, because he had committed another crime. Does ev erybod y unde rstand that?

For instance, i

f we were trying a case of shopl ifting an d somebody p ut on proof that two months ago this same defendant committed a shopli fting somewhere el se, you coul dn’t use th at to show that he

comm itted this crim e. Otherw ise the police would go out an d if they found somebody committed a crime, l

et’s sa y a house burgla

ry, and then there we re several m ore burg laries, they co uld just arr est that p erson for al l the burgl

aries and charge him with a ll of t hem and tell t

he jurors he committed one, and he wou ld be con victed ev en thou gh there w as no pro of. Do you all unders tand that? So for that

reason, i

f there i s test

imony which would make you thi nk t here might be an inference thatMr. Thompson committed other crimes, you ha

ve to completel

y exclude tha

t from your mind. And I’m going to h ave a charge at the end of my trial t hat ‘s goi

ng to say tha

t if you f ind a defendant

has committed another crime or cri mes, you cannot use that agains t that defendant for

any

reason in this

trial to show they com mitt ed the cri me that is

on trial today. Does eve

rybody understa nd that? When we hav e trials involving ga ngs, ther e’s always

going to be some ki

nd of inference that

a gang is, as we tal

ked about on voir dire, some people thi nk that gangs are crooked or they comm it crimes or they sell drugs or whatever is going on. And it’s necessary for the state to be allow ed, if they can, as part of their theory, to prove, to try to prove to you beyond a reasonable doub t that Mr. Thompson was a high offi cial i n this gang,

to show thei

r theory. To the same exte

nt, though,

if they did prove that

to you, you can’t use that to say, well, Mr. Thompson committed other crimes as he

ad of a gang, bec ause gangs commit crimes, and so w e’re going to convict

, not because the state has pro ved he’ s guilty bey ond a re asonab le doub t. We’ve only convicted him because he p robably did it, beca use he did othe r things. Do you see how that could be unfair t o Mr. Thompson? So you need to understand that even though this witness is test ifying to gang activity and he’s testi fying or may tes

tify t hat Mr. Thompson held a high position in the gang, you can’t use any other crimes that the gang may have committed against Mr. Thompson. In other word s, that’s not an elemen t of the offense and can’t be used ag ainst him. Ca n you a ll do that? A ll right.

-15- The purpose of a mistr

ial is to correct t

he dama ge done to the judicial proc ess when some event has occurred wh

ich would preclude an impartial verdict. Arnold v. State , 563 S.W.2d 792, 794 (Tenn. Crim. App. 1977). The decision w hether to gra nt a mistri al is withi n the trial court's discretion and will not be disturbed absent an abuse of that discretion. State v. McPherson , 88 2 S.W.2d 365, 370 (Tenn. Cri m. App. 1994); State v. Millbrooks , 819 S.W.2d 441, 443 (Tenn. Cri m. App. 1991). "Gener

ally a mistria

l will be declare

d in a criminal cas

e only when the

re is a 'manife

st
nece ssi ty' requiring such by the trial judge." Millbrooks , 81 9 S .W.2d at 443 ; see also Jones , 15 S.W.3d at 893. We find that the trial court did not abuse its discretion here, especially given that the trial court took immediate steps to prevent undue prejudice to the defendant. See S tate v. Adkins
, 786 S.W.2d 642, 644 (Tenn. 1990)(holding that a mistrial was not required fo llowing a witness’s outburst where the trial c

ourt took immediate

action to dispel pr

ejudice); see also State v. Mathis
, 969 S.W.2d 418, 422 (Tenn. Crim. App. 1997)(holding that “[i]n light of the limited nature of the offending testimony and the trial court's prompt curative instruction, the trial court did not abuse its discretion in ref

using to grant a

mistrial”). This iss

ue is without merit.-16- Extrinsic Evidence of Prior Inconsistent Statements Thompson claims that

the trial court erroneously excluded extrinsic evidence of Charles Taylor’sp rior inco nsistent statements. On cross-examination, Charles Taylor was asked whether he had ever told other inmates that he must “find some way to get out of this time y ou’re facing.” Mr. Taylor denied ever making a statement to that effe ct. However, later, duri ng a jury-out hea ring, Mr. Wilkinson offer

ed to testify

as follows: Be cause he [Cha rles Taylor] would always come to cry about his time like, man, I hope they don ’ t give me this or I hope they don’t give me that or I hope they don’t give me life or whatever. If I can g et me a , you know, if I can get up out of her e, I

w ill take the first tra

in going. Thing

s like that or he wis

h they would g

ive him a fifteen-y ear sentence o

r things like that.

After the hearing, the

trial court he ld that Mr. Wilkinson could not be asked about Mr. Taylor’s statements,because they

were not inconsis

tent with Tay

lor’s answer to th

e qu estion he had been asked and there

fore were not pr

ior inconsistent sta

tements: You can ask him whethe

r or not Charles Ta

ylor made st

atements to him

about, you know, how he would like to ge t out of his charg

es, but you – w

e can’t go into th

e substance of those statements. Mr. Taylor said on cross-e xam ination, when he testified, that . . . he was asked . . . haven’t you told inmates you would do any thing to get out of these charges. I haven’t heard that from this witness. And so we c an’t ask him that.

Rule 613 of the Tennessee Rules of Evidence pr ovides, in relevant part, “[e]xtrinsic evidence of a prior inconsiste

nt statement by

a witness is not admi

ssible unless the wi

tness is a ffor ded an opportunity

to explain or deny

the same and the op

posite party

is afforded an op

portunity to interrogate

the witness there

on, or the interes

ts of justice other

wiserequire.” Tenn. R. Evid. 613(b). Furthermore, the trial court’s assessment of whether a statement is inconsistent will only be overturned

if the trial court abused its discretion. Davis v. Hall , 920 S.W.2d 213, 217 (T enn. Ct. App. 1995). The statemen

ts made by

Taylor on cross-

exa m ination and those about which Wilkinson testified above are not inc onsistent. Although a statement need not directly contradict a proposition in order to be inconsistent, the extrinsic evidence must have a tendency to discredit the testimony of the witness. See gener ally , Neil P. Co hen, et al., Tennessee Law of Evidence § 613.3 (4th ed. 2000). While Mr. Taylor denied telling other inmates that he would find a way to reduce or evade his sentence, Mr. Wilkinson’s testimony merely indicated that Mr. Taylor ha d complained about the sentence he was facing and hoped for as little time as possible. It is noteworthy that, following the court’s ruling, Thompson’s defense attorney remarked “[w]e have other witnesses. That’s fine.” However, no other witness ev ercontradicted Mr. Taylor’s testimony. We find no abuse of discretion. This issue is without m

erit.-17- Opinion and Reputation Evidence of Character Next, Thompson claims tha t the trial court e

rred by excl

uding evidence

that s tate wi tness Charles Taylor had a reputation for being untruthful. Out of the presence of the jury, witness Mark Wilkinson offered to testify that state witness Charles Tay lor hada reputation within prisonpod 4-f for untruthfulness. The court held that Mr. Wilkinson and subsequent witnesses from prison pod 4-f could testify as to their opinions of Charles Taylor’s cha racter for truthfulness,

but that they

could nottestify as to Charles Taylor’s reputation for truthfulness because the prison pod was “not a representation of our community.” We disagree with the trial court that a prison pod may not be considered a “community” for purp os es of reputation evidence. Rule 608(a) provides, in pertinent part, “[t]he credibility of a witness may be atta

cked or supporte

d by evidenc

e inthe form

of opinion or reputation, but subject to these limitations: (1) the evidence may refer only

to character f

or truthfulness or

untruthfulness

. . . .” Tenn. R . Evid. 608 (a). “Altho ugh the rule does not specifically speak to the issue, testimonial character evidence pertaining to another witness's character for truthfulness is admissible only if a proper foundation is established .” State v. Dutton , 896 S.W.2d 114, 118 (Tenn. 1995)(citations omitted). “[I]t is necessa

ry to qualify the reputation witness ‘through a showing of such acquaintance withthe [person under attack], the community in which he has lived and the circles in which he has moved, as to speak with authority of the terms in

which generally he is regarde d.’” Id . (quoting United States v. Watson , 669 F.2d 1374, 1381 (11th Cir. 1982)). In other word s the offering p

arty need only show that the witness has the necessary knowledge of the

person’s reputation, based on sufficient experience with the person in that person’s community. A community is defined as “a body of people living in the same place under the same laws.” The Merriam Webster Dictionary, 1994. That community nee d not, as the trial court suggested, be representativeof society as a whole or even of the community in which the person normally lived. Of course, membership in a common communi ty alone mig ht not satisfy

the foundation re

quirement. As noted above , the wit ness must also demonstrate that he was acquainted with the person’s reputation within the community. Accordin gl y, we find that the trial court’s limitation on the witnesse’s testimony was

erroneous. However, the er ror was harmless , because the court did allow other witnesses who had been in pod 4-f to testify

as to their opinions of Charles Taylor’s character for truthfulness, and

those opinions were unfavorable. Thus, Thompson suffered no prejudice because Charles Taylor’ s reputation for truthfulness within the community of prison pod 4-f was apparent to t

he jury desp

ite the court’s ruling as to Wilkinson. This issue is without m

erit.

Jury Instructions Next, Thompson claims tha t the trial court e

rred by de

nying his re

quest for a sp

ecial jur y instruction. Thompson requested that the court instruct the jury that “the facts must exclude every other reasonable theory hypothesis bey on d a re asonable doubt except the guilt of the defendant.” Instead, the

trial court char

ged the jury

as follows: You must find all the essential facts are consistent with the hypothesis of guilt, as that is to be compared with all the facts proved. The facts must exclude e very othe r-18-

reasonable

theory or hypo thesis except that of guilt. And the fa

cts must establish such a certainty

of guilt of the de

fendants or eithe

r of them, as to convince the mind beyond a reas onable doubt that the defendant or either of them are the ones who committed the offense.

These instructions were

taken from the Te

nnessee Criminal Pa

ttern Jury I

nstructions,42.03, andare accurate statements of the law regarding circumstantial evidence. Marable v. State , 203 Tenn. 440, 313 S.W.2d 451, 456-57 (1958). Where the trial court's instructions on a matter are proper, its denial of a special request is not error. State v. Vann , 976 S.W.2d 93, 114 (Tenn. 1998). This issue is without m

erit.
Sentencing Fin all y, Thompson claims that he was prejudiced at sentencing because the t rial court allowedthe state to introduce “more proof t han w as necessary to prove his prior convictions for violence.” At sentencing, Thompson moved the trial court to limit the state’s proof to a listing of the elements of the prior

crimes and objected to the introduction of the indictments for Thompson’s prior crimes because other names were listed on the indictments. Alternatively, Thompson offered to stipulate that the prior crimes were violent. The trial court ruled that the state could introduce the indictments

(redacted to

eliminate others’ names) to prove that the prior crimes for which Thompson hadbeen convicted h

ad elements

of violence to the

person, but order

ed the state not to in

quire into the specific facts of the crimes. Thompson now claims that the indictments had little probative value and were high ly prejudicial at sentenci ng. Tenn. Code Ann. § 39

-13-204(i) provi

des No death penalty or sentence of imprisonment for

life without possibil

ity of parol

e shallbe imposed but upon a unanimous finding that the state has proven beyond a reasonable

doubt the existenc e of one (1) or more of the statutory agg ravating circumstan ces, which a re limited to the foll owing:

. . . . (2) th e 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.

Thus, the state was required to prove that the defendant had committed one or more prior violent felonies. Because the ind

ictments in this cas

e did little more tha

n recite the statutory

elements along withthe defendant ’s and the victim’s na mes, we find that T

hompson was not pre

judiced by th

eir introduction. This i

ssue is without merit

. Accordingly, the judgment of the trial court is AFFI RMED.

___________________________________ JERRY L. SMITH, JUDGE