### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE April 29, 2003 Session
STATE OF TENNESSEE v. ALEJANDRO RIVERA
Direct Appeal from the Circuit Court for Cocke County No. 7144 Ben W. Hooper, II, Judge

No. E2002-00491-CCA-R3-CD December 1, 2003

The Cocke County Grand Jury indicted the Defenda nt for first degree premeditated murder pursuant to Tennessee Code Annotated section 39-13-202 (1997). Af ter a trial, the jury

convicted the Defendant

of the ind

icted ch arge a

nd then se

ntenced him to life

in prison w ith the pos sibilit y o f parole. The Defendant

appeals contending that: (1) the prosecutor ma de improper statements to the ju ry; (2) the tr

ial cour t improper

ly admitted into evidence two pieces of evidence and statements of his co-def endants; (3) the tr

ial cour t erred when it re

fused to grant his request for a continuance ; (4) the trial cou

rt erre d when it

refused to grant

him a judgment of acquittal; (5) the trial court erred when it instructed the jury; (6) the voir dire was improper; (7) the trial court erred when it refused the Defend ant’s request

to cha nge venue ; (8) t he tri al cou rt erre d when it ref used t o admi t draw ings made by a

key prosecu tion child- witness; ( 9) the tri al court erred w hen it allo wed two w itnesses t o remain in the cou

rtroom fo r the dur ati o n of the tr

ial; (10) the trial

court er red whe n it refus ed to consider evidence regarding

statements allegedly

made by the

jury forema

n; (11) the trial court erred when it refused to allow a New York s earch w arrant and aff idavit to be admitted into evidence; (12) the trial court

erred w hen it allowed a photograph of the dece ased to be admitted into evidence; and (13) the t rial court er

red whe n it did not r

eview the “TBI file.” F inding no error in the judg ments of the trial court, we affirm the Defenda nt’s conviction.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which D AVID H. W ELLES and J ERRY L. S MITH , JJ., joined.

Carl R. Ogle, Jr., Jefferson City, Tenn essee, and Ti m S. Moore, Newport, Tennessee, for the appellant, Alejandro Rivera.

Paul G. Summers, Attorney Gen era l and Repo

rter; Mic hael Moor

e, Solicito

r Gener al; Ang ele M. Gr eg or y, Assistant Attorney Gene ral; Alfred C. Schmutzer, Jr., District Attorney Gene ral; and Ronald C. Newcomb, Assistant District Attorney Ge neral, for the appellee, State of Tennessee.1 The sist ers were found guilt y of fi rst degree mur der and were sentenced to lif e imprisonment with t he possibi lit

y of par ole. That

conviction was affi rmed by this court i n State v. Graham , No . E 199 9- 022 48- CCA- R3- CD, 2001 WL 301160, at * 16 (Tenn. Crim. App., at Knox vil le, Mar. 29, 2001), and t he si ste rs’ appli cati ons f or permi ssi on to appe al t o the Tenness ee Supr eme Court were denie d on Sept ember 17, 2001.

-2- OPINION

This case arises from the

killing of Jonathan Aaron Smith (“Aaron Smith” or the “victim”)
on July 23, 1997 . The State a sserted that the victim’s wife, Denice Smith, and her twin sister, DeborahGraham, hired the Defend ant to kill

the victim, which he did with the assistance of Deborah Graham. 1 At the time

of the mur

der, the victim and

Denice Smithwere recently

divorced, and a few da ys before the murder, on July 17, 1997, the court entered an order

granting the victim custody of the couple’s two minor children, Brittany and Joshua. Based u

pon this theory

and suppo

rting f acts, the Cocke County Grand Jury indicted t he Defendant for premeditated first deg ree murder. Following a jury

trial in the Cocke Co unty Circuit Cou

rt, a jury convicte d the Def

endant of first degree murder, and the tria l court sentenced him to life in prison with the possibility of parole.

Becau se one issue

that the D efenda

nt appea ls is whether

sufficient evidence exists to convict him of premeditated

first degree murder, we must summarize the evidenc e presented at trial. At t rial, th e State offered testimony from Sharon Jarvis, Sharon Michael Strange, and Christine Latham Lov ed ay, who all

testified that

Denice Smith sought to kill her husband. Jarvis testified that she was
a day-ca re worker who watched Denice Smith’s children between June and Aug ust of 1996. Jarvi s testified that, during that time, Denice Smith confided in Jarvis that she and the victim were getting
a divorce and that

she did not want him picking up the children. Jarvis stated that Denice Smith told her that she was concerned that the victim would get custody of the children and on three occasions told her that, if th e victim di d get cu stody , she woul d kill him. O n cross- examinatio n, Jarvis testified that Denice Smith told her that there had been some physica

l confrontations between the victim and herself and that the son, Joshua, had Down Syndrome. Jarvis also stated that Denice Smith told her that on one occasion she had her daughte r Brittany a ssist her in “break[ing] into the house where [the victim] wasstay

ing” to r etrieve items.

Sharon Michael Strange testified that she was the m anager of a tanning salon that Denice Smithfreque

nted fro m May

of 1997 to Jul

y of 1997. Stra

nge tes t ifi ed that Denice Smith told her that she ha d marital

problems and was g oing thr ough a d ivorce f rom her h usband, A aron Smit

h

. Stran ge stated tha

t Denice Smith told he

r that the couple w as b attling for c ustody of the children. Stran ge testified that, on one occasion, Denice Smith asked her if “I knew anybody

[who] could do
a job for her? And I asked her what kind of job that she wanted done, and she said that s he would like to have [her] husband taken care of . . . .” Strange test ified tha t, after Denice Smith told

her that she wanted her husband

killed, Strange told her that sheneeded “to be careful who she wa s talking to, and that she could get

in a lo t of tr oubl e.” St range testified that Denice Smith did not mention the marriage aga

in for the nex t coup le of weeks but brought pictures to show Strange that the children had bee

n abused by t he victim. Strange stated that, at some point, Denice Smith called her and told her th at the court awar ded the vi ctim

custody of the childre

n and that she was goingto take-3-

the “kids [to F

lorid a] and run with them, and that if she had to kill him in the process, that she would.” On cross -examinat ion, Stran ge test

ifie d that Denice

Smith told he

r that the victim phy sically

abused her and her children. She also te stified th at Denic e Smith told h er that th e victim stuck a penci l lead in J oshua ’s leg.

Christine Love day

testifie d that she

worked with Denic e Smith at a dentists’ officeand that Denice Smith discussed her marital problems with her. Loveday testified that Denice Smith told her
more than once that if her husband ever g ot custody of the childre

n, she would kill him or

have him killed. Love day

stated tha t Denice Smith told he

r that she would leave the country with the childre n before she would allow her husband to have custody of the ch il dr en . Lo ve da y te st if ie d t ha t, fi ve da ys before she heard that the victim was killed, she saw Denice Smith at the dentists’ office and noticed that her truck was loaded down and that Denice Smith’s fa

ther waswith her. Love day testifie d that, when she asked Denice Smith where she was going, Denice Smith said that “she couldn’t tell us, and that we didn’t want to know.”

Charles Jackson Snyder

testifie d that he w as an emp loy ee of the Gatlinbur

g Post Office and that he was e mploy ed there

on July 15, 1997. Sn

yde r repor ted that, while working at the post office
on July 15, 1997, he received a phone call from “Carl Sanders who said he was fr om Bismarck, North Dakota.” Snyde

r stated that

Sand ers informed him that an express mail package addr essed to Aaron Smith was going to arrive and that the package contained drugs. Sny der testified that he gavethis information to his supervisor, who contact ed the Post

al In spector

from Knoxvi lle, Russell F. Fallis. Snyder

stated that, subsequently, the pac kage arrived and was g

iven to Fallis.

Fallis testifie d that, after learningthat the p ackag e might c ontain dr ugs, he decided to pose as a postal carrier and deliver the pac kage to the v ictim with t h e assistance of Randy

Parton and Rickie McMahan from t he Fourth J udicial Di strict Task Force. Fa l lis t estif ied th at the package indicatedthat it was from Atlanta, and, after he delivered it to the victim, the victim opened it on the street, which wa s relativ ely crowde d. Fallis stated that, after the Task Force of ficers showed the victim their cr edentia ls, the vic tim stated

that he ha

d been “ set up .” Fallis testified that after the officers approached the victim and explained that they suspected that

the package conta ined d rugs the victim consented to allow the officers to open the package in front of him . The p ackage containedtwo bags of wh at ap pear ed to be dr ugs a nd an envelope that r ead, “To A aron

Smith. Next time the price goes up.”

Fallis testified that

they did not

arrest the victim because it did not appear that he was a ware that this package containe d drugs . Fallis s tated tha t he later learne d that the

packag e originated in Miami, Florida, and not

in Atlanta, as the return address indicated. Fallis testified that he reque sted
an inquiry

by t he postal inspecto r in Miami. Fallis a

lso te stified that he sent the contents of the package to the cr

ime lab to d

etermin e if an y latent fing erprints were present on the items, and the lab determined that the fingerprints of Debora h Graham were on the items. On cross-examination, Fallis testifie d that the

victim told

him t hat De borah Graham was hea vily inv olved in dru gs and that he suspected that she sent him the package.-4-

Carl Smith, a forensic scientist for the Tennessee Bureau of I nvestigation (“TBI” ), testified that the substance contained in the two bags in the packag e weighed 0.14 grams and was tested and confirmed to be cocaine.

The State filed the Memor andum Opi nion ente

red by the Circu it Court for Cocke County

in the case of Jonathan Aaron Smith versus Denice Smith filed on July 17, 1997, which granted custody of the couple’s children to the victim

. Harry T. Smith, the victim’s father, t estified that he liv ed on a c ampgro und calle d Camp Acres, which he owned at the time of the victim’s murder. Harry Smith testified that Camp Acres
was only acce ssible by an

electric gate that required a card for entry. T

he only people who ha

d cards
were “lot owners” who either owned or rented a lot. Harry Smith testified that Denice Smith had
one of those ca rds. He s tated tha

t the victim lived in a

house on Ca

mp Acresfor some

time with hi s wife, Denice Smith, and their two children. Harry Smith testified that Denice Smith and the victim
were married for twelve y

ears before they beg an to have marital problems that led to the couple filing for divorce. Harry

testified that, whe

n the coup le separ

ated, the victim moved into Harry Smith’s house and that the children remained with Denice Smith in the couple’s house. Harry Smith testified about the day of the murder , July 23, 1997. Harry Smith testified that
on that day he wa s fixing the road down by the g ate to Camp Acres. He stated that at 3:30 p.m. he went back to th

e house to shower a nd chang e clothe s, and at a bout 4:20 p. m. he left h

is house to get something to eat. Ha

rry Smi th testified that the victim was n ot home at

this time. H arry

Smith testified that he came back to the house around 6:00 p.m., and, at that time, he saw his son lay ing on his side in front of the house. He explained thathis son app eared t o have been shot. H arry

Smith testified that he went

in the house, which looked as if it had been ransacked, a nd called 9-1-1. Harry Smithnoticed that the return air vent was open and “lay ing down, ” and he thought that it was unusual because he used to keep money behind the

return a ir vent, a fact of which De nice Smith

was aware. Harry

Smith testified that there was a pair of handcuffs on a chair in the house, and a gun, that belonged to him, lay

ing under thetable. Harry Smith testified that he noticed that a box containing some old coins, pocket watches, a “railroad watch” and a “24 ka rat gold nugget

watch”
was missing from a cabinet in the garag e. He stated that a gun and gun case were also missing fr om the cabinet. He also said that the only room in the hou se that wa s not “ransacked” was the room upstairs where his son was living, but that the rifles that he stored in that room were on the floor. Harry Smith testified that the last time that he saw Denice Smith was theday afte r the divorce
was final an d custody

was gr anted to the victim. Denice Smith and her father loaded up a truck, put Brittany and Joshua in the car and left. Harry Smith testified that he thought that she and her father were le aving, but his wif

e sugg ested tha

t they were on ly g oing to a

n appointm

ent.
Robert Caldwell, Chief

Detective with the Cocke County Sheriff’s Department, testified that he investigated the victim’s murder on July 23, 1997. He testified that, when he a rrived at the scene, he found the victim’s body on the sidewa lk leading to the residence. Detective Caldwe ll testified that he r equ est ed a ss is tan ce f rom th e TB I. On c ross-examination, the Detective testified that he-5-

made an affida

vit to the cou

rt stating that his fi le indica

ted that th ere we re pictu res of f our suspe cts faxed to him, inclu ding a picture of the Defendant, and that Brittany , the victim’s daughter, did not iden tify any of the sus pects. H owever , the Detective sta ted that, after he reviewed his f ile i n preparationfor the trial, he found that Brittan y di d identify

the pictu re of one of the sus pects, Harry Hodges, as somebody

named George that she saw in a motel in Flor ida.

Dr. Cleland B lake, the

Assistant StateChief Medical Examiner with the TBI, testified tha t he performed the autopsy on the victim. Dr. Blake testified that there were three gunshot wounds to the victim: one bullet went through his right ear and was f rom a gun fired from

in front of the victim; another bullet entered the back of his head a nd exited the front of his forehead and was fired from a gun behind the victim; and another bullet entere d his back and exited his right chest area and
was fired from a gun behind the victim. The doctor testified that the bullet that entered the victim’s head was “an instantly

lethal wound.” Kelly Smith, who was with TBI at the time of the murder investigation, testified that she was the team lea

der of the team re sponsible for the f orensic investi gation of the murder. She testified that when she arrived at the scene of the murder at around 11:00 p.m., thevictim’s body had alrea dy be e n removed. Agent Smith stated that, during the course of her investigation, she found a spent bulletand several reddish-brown stains both inside and outside of the house. She also testified that she found handcuffs inside the house and that inside the house there were “clothes and other material that had been strewn throughout the house, and it was not orderly at a ll.” Agent Smith stated that she noticed that a vent had been pulled away from the wall and found

a gun ly ing on the floor. Agent Smithtestifie d that she

also found severa l pieces of jewelry , including a watch, an earring and an earring back. The parties stipulated that no blood was found on either the earring or the earr

ing back. Agent Smith testified that she went upstairs and found “a number of we apons on the floor.” The par ties stipul ated tha

t Mark Squi

bb, with th e T en ne ss ee Cr im e La bo ra to ry, found that the reddish-brown stains found at the crime scene were human blood. The parties also stipulated that Bo yd Gene Phill ips, a Latent Fingerp rint Exam iner with t he TBIForensic Service Division, found
no readable fing erprints o n the gun or at the crime sc ene othe

r than the finger prints of t he victim. Ad di ti on al ly, the part

ies stipula

ted that Ro

bert Roy ce, a fi rearms e xaminer with TBI, analyzed the spent bullet found at the crime scene and found that it came from the g un belonging to Harry

Smith that was found at the crime scene. Brittany Smith testified at trial that her parents were the victim and Denice Smith and that she had one brother, Joshua Smith. Brittany Smith testified that, at the time of trial, she wa s fourteen and her brot

her was twelve. A

t the time of her father’s murder, Brittany Smith was ten and her brother was eig ht. Britt any Smithtestified that, before the murder, her parent s were go ing th rough
a divorce and that, at that time, she and her brother lived with her mother at Camp A cres. She explained that h er fa ther, the victim, liv ed up the h

ill from he

r mother’ s house with his par ents. Brittany Sm it h s ta te d t ha t w he n h er mo th er fo un d o ut th at “[ he r] da d h ad cu st od y, we left t own” with J oshua and her mother’s father, Don Graha m. Brittany Smith testified that they left town in tw o vehicle s, her mother’s Mitsubishi Montero and her grandfather’s Chevrolet truc k. Brittan

y Smith-6-

stated that, bef

ore they left town , they

went toher mother’s workplace to get her mother’s payc

heck, and then “we went to the bank, and I gue ss she got her check cashed, and then we went to Ne wport to her attorney ’s office, and then we le ft town.” Brittany Smith testified that, upon leaving town, they went to Miami, Florida, dr iving “straight through.” Brittany Smith testified that once in Miami they met her “Aunt Debbie,” who was Debora h Graham, and “s ome ot her peo ple” at “a lit tle l ike ba r stan d behi nd th e Gold en Nugg et. ” Brittany Smithte s tified tha

t “[Debor ah Grah am], my

grand father , Don [Gra

ham], my mom, two pe ople namedGeorge, and Alex” were pre sent at the meeting. She described “Alex” a s “tall . . . real slender. He shaved his head, he had small glasses, dark skin, a beard and a mustache , tattoos.” She described the tattoos as “a ea g le and a dragon.” Brittany Smith then identified “Alex” as the Defend ant. Brittany Smith testified that Debora h Grah am took her an d her brother to the beach while the others stayed be

hind and talked. She stated that, lat er, they wen t to their motel, “The Driftwood,” and “unpacked, and stay ed there.” Brittany Smith testified that she, Don Gra ham, her mother a nd little br

other, st ay ed in room

number 32 1 at the mo tel. Brittany Smith testified

that, the day

after they

arrived, her mother rented a white ca r from
a dealership and

Deborah Graham, the Defenda nt and “both of the Georges” left in the c ar. Brittany Smith testified that two or three day s later, late at night, Deborah Graha m, the Defendant and “one of the Georges” came ba

ck to the motel. She testified that she was supposed to be asleep on the floor, but she was not and overheard the conversation in the motel room. She stated that she heard DeborahGraham tell her mother and Don Gr aham “th at th ey hurt someone ba d, and I heard [the Defendant] say, ‘ no, we’ve killed someone,’ and my mom said, ‘yeah, a

nd it was easy, too.’” Brittany Smithtestified that, right before the Defenda nt left on the trip, he had handcuffs in his back poc

ket, which she could identif y because sh

e could see the “bott om part of the chain hanging out over the pocket.” Brittany Smith stated that, when the Defendant retur ned th at even ing, the Defend ant did not

have the handcuf fs with him. Brittan

y Smith s tated that, when Deborah Graham returned, she w as wea ring “my mamaw’s [Cleta Smith’s] pink ice ring” and that the Defendant

had “my papa

w’s [Harry Smith’s] gold nug get watch, and my dad’s Swi ss Army knife.” Brittany Smith testified that, one or two day s after she overheard the conversation, she left withher mothe

r, Don Gr aham and her brot her, Joshua , to go to Michiga n to her “ Aunt Mari on’s” house. She explained that “Aunt Marion” was the wife of Don Graha m’s bro th er. Br

ittany Smith stated that once they

arrived at “Aunt Marion’s” house, she lear ned that her father had been killed at Harry Smith’s home. Brittany Smith testified that they stayed in Michig an until “Aunt Marion” brought her and her brother back to Tennessee. Brittan y Smi th testi fied tha t she was o nly

in Michigan for “one and a half to two da ys” befor e her aunt brought her back to Te nnessee.
On cross-examination, Brittany Smith testified that the lights were off when she hear d the conversation about the “killing.” B rittany Smith stated tha

t, when they

left the Driftwood

motel, they stored so me boxes at a “storage place” to keep the m from being in the back of Don Graham’s truck.-7-

The parties s t ipulated that Alamo Car Rental records showed that Denice Smith leased a white Buick Regal with Florida license tag number UVN79B on July 21, 1997. The car was returned on July 28, 1997, a

nd it had a

ccumula ted 2,476 miles.

Vernon Browntestified that he and his wife owned a lot in Camp Acres and that they were living in a motor ho me on that lot d uring th e summer o f 1997. He

testifie d that, on July 23, 1997, he saw two people sitting near a car , one of the m a woman with blonde

hair. B rown test

ified tha t, a short time later, he saw a man knocking on Harry Smith’s house, where the victim lived. Brown testified that, while he did not get a good look at the man, he looked like he had a slender build and black hair. Brown also testified that there wa s a white

car parked nearby

that caught his attention because he did not think it wa s supposed to be t here. After returning to his motor home a fe w minutes before 5:00 p.m., Brown heard th ree gu nshots, but

did not thin

k it was tha

t unusual b ecause there are many

hunters in the are a. Brown testified that shortly after 5:00 p.m. he heard a car “leaving in a hurry, like a speeding car.” Brown then recognized a picture of tire marks w here
someone ap pa re nt ly l ef

t i n a “h ur ry. ” On cros s examin ation, Brown testified that he tol d the TBI agents that the man he

sa w k no ck in g o n t he do or wa s “ sk in ny, white male with long hair, wearing a ball cap.”

Ed Pulley, a

state trooper with the Tennessee Highwa y Patrol, testified that he was working
on July 2 3, 1997, a

nd he issued a citati on to “Da vid Antonio

Rivera” for speeding. Trooper Pulley testified that he “clocked” the white four door 1996 B uick traveling south on 1-75 near mile marker 46 at eighty

miles per hour. He explained that the car had Florida license tag number UVN79B, and riding in the car were a male driver, who produced his drivers’ license , and a woman in the front seat. Trooper

Pulley testifie d that, af

ter stopp ing the c ar, he w ould have checke d the driv ers’ lic ense of the person driving the vehicle to ensure that the picture matchedthe driver presenting the license, butcould not identify the Def endant in court . The trooper testified that the address listed on the license was “256 0 Northwe st

67 th Street, Miami, Florida, 33147,” and the drivers’ license number was “R160161591390.”

Ronald Racci op pi, who wa s an offi cer with the Flor ida Depa rtment of Law Enforce ment, testified that he tr

aced the license tag numb er give

n to him by

police of ficials in Cocke Coun ty, which they believed w as related to a s us pect named “Alex,” and it came back to a renta l car registered to LaShawn Tay

lor. Officer Raccioppitestified that he obtained Tay lor’s address, 6750 Northwe st

67th Stree

t, from the

rental c ar age

ncy , and he b egan s urveilla nce of th at locati o n. H e stated that, when the officers stopped Tay lor’s vehicle, it was occupied by Taylor, w ho was drivi ng, and by a man who produced identification that stated that his name was “David Rivera.” Officer Raccioppi later ide

ntified “ David Rive

ra” as t he Defe ndant. Th

e offic er aske d the Def

endant if his
name was “Alex” and he said “no.” The officer then identified a copy

of the dri ver s’ licens e showing the name “David Antonio Rivera” and the a ddress as 6750 Northwest 67th Street.

Officer Raccioppi testified that the Defendant then voluntarily went

with them to the police station to discuss a “homicide in Tennessee.” The officer testified that he read the Defenda n t his rights, and that t

he Defe ndant wa ived those

rights . O fficer Raccioppi testified that, at the police-8-

station, he noticed visible tattoos on the Defendant, one of which was “an eagle on the rising sun”
on the upper left shoulder and the other was a “ta ttoo of a tiger”on the bac

kside of t he same a rm. Officer Racciop pi testified th at the Defendant refused to show the rest of his tattoos. The offic er testified that during the interview the Def endant st ated tha t he met De

borah Gr aham in New York ab out f ive years ag o, but had

not spoken

with her f

or three ye ars until s he conta

cted him “ about a month and a half ago” after

speaking with a mutual friend “Alex Rios.” Officer Raccioppi testified that the Defendant stated that

he did not

have a cell phone number for Debora h Graham, but that she would call his beeper. The officer testified that theDefendant stated that Deborah Graha m stayed at “the Golden Strand

and the F ountain H ead motels” while in Florida. Officer Raccioppi testified that the Defendant told him tha t Debora h Graham never stay ed at the Driftwood motel, but that George Penta, with whom Deborah Graham was intimate, stay ed at that motel. The officer reported that the Defendant stated that he “wasn’t allowed [at the Dr iftwood motel].”

Officer Raccioppi testified that

the Defendant told him that he went to Tennessee about three weeks ago with another man when he was drivi ng to Michigan. The officer testified that the Defendant told him that he was traveling in a white rental car and that he did not want to say who rentedit. Officer Raccioppi stated that the Defendant told him that the vehi cle was rented from “Value Rental” in “Fort Laude rdale.” The officer testified that the Defendant denied ever meeting anyone in Deborah Graham’s family , including her father, sister, or niece a nd nephew. The officer testified that w

hen h e ask

ed th e Def

enda nt, “ who isAlex?” he re spond ed, “ Alex R

ios , a friend of
ours f rom N ew York.” Officer Raccioppi stated tha t, later in the interview, the Defendant said, “Look, I told you my

name is Al – David.”

Officer Raccioppi testified that

after he told

the Defendant the evidence they had in the case, including the fac t that they had the w

hit e car, t he Defendant “changed his story.” The off icer testified that the Defendant stated, “I plea d the Fifth to driving a white car” and admitted that he drove with DeborahGraham to Michigan and that he was not with another male. Officer Raccioppi stated that the Defendant stated that Deborah Gra ham had a job interv

iew in Michigan, but he cou ld notremember the name of the city wher e the two went. The officer testified that the Defenda nt stated that “we stayed with afriend named Gilda Hart, a black woman . . . who lives in a red brick house.” Office

r Raccio ppi state d that he then questioned why, if the Defendant and Deborah Gra ham went to Michigan, were there only 2400 or 2800 miles on the car, a nd the Defendant responded, “that’s a lot of miles. Go ahead a nd check; y ou’llsee it’s enough to get there a nd back, and more.”

The officer testified that, at the end of his conversation with the Defendant, the Defenda nt said that he would con

tact Deborah Graham and ge t her to talk to the police, and, thereafter, the officer drove him to Taylor’s plac e of work. Officer Raccioppi testified that later that same day the Defendant

paged him, and when

the offic er called him

back the Defendant told him the location of Debora h Graham ’s interview in Detroit, Michigan, and gave the officer the street on which Gilda Hart lived. The officer testified that he was una ble to contact the Defendant aga in.-9-

Officer Raccioppi also testified that the post officefrom w here th e packa ge cont ainin g drugs
was sent to the victim was located300 yards fr om the Defendant’s home. The officer a lso testified that the numbe

r on the dr

ivers’ li cense pr

oduced b y th

e Defe ndant mat

ched the drivers ’ license number that was listed on the citation issued by the Tennessee State Highway Patrol.

On c ross-examination, Of

ficer Raccioppi testified that he knew that the witnesses at the sce ne reported that there was a white male knocking on the door of the victim’s home before they heard
a gunshot. The officer testified that the investiga tion revea led that the Defendant’s brother was “David Rivera.” Officer Racci oppi stated that during the course of the investigation it was discovered

that there was a storage unit in the name of “David Rivera,” to w hich a person n amed “Debbie Giovi” had access. The officer state d that, in the storage unit, the officers found “boxes of toys, furniture, [and] photos.”

The State then entered a copy of the record o f the Driftwood Resort Motel from July 18, 1997, to July 23, 1997, for room number 321 showing that it was re nted to Don Jones.

Harold David Hut

chinson, a

criminal i nv estigator with the District Attorney ’s Office, testified that he was involved in the investigationof the victim’s murder. He testified that he was unable to confirm that Deborah Graham had an interview at Fox Studios in Detroit. Hutchinson stated that he attemptedto find Gil da Hart, who alleg edly lived on We st Grant A

venue in D etroit, buthe was unable to find he r. Hutchi nson testif ied that th

e mileag e for a r

ound trip f

rom Miami, Florida to Detroit, Michigan and back was 2,788 miles. He stated tha t the milag e from a

round tri p fr om Mi am i, Fl or id a t o t he Co sb y, Tennessee was 1,882 miles, and the mileage f rom Camp Acres to mile marker number

46 was 112

miles. On cross-examination, the investigator testified that he cleared Harry David Hodge as a suspect beca use the investigator was unable to p lace him in Tennessee at the time of the murder. LaShawn Tay

lor, the mother of

the Defendant’s son and

long-time girlfriend, testified that she was in

troduce d to Debor

ah Grah am by

the Defe ndant. Taylor testified that the D efendant and Debora h Graha m left town

togethe r, and it was her understanding that they drove to Michigan

for
a job interview. Taylor sta ted that, after they

left, she received a phone call from the Def endant, and he said they wer

e in Te nnessee helping Deborah Graham’s sister move out of her house. Ta ylor testified that the two were gone for three day s or more after which the Defendant came back to her home. Taylor testified

that, later, Deborah Graham came to the home driving a white car, a nd the Defendant

told her to “get the car out of her

e” or “g et in the c ar and g et out of here,” a nd she lef t. Taylor testified that she saw Deborah Graham ag ain when she came to Tay lor’s house to spend the night “because she didn’t

have an ywhere el se to sleep.” Taylor stated she remembered that one night the Defendant

and Deborah Graham were talking and that, every

time Taylor enter

ed the room, the talking would stop . Tay lor testif ied that o ne da y she took Deborah Graham to the airport, and Deborah Graham said she was g oing to New York. Taylor also testified that, on the day that she a nd the Defendant were

stopped by the police, the Defendant produced false identification in the name of “David Rivera.” Tay

lor state d that, after-10-

the Defendant was with the police, he came to he r work and got her

car and then, at the end of her work day, the De

fendant picked her up and took her to her mother’s house. Taylor testified that the Defendant

left her at her mother’s house and said he would be “rig ht back,” but he never returned. The next time she saw the Defendant was the day of trial, but she ha

d spoken w ith him and t

old him the police were look

i ng for him. Tay

lor testified that she and the Defendant went to a pawn shop “on 79th Street.” She said that, at the pawn shop, the Defendant retrieved some items of jewelry that were pawned. One piece that he retrieved was a “Noah’s Ark br acelet.”

On cross-examination, Taylor t estified that she was jealous of Deborah Graham’s relation ship withthe Defendant and that she suspected that they were having an affair. She also testified that the Defendant

never told her that he was involved in any murder and that h

e was wor ried tha t becaus e of hi s r ac e t he po li ce in Te nn es se e w ou ld no t b el ie ve hi s s to ry.
Robert Cec il La tta, Sr., who was employed by the Cash In Pawn Shop in July of 1997, t estified tha t his reco

rds showe d that on July

24, 1997, “David Ant

onio River

a” pawned an Elg

in non-go ld pocket

watch, a 10 karat Noah’s A

rk brac elet, two women’s free form rings, and a Nikon camera, Model Z

T400. Latta test

ified tha t his reco rds indic ated tha t on Augu st 7, 1997, “David Rivera” retriev ed the ite

ms that he p awned. L

atta pro duced fr

om his rec ords a photocopy of the sta te issued I.D. of “David Rivera .”

Martin Kevin Giovi testified that he used to be Deborah Graham’s boy friend in 1994 and that, during t

heir relationship, Deborah Graham mentioned that her sister, De nice Smith, was having marital pr o blems because her sister’s husband was abusing the kids. Giovi testified that Deborah Graham reques ted th at he “go down there and kill him” on three or four occasions. Giovi testified that he went to jail and, upon his release in 1997, he and Deborah G raham began living toge

ther again in New Y or k. Giovi stated that Deborah Graham told him that she was involved in the victim’s murder. Giovi testified that , when t he police came to arrest Deborah G raham, he gave Detective Paul Dotzler a bag of jewelry that Deborah Graham had given to him. O n cr ossexaminatio n, Giovi a

dmitted tha

t he had multiple cr

iminal con

victions.

Paul Dotzler, a detective with the Port Authority Police De partment in New York/New Je rs ey, testified th at he assisted Miami officers in locating and arr esting Deborah Graham. He testified that Deborah Graham left a piece of luggag e at the airport and that, from the lugg age, they learned of her current New York address. The detective testified that when De borah Graham

was arrested at her Ne

w York ad

dress Gio vi gave

the dete ctive a b ag of je

welry that h e said Deborah Graham had hidden in his house.

Cleta Mae Smith, the victim’s mother, testified that, when she returned to the house after her
son was murdered, she found that every drawer was taken ou t a nd “e ve ryt hing was [thrown] everyw here.” The State then showed her t he bag of jewelry that Giovi gave to Detective Dotzler, and Cleta Mae

Smith identi fied it

as all he rs and tha t, much of it, she made

herself . Furthe r, Cleta Mae S mith testified that, after the murder, she noticed that she was missing her “Noah’ s Ark ” bracelet, a Nikon camera, and a “big pink ice ring.”-11-

Gilbert Ramirez, a detective with the New York City Police Dep artment, t estified that he arrested the Defendant in connection with this murder. Detecti ve Ramire z testified that, when the Defendant

was arrested, he said his name was “Jonathan Rivers” and showed a drivers’ lice nse from the Virgin Islands that confir med this name. The detectiv e sta ted that, while in custody, the Defendant

said, “F---ing B--- es set me up” and “Some one’s g oing to die over this s---.” Detective Ramirez testified that the Defendant also said, “I narrow it down to five. I got five now on my

list. I’ll make it look like a robbery .” The detective testified that the Defendant also said, “I got the piec e of the puzzle. I bet they

didn’t say their dad wa s involved.” The detective explained that, when he arrested the Defendant, he noticed some tattoos on him and found a handcuff key on his person. Detective Ramirez te stified th at the ha ndcuff k ey didnot fit the handcuffs found at the scene of the murder.

Detective Ramirez testified that it was “a couple of day s” befor

e the Defendant

allowed h

is finger prints to be taken. Ramirez then identified picture s of the De

fendant ’s tattoos

. The first was
on the Defe

ndant’s c hest and w as a

dragon. The

next was on the back side of his left arm and was a big eagle.

In his defense, the Defendant called Eric Rodrigue z, who testified thathe worked at Dezer Properti es, which owned

the Driftwood Hotel. Rodriguez testified that the records indicated that Don Jones checkedin to the Driftwood on July 18, 1997, and that he checked out on July 23, 1997, at 11:34 a.m. Rodriguez testified that he had never

met, nor had he ever seen, the Defe ndant. On
cross-e xamin ation, Rodr iguez testified that he was not sure whether Dezer Prope rties owned the Driftwood hotel in 1997 and that he was not working at the Driftwood a t that time.

Marion Graham

testified that she was Don Graham’s sister-in-law and Deborah Graham’s and Denice Smith’s aunt. Marion Graham testified that, during the after noon of July 24, 1997, she learned that the victim was killed from he niece Jennifer Gainer. She stated that, on that same day at around 6:00 p.m. or 6:30 p.m., Denice Smith called her, and then, at approximately 12:30 a.m., Denice Smith arrived a t Marion Gr aham’s house with Don Graham, Brittany Smith and Joshua Smith. Marion Graham testified that Deborah Graham called her

earlier that evening and g ave her
a phone num

ber in Florida to give to Don Graham when he got to Marion Graham’s house. Marion Graham stated that she gave

Don Graham the number, and Marion Graham’s phone records showed that at 1:04 a.m. a call was placed from her house to Florida

that lasted forty-e

ight minutes. Marion Graham testifie d that, when Deborah Graham called he r, she sound ed hyster ical a nd she was as king, “Where’s my

dad? He’s gone, he’s checked out, he’s not here. Have you heard f

rom him? Where didthey go.” Marion Graham told Deborah Gr aham that she had spoken with both Don Graham and Denice Smith.

Marion Graham testified that the victim’s children, Brittany Smith and Joshua Smith, stayed withher for a day or two until she brought them back to Cocke County. Mar ion Graham testified th at Denice Smith had already gone back to Cocke County . Marion Graham testified that, in t h e da ys that she was with Brittany Smith and Joshua Smith, Brittany Smith talked about her fee lings2 Issues (10), (11), (12) a nd (13) , whi le r ais ed in the Defenda nt’ s st ateme nt of the i ssues , were n ot menti oned in any o ther sec tion of the De fenda nt’s brief. T herefo re, we h old th at th ese is sue s ha ve be en w aiv ed. Tenn. R. Cr im. P. 1 0(b ); see also Te nn. R. A pp. P . 27(a )(7).
-12- about the victim’s death, but did not mention any conversa tion that she might have overheard regarding the dea

th.

Jennifer Gainer testified that she was Don Graham’s daug hter and Denice

Smith’s and DeborahGraham’ s sister. Sh e testifi ed that, when she heard about the victim’s death, she called her aunt, Marion Graham. She testified that Deborah Graha m calledher and that

she was “

hys terical ” and looking for

Don Graham. Gainer stated that she and Marion Gr

aham ca lled eac h other multiple ti me s t ha t d ay.
The jury found the Defendant

guilty of first d egree murder a nd sentenced the D efenda nt to life in prison with the possibility of parole. The Defendant filed a timely motion for new trial, which the trial cou

rt denied. The D efendant now appeals contending that: (1) the prosecutor made improper statemen ts to the jury; (2) the trial c ourt improperly admitted into evidence two pieces of evidence and statements of h is co -defendants; (3 ) the tria l court e rred when it ref

used to g rant his
r equest for a co ntinuance; (4) the trial court erred when it re fused to grant him a judgment of acquitta l; (5) the trial court

erred w hen it instr

ucted the jury ; (6) the v oir

dire was improper; (7) the trial court erred when it refused the De fendant’s request to change ve nue; (8) the tr ial court erred when it refused to admit

drawings made by

a key prosecution child-witness; (9) the trial court erred when it allowed two witnesses to remain in the courtroom for the duration of the trial; (10) the trial court er re d w he n i t r ef

us ed to co ns id er ev id en ce re ga rd in g s ta te me nt s a ll eg ed ly made by the jury foreman; (11) the

trial cou rt erre d when it r

efused t o allow a N

ew York s earch w arrant

and aff idavit to be admitted into evidence; (12) thetrial court erred when it allowed a photogr aph of the deceased to be admitted into evidence; and (13) the trial court erre d when it did not review the “TBI file.” 2 II. Pre-trial Rulings The Defend ant arg

ues that the tr

ial cour t erred when ruling on se

veral of his pre- trial motio ns. First, the Defendant contends that the trial court erred when it refused to grant his motion for a continuance. Second, the Defendant contends that the trial court erre d when it denied his motion for change of venue. L

astly, the Defe

ndant contends that the voir dire was improper.
A. Motion for Continuance

The Defendant contends that the tri al court erred when it denied his request for a continuance, butdoes not cite where in the record he made t his motion. T he State c ontends th at this issu e is waivedbecause there was no formal motion for continuance filed. A thorough review of the recor d revealed multiple motions for cont inua nce, all of which were gra nted by the trial cour

t, save one. We presume that the De fendant appeal s the motion for continuance that he filed under seal on Februa ry 23, 2001, w

hich the t rial cou rt denie d, and now

addressthis issue o n appea l.-13-

In the Defendant’s motion to continue, theDefend ant asse rted tha t the State didnot provide him wi th in fo rm at io n r eg ar di ng Ha rr y Da vi d H od ge . S pe ci fi ca ll y, the Defendant contended that the Stategave h

im a list of p erso n s considered suspects at the preliminary stages of the investigation, which included a suspect identified as “George (last name unknown), ” and t hen on February 21, 2001, the State

provided pictures of the four peo ple who B rittany

Smith faile d to identif

y on August 5, 1997, including a picture of Harry David Hodge. The Defenda ntalleged that theState ca lled to informthe defe

nse that, in pre parati on for trial , it re aliz ed tha t Brit tany Smi th di d iden tify Hodge as being one of the “Georges,” and that the D etective was mistaken when he testified that she had not identified any of the

pictures. Upon this basis, the Defendant requested that the trial be continued
so th at hi s i nv es ti ga to r c ou ld fu rt he r i nv es ti ga te Ho dg e’ s i nv ol ve me nt in th is mu rd er . A dd it io na ll y, the inves tigat or tes tifi ed tha t he ha d alrea dy interv iewed Hodge with relation to this case, but that, had he known that Brittany Smith identified Hodge, his approach in interviewing Hodg e would have been dif ferent

. In response

to the Defe

ndant’s m otion for a continu ance, th

e State f iled a let ter that t he State furnishedto the Def

endant, which provided

statemen ts from bot

h Georg e Penta a

nd Hodg e. I

n this letter, the State underlined that these statements wer e pro vided as possible Brady materia l, specific ally

that these statements “conflict with the statement of [B rittany Smith].” Further, on cross-examination, the inves tigator admitted t

hat in Hod

ge’s st atement, which the

Stateprovided to the defense, Hodge maintained that he di d not know D eborah G raham a nd that he had not be en to Tennessee recently. T

he investigator stated that from this he would have to assume that the reason Hodge was being asked about Tenn essee w as because he was a suspect of some sort. The investigator

admitted t

hat, even t hough the State may not have listed Hodg e as a suspect, he “knew he had beentreated as a suspect at some point by the government.” Based upon this admission, the Court overruled the motion for continuance.

The granting of a continuance rests within the sound discretion of the trial court. State v

. Hines , 919 S.W.2d 57 3, 579 (Te nn. 1995) ; Moorehe ad v. State , 219 Tenn. 271, 409 S.W.2d 357, 358 (1965); State v. Morgan

825 S.W.2d 113, 117 (Tenn. Crim. App. 1991). A reversal may only occur if the denial wa s an abuse o f discre tion and th

e defendant was improper ly p rejudic ed in that

a different result might reasonably

have been reached if the continuance had been granted. Hines , 919 S.W.2d at 579; State v. Caughron , 855 S.W.2d 526, 534 (Ten n. 1993); State v. Dykes , 803 S.W.2d 250, 257 (Tenn. Crim. App. 1990); Baxter v. State , 503 S.W.2d 2 26, 230 (T enn. Crim. App. 1973). An abuse of

discreti on is demonstrated by showing that the failure to grant a continuance de nied the defendant a fa ir trial orthat it could be reasonably concluded that a different result would have followed had the continuance been granted. Hines , 919 S.W.2d at 579. The burden rests upon the defendant to show that the trial court’s denial of the motion to continue was prejudicial. Baxter , 503 S.W.2d at 230.

The Defendant cites State v. Reynolds , 671 S.W.2d 854, 856 (Tenn. Crim. App. 1984), for the proposition that there are five factors that a court should consider w hen determining whether

the trial court should have granted

a continuance to interview or procure a defense witness. In Reynolds ,-14-

this court found “helpful” the five factors articulated in Dickers on v. Alab ama , 667 F.2d 1364 (11th Cir. 1982). Those factors are:

The first factor is the diligence of defe nse counsel in int erviewing the witness and attempting to procure her

attendance. The second factor is the pr obability of

securing the testimony within a rea sonable t ime . The third factor is the specificity of the person’s expected testimony. The fourth fac tor is the degree to which the expected testimonyis favorable to the defendant. The fifth factor is the un iquen ess, or the cumulative nature, of the expected testimony

. Reynolds , 671 S.W.2d at 856. Based upon these factors, the Defendant c ontends that the trial court’s denial of his motion to co ntinue pr ejudice d him and c onstituted revers ible error. Specifically , the Defendant

asserts that it was his contention at trial that the m eetin g where the Defenda nt stated, “We’ve k illed someone,” about which Brittany Smith testified, never took place. The Defendant asserts that when he learned that Brittany Smith identified Hodge, “it became critical to the def ense

. . . to show that [Hodge], and for that matter [the Defe ndant], we re not and could not have been present at the meeting Brittany Smith says occurred in the motel room a fter the killing.”

We do not find

the Defe ndant’s c ontention

persuas ive. The

Defend ant’s investigator testifie d that he interviewed

Hodge and that he knew that Hodg e had been treated as a suspect. He knew that the police questioned Hodge as to his whereabouts when the meeting allegedly

occurred. Further, the Defendant was aware that B rittany Smith identified two Georg es, and the State gave the Defendant

a picture of

Hodge as possible exculpatory evidence. While the investigator testified that he would have interviewed Hodge diffe rently had he b een awa

re th at Brittany Smith identified Hodge, he still had the opportunity interview Hodg e. According to the Defenda nt, “the intervi e w clearly showed that [Hod ge] was not present at any meeting where the death of [the victim] was d iscussed.” This testimony is not specific or unique and, while it may have impeached Brittan y Smith’s testimony, it is not highly favorable to the Defend ant. After a review of the entire record
we do not find

that the d efenda nt failed to rece ive a fa ir trial or t hat a dif ferent result wouldor might reasonably

have been reached if a c ontinuance had been granted. Therefore, we conclude that the trial judge did not abuse its discretion when it denied the Defenda nt’s motion for a continuance.

B. Motion for

Change of Ve

nue
The Defendant contends that the trial court erre d when it denied his motion for change of venue. When addre ssing thi s issue, the Defe ndant’s b rief, in i ts entire ty, reads:

It is the position of [the Defend ant] that the court erred in refusing to cha nge venue basedupon publicity

at the time

of the co mmission of

the crime , publicity surrounding the prior trial of Smith and Gr aham, and publicity prior to [the Defen dant’s] trial. This publicity took place throug h the newspaper, radi o, an d television. Based on the enormou s amount of publicity it was impo ssible to g et a juror who had not be en exposed

to this publi city , prior to

trial.-15-

The Defendant does not cite to therecord or provide any citation to any leg al authority. The State contends that the D efenda nt waived this issue a

nd is corr ect that i s sues that

a re not ad

equatel y briefed are deemed waived. Tennessee Courtof Criminal Appeals Rule 10(b) states that “[i]ssues which are not suppor

ted by argume nt, citati on to autho

rities, or appropr iate ref erence s to the record will be treated as waived in this court.” See also Tenn. R. App. P. 27(a)(7). Accordingly , we conclude that the Defendant has waived this issue.
C. Voir Dire

The Defend ant asse

rts that the “jury

panel w as illegal in that it contained at least five members, or their spouses of people who were on the gra nd jury which

indicted Rivera.” Further, the Defendant claims that three jury members should have been exc used for

cause, “ two of thos e jurors were Marshall and Vick.” The Defendant contends that “Juror Marshall indicated that he had read about the alleged perpetrator of this offense and had formed an opinion at the time he had read that and that t he two sist

ers had s ecured

[the Defe ndant] to kill [the victim].” We only address the Defendant’s contention that “Marshall” and “Vick” should hav e been e xcused for

cause since tho se are the only jurors whose na me he provided in his brief. The Defendant has waived any other issue withany other juror

by not provid

ing the j uror’s n ame and n ot providi ng any citationsto the record. Tenn. R. Cr

im. P. 10(b) ; see also Tenn. R. App. P. 27(a)(7).

A rt icleI, section 9, of the Tennessee Constitution assures the accused in a criminal p rosecution “the right, among other rig hts, to a speedy public trial . . . [by ] an impartial jury.” To
ensure an impartial jury Tenne ssee Rule of Criminal Procedure 24 provides that the Defendant, or the State , may

challen ge a jur

or for c ause. Th

e Rules sta

tes: (B) Challenges for Cause. — If the trial judge, a fter examination of any juror , is of the opinion that grounds for challenge f or cause are present, the

judge sh all excuse that juror from the trial of

the case . . . . Any

party may challeng e a prospective juror for cause if:
. . . . (2) T

he prospective jur

or’s expos ure to potentia ll y prejudicial informa

tion makes the person unacceptabl e as a juro r. Both the degree of e xposure and the prospective juror’s testimony as to his or her state of mind shall be consider ed in determining acceptability. A prospective juror who states that he or she will be unable to overc ome preconc eptions sh all be subject to challenge for cause no matter how slight the exposure. If the prospective juror has seen or heard and remembe rs information that will be developed in the course of trial, or that may be inadmissib le butis not so pr

ejudicia l as to cre ate a sub stantial r isk that hisor her judgment will be affected, the prospective juror’s acceptability shall depend on whether the testimony
as to imparti ality

is believed. If

the prosp ective ju

ror admit s t o having formed an3 Th e com men ts to this rule sta te:

A prospe cti ve ju ror wh o has f ormed or e xpres sed an opini on as t o the meri ts of the cas e may st il l be qualif ied to serv e, but o nly upo n an un equ ivoca l showin g of imp artiality. The Com miss ion dis approves of questions tending to lead the pro spec ti ve juror o r suggest partiality in the first instance, and also disappro ves of that p roce dure in “reha bilitating” the pro spec tive juro r into vo calizing impa rtiality. Such a pros pecti ve ju ror s houl d be hel d to be qual if ied on ly upon a t

rul y un equiv ocal showi ng of impa rtiality.

Ten n. R. Crim. P . 24, Ad visory Com mission Co mmen ts. -16- opinion, he or she shall be subject to challenge for cau se unless the examination shows une quivocally th at the pr ospectiv e juror c an be impa rtial. 3

Tenn. R. Crim. P. 24. “The challenge for cause wa s designed to exclude from thejury [prospective jurors] whose bias or prejudice rendered them unfit . . . .” St at e v . H um ph re ys , 70 S.W.3d 752, 765 (Tenn. Crim. App. 2001) (quotin g Manning v. State , 155 Tenn. 266, 292 S.W. 451, 455 (1927)). Jurorqualific ation re sts within the discretion of the trial court and “the trial judge’sfinding a juror to be qualified will not be disturbed on review ex cep t on the clear showing of an abuse of discretion.” Hu mp hr eys , 70 S. W .3d at 765 (q uoti ng Burns v. State 591 S.W.2d 780, 782 (Tenn. Crim. App. 1979)); State v. Scarb rough , No. E1999-00931-CCA-R3-CD, 2001 WL 775603, at *9 (Tenn. Crim. App., at Knoxville, July, 2001), perm. app. denied (Jan. 7, 2002).

Alth ough jurors ma

y be excluded f

or cause if they have for med an opi

nio n which will prevent im pa rt ia li ty, “[j]urors need not b e totally ignora nt of the facts of the case on which they sit [and even] the formation of an opinion on the merits will not disqualify a juror if [the juror] can lay aside [his or her] opinion and render a verdict based on the ev idence presented.” State v. H owell , 868 S.W.2d 238, 249 (Tenn. 1993). The Un i ted States Supreme Court has made the following observation:

In these da ys o f swift, widespread and diverse methods of communication, an importantcase can be expected to arouse the interest of

the public in the vicinity, and
scarce ly any of those bes t qualifie d to serve as juror s will not ha

ve forme d some impression or opinion

as to the me

rits of the

case. T his i s p articula

rly true in criminal cases. To hold that the mere existence of any preconceived notion

as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard.

Irvin v. Dowd , 366 U.S. 717, 722-23 (1961). Thus, so long as a juror can se t a si de an y pr ev io us lyformedopinions and render a verdict based upon the evidenc e presented in court, the j uror may properl y partici pate in t he case. Id. In the case und er submiss ion, while

Juror Mars hall initia

lly indicatedthat he had read in the newspaper about the murde r and the Defendant’s involvement, he also told the court that he could serve on the jury and dec ide this case based upon only the evidence that was produced in this case and the law.4 Pla in Ta lk is a newspaper that ci rculates l ocally in Cocke County and which carried st ories of the murder.
-17- [DEFENSE]: You’ve read the Plain Talk 4

. . . . stories about [the victim] , . . .back in July of 1997, Debbie

Graham and Denise Smith, [and the Defendant]. Have y ou read anything in the Plain Talk that y ou reca ll about tho se individ

uals or these eve

nts.

. . . . [MARSH AL L]: I don’t know if I read this or heard it. Exactly what’s in my mind that I heard or re ad? . . . Two sis ters had him to do it or

something

or other like that. [DEFENSE]: Did you recognize his name when . . . . [MARSHALL]: I

t has been so long ago I ’d forgotten [DEF ENSE] : Do you rec all how long ago that was that y ou heard t

hat? Was it around the . . . [MARSHALL]: I

t was around the time that it happened. [DEFENSE ]: Do y ou reca ll any thing el se about it? [MARSHALL]: The father ha d custody of the childre

n. [DEFENSE]: Okay. Any thing else? [MARSHALL]: I

think that’s about all I remember. [DEF ENSE] : Did you form any kind of opinion back

when you heard tha

t anywhere from that [the Defendant] wasn’t involved in it, may have be en a little

involved in it, he was involved in it, did you form any opinion at that time? [MARSH AL L]: Well, anytime y

ou read something in the paper y ou form an opinion, you know. [DEFENSE]: What opinion did you form at that time? [MARSHALL]: You automatically think what you read in the pa per is true. [DEF ENSE] : I understand. I don’t mean to put words in your mouth at all, but based
on what you reca

ll r eading did y ou form an opinion that [the Defendant] was or wasn’t in volved in it? [MARSHAL

L]: Well, you

think he is , I me an when y ou read s omething

like that. [DEF ENSE] : Would it require some proof from the Defendant’s side to change tha t opinion? [MARSHALL]: No, the burden of proof is on the State. [DEF ENSE] : Has any

thing ha ppened b etween

the time th at y ou read t

hat or he ard it
an d I u nd er st an d .

. . th at ha s c ha ng ed you r o pi ni on in an y wa y. [MARSHALL]: My

mind is open.

. . . . [DEF ENSE] : [I]s there any

thing that you know

about yourself that would c ause you any concern as fa

r as your being able to be fair to both sides, the State and the Defend ant? [MARSHALL]: No.

. . . . [THE COURT]: I wan t to ask a question or two, Mr. Marshall. You kind of indicatedsome thought, opinion what ever ca me to you

r mind. I ’m not sure

really whether it was an opinion. But you now say y ou’re open-minded but then y ou also-18-

said that really nothing

had happened to change that thought or opinion if

we call it that. And that r

aises a li ttle bit of incons istency . But I

think I understood what y ou were saying. A

re you say ing that you read the

newspaper

or whate ver, some thoughts came to your mind . . . [MARSHALL]: Right [THE COURT]: . . .now you have an open mind. Does that mean those thoughts are not there now? [MARSHALL]: Yeah. [THE COURT ]: And then the final question, and y ou’ve served on juries before. Can you serve on this jury and dec ide this ca se based upon only

the evide nce that is produced in this case and then the law that I ’ll apply to that evidence ? [MARSHALL]: Yeah.

We hold that since Juror Marshall statedthat the State had the burden of proof and indicated that he could serve on the jury and decide the case based upon only the evidence and the law, the trial court did not abuse its discretion in refusing to excuse Juror Marshall for cause.

While the State is correct

that the Defendant waived the issue of whether the trial court erred when it refused to excuse Juror Vick for cause by providing no citations to the record or any argume nt, we brief

ly a ddress th is issue. During voir dire, the following questions were a sked of, and responses given by , Juror Vick:
[DEFENSE ]: Let’ s talk

about the Plain Talk . Whatdo y ou reca ll . . . [abou

t] these events back in July of ‘97. . . . [VI CK]: I mainly

just recall reading. I

probably made c omments, I don ’ t know. That’s too far back. [DEFENSE]: Do you recall any thing you re ad . . . . [VICK]: Not in detail, no, I don’t remembe r . . . . [DEFENSE]: . . . As you sit there do y ou recall any

of the details that you re ad? [VICK]: I remembe

r reading that a girl

and her sister

had hired someone to kill her husband. I don’t remember the names, I just don’t. . . . [DEF ENSE] : Do you

recall a ny f acts othe r than wh at y ou’ve jus t told us at any time as far as reading the pape r is concerned? [V IC K] : I remember re ading that the two girls went to jail. I don’t remember the details.

. . . . [DEF ENSE] : . . . Do y

ou reca ll forming any

opinion of any ty

pe when you

read what you read? [VICK ]: Probably

ye s. [DEFENSE ]: What opinio n do y ou reca ll? [VICK ]: I wou ld imagine that

I believed part of wha

t I read. I do not believe all of what I read. But I’m sure

that I read enoug

h to say this guy

has killed so-and-so; oh, that’s bad; or – I really , I don’t know what y ou’re expecting me to say

. . . .-19-

[D EFEN SE]: Do you mean a fter you re ad what you re ad, and it may have been on
more than one o ccasion , that y ou did or di dn’t for

m an opinio n as to whether or not [the Defend ant] did an y killin g? [VI CK]: I would imagine that y es, I thought by

reading it that I would say yes, he did, you know. [DEFENSE]: Has anything ha ppened since then that has changed tha t opinion? [VICK ]: Being here ch anged

it. [DEFENSE]: How? [VICK ]: Becau se y ou’ve g ot to hear what’s in the cour troom. [DEFENSE]: Would you have to hear something to cha nge that opinion? [VI CK]: If y

ou’re sa yin g that I

have for med an opinion and r

ight th i s minute tha

t I say , ye s, he’s g

uilty , I do n’t know th at y et. [DEF ENSE] : Not e xa ctly

what I ’m say

ing but I ’m asking

if it would

take some evidence to overcome that prior opinion y ou formed? [V ICK ]: I’d ju st ha ve to he ar wh at ev id en ce is he re to fo rm an op in io n e it he r w ay. [DEFENSE] Are you say

ing you don’t ha

ve an opinion now? [VI CK]: Well, I

would say

that I am a fair person and that I would have to he ar. Like you say, the State has to prove it, rig ht? Okay. Like I sai d, I’ve be en on e nough
cases to know that I’ve been disappointed whe n I left because it wa sn’t proven, I’m
so rr y, you know. But that’s wha t I’m say ing. Reading an artic le and you rea d and it’s, li ke I sa y, it’s a happening and it’s over, y ou don’t think

about it. But then when you’re brought down here and y ou’re put in aposition to w here y ou have to

judge it makes a difference.

From this transcript, we hold that the trial court did not abuse its discretion when it refused to excuse Juror Vick for cause. While Juror Vick mentione d that she read an article in the newspaper, she clea

rly understood her duty a s a juror to hear the evidence presented and to decide the case on that evidence alone. III. Evidentiary Issues

The Defendant contends that the trial court improp erly admi tted, and

refuse d to admit,
mu ltiple pieces of evidence and testimony . First, the Defendant contends that the trial cour t improper ly ad mi tt ed a h an dc uf

f k ey i nto evidenc e that was found on him when he was arrested. Second, the Defe

ndant con tends tha t the tria l court e rred when it

admitted pictures of his tatt oos into evidence. Third, the Defendant contends that the trial court err ed when it refused to ad m it into evidence drawings that were made by Brittany Smith, which alleg edly depicted the victim

as being
mean. Finally, the De

fendant contends that the trial court improperly admitted int o evidence testimony of his co-defe

ndants.

In Tenness ee, admi ssibility of evidence is within the sound discretion of the trial judge. State
v. Saylor , – S.W.3d –, E2001-00604-SC-R11-CD, 2110 WL 22238947 (Tenn. Sept. 30, 2003). The de termination of whether proffered evidenc e is relevant in accordance with Tenne ssee R ule o f5 During the pre-tr ial heari ng the Defendant’s attorney stated, “ And I thi nk I under stood the Court rul ed that the hand cuff key d oes c ome in?” a nd the trial judg e resp ond ed, “I d id.”
-20- Evidence 402 is lef

t to the sou

nd discre tion of the

trial judg e, as is the determination of whether the probativ e value o f evidence is subs tantially outweig hed by the possib ility

of preju dice pur suant to Tennessee Rule of Evidence 403. State v. Kennedy , 7 S.W.3d 58, 68 (Tenn. Crim. App. 1999) (citing State v. Forbes , 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995 )); State v. Burlison , 868 S.W.2d 713, 7 20-21 (Tenn. Crim. App. 1993)). In making these decisions, the trial court mus t consider the quest ions of fa ct that the jury will have to c onsider i n determin ing the a ccused’ s guilt
as well as other evidence

that has been introduced during the course of the trial. State v. Williamson , 919 S.W.2d 69, 78 (Tenn. Crim. App. 1995). We will only disturb an evidentiary ruling on appeal when it appea

rs that the trial judge arbitr

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

Initialquestions of admissibility of evidence ar e governed by

Tennessee Rules of

Evidence 401 and 40 3. These rules require that the trial court must first determine whe ther the pro ffere d evidenc e is rele

vant. Purs uant to Rule

401, evid ence is d eemed r elevant if it has “a ny t endenc y to make the existence of any f act that is of consequence to the de termina tion of the action more probable than it would be without the evidence.” See Forbes , 918 S.W.2d a t 449. I n other w ords, “evidenceis relevan t if it he lps the trier of fact resolve an issue of fact.” Neil P. Cohen, et al., Tennessee Law of Evidence § 4.01[4], at 4-8 (4th ed. 2000).

After the trial court finds that the

proffe red evid ence is r elevant , it then weighs the probative value of that evidence

agains t the risk t

hat the evidence

will unfa irly prejudic e th e trial. State v. James , 81 S.W.3d 751 , 757 (Te nn. 2002) . If t

he court finds tha t the prob ative va

lue is subs tantially outweighed

by its prejudicial effect, the evidence may be excluded. Tenn. R. Evid. 403. “Excluding relevant evidence under this rule is an extraordinary remedy that shou ld be used sparingly and persons seeking

to exclude

otherwis e admissib le and relevant evidence have a sig nificant burden of persuasion.” James , 81 S .W.3 d at 75 7-58 ( quot ing White v. Vanderbilt Univ. , 21 S.W.3d 215, 217 (Tenn. Ct. App. 1999)). A. Handcuff Key

The Defend ant alleg es that the trial cou rt erre d when it a

llowed the

State to a

dmit into
ev idenc e a handcuff key

that was confiscated from him when he was arr ested. Tthe New York officer testified that he found the key on the D efendant at the time of arrest and that the key did not open the handcuffs that

were found at the scene of the murder. The State cla ims that the Defendant has waived h

is right t o appea l this issue

because he did not o

bject to the key be ing ente red into evidence at

trial. However, the record reflects that the Defe ndant filed a motion in limine to prevent the State fro m introduc ing the handcuff key , which the trial court denied. 5 We conclude that the ruling was sufficiently c lear that further objection at the trial was not necessary

. See Goines v. State , 572 S.W.2d 644, 649 (Tenn . 1978); St at e v. Gallaher , No. E2001 -018 76-CC A-R3 -CD, 2003 W L 21463017, at *2 (Tenn. Crim. App., at Knoxville, June 25, 2003). The Defendant need not renew-21-

his objectio n during

the trial to save th

e issue f or appea l; theref ore, the Defend ant has not w aived this issue.

The Defendant asserts that the handcuff key was not relevant pursuant to Tennessee Rule of Evidence 401 and therefore inadmissible pursuant to Tennessee Rule of Evidence 402. Further, the Def endantasser ts that, even if relevant, t he proba tive valu e of the h andcuff key was substa

ntially outweighed

by the danger of unfair prejudice pursuant to TennesseeRule of Evidence 403. At the hearing on the Defendant’s motion for ne w trial, the trial court stated: I’m going to have to overrule [the admittance of the handcuff ke y] as a grounds for a motion for new trial. The handcuff key, eve n though it came at a later time [than the arrest], was re le va

nt. Qu ite fr an kly , w as n’ t it

pr ove n a t tr ia l th at it d idn ’t f it? It cut both way s and I

think it wa s admitted

with the understan ding tha t it didn’t fi t. You all checked it, y ou know, before it was ever actually introduced. So I

felt that it was relevant.

But then on the other hand, and I r ealize there are times that items l ike this could have been offered to be introduce d and it would have been impr oper to do

it, butu nder the facts of this case that’s just another piece of evide nce. It was something that

he po ssessed at the time. You know, had he possessed let’s say marijuana or dru gs or so methi ng, that might not have been admissible. But under the particular facts of this case it was relevant and shou l d have been admitted and of course was admitted.

The trial court determined that the handcuff key was relevant, and we conclude that the trial court did not abu se its discretion by so determining. Brittany

Smith testified that the Defendant was
ca rrying handcuf fs when s he met him a

nd befor e he lef t with Den

ise Smith in t

he renta l car

. Detectives found handcuffs at the scene of the victim’s murder

. The Defendant was in possession of a handcuff key

at the time of his arrest. In lig ht of this, the trial court did not abuse its discretion when it de

termined that the h andcuff

key was rele vant.
Si mi la rl y, we find that

the trial court did not

abuse its discretion when it determined that the probative value of the handcuff key was not substantially outweighed by its prejudicial eff ect. As the trial c ourt noted, the handcuff key found on the Defendant did not fit the handcuffs tha t wer e found at the scene of the cr ime. The t

rial cou rt accu rately stated tha t this evidence “cut both way s.” Theref ore, we conclude that this is sue is with out merit.

B. Pictures of Tattoos

The Defendant

next alleg es that the

trial cou rt erre d when it a

llowed the

State to a

dmit pictures of his tatt

oos into evidence b ecause this evidence “was not

necessa ry ” since “ Brittan

y Smith identified the Defendant from the witness stand without the aid of tattoos.” Converse ly, the State contends that the trial court properly admitted the pictures, because the p ictures “w ere hig hly-22-

relevant to demonstrate that Brittany Smith recognized and could accurately identify the Def

en dant .” The trial court

found that t he pho tograp hs wer e relev ant an d admi ssib le, st ating, “I don’t know that I can even sa

y that they

were prejudicial . . . .”

To be admissible, a photograph must be relevant to some issue at trial and the dang er of unfair prejudice, confusion of the issues, or misleading the jury

must not sub stantiall

y ou tweigh its probative value. Tenn. R. Evid. 403 ; State v. Banks , 564 S.W.2d 9 47, 949 (T enn. 1978 ); Gallaher , 2003 WL 21463017, at *2. The determin ati on of the admissibility of photographs lies within the sound discretion of the trial court. Gallaher , 2003 WL 21463017, at *2. Before any

photograph can be admitted into evidenc e it must be verified and authenticated by a witness with knowledge of the facts. Banks , 564S.W.2d at 949-50.

The trial cou

rt’s disc retion to a llow a jur y to “view c ertain

aspects of an individual’s physical appearance, such as tattoos or scars” is recog

nized in 3 Warton’ s Criminal E

vidence § 16:20 (15 th ed. 1999). See State v. Henderson , No. W2000-00607-CCA-R3-CD, 200 1 WL 9127 59 (Tenn . Crim. App., at Jackson, Aug. 10, 2001), perm. app. denied (Feb. 1 1, 2002) (

holding t hat did not

violate the defendant’s constituti onal rig hts when it required the defendant to display his teeth t

o the jury ); see also State v. Henderson , 623 S.W.2d 6 38, 641 (T enn. Crim. App. 1981 ) (holdin g th at the tri a l judge’s forcing

the defe ndant todisplay to the jury a distinctive tattoo on his arm did notviolate the defendant’s Fifth Ame

ndment rig

ht against self- incrimina

tion); Black v . State , 479 S.W.2d 656, 658 (Tenn. Crim. App. 1972) (holding that the trial court did not err when it required the defendant to stand up before the jury

to p resent a front and side view that reveale d a disfigurement that was previously ref

erred to by

a witness).

While the cases cited above address whether compelling a defendant to reveal a scar or tattoo violates a defendant’s constitutional right against self-incrimination, we find that they are

instructive to our holdin g in the c ase unde r submi ssion because i n none of these cases was it considered in fl am ma to ry, cumulative or unnecessary to compel the defendant to reveal tattoos or scar s. In

fact, in all of these cases, the evidence was c onsider e d relevant and admissible. Similarly, the photographs of the Defendant’s tattoos were bothreleva

nt and adm

issible. T he evide nce in thi s case was purely circ

umstantial, and one of the issues was whether Brittany Smith correctly identified the Defend ant. Brittany Smith testified that she noticed the De fendant’s tattoos upon first meeting the Defend ant, and she described those tattoos to the jury . Therefore, the p hotographs of the tattoos
were hig hly

releva nt to Brit tany Smith’s cr

edibility and to her

identific ation of th

e Defe ndant. Further, in light of the many c ases that hold that this evidence doe s not violate the Defendant’s constitutional rights, we find that this evidence is not unduly prejudicial. Accor dingly, we

conclude that trial court did not

abuse its discretion by a

dmitting t he photog raphs of the Defe ndant’s t attoos. C. Brittany Smith’s drawings

The Defendant contends that the trial court erre d when it refused to allow h im acce ss to the filethat the Department of Children’s Services create d prior to Debbie Smith’s divo r ce from the victim because “if there is evidence in that file which woul d reflect on the credibility of Brittany-23-

Smith, t hen [the Defendant] should be entitled to that and should have been entitled to that at the time of trial.” The file contained some pictures that Brittany Smith drew before the divorce. The Defendant

also contends that it was error for the trial co urt to not allow the “introduction of the findi ngs of the divorce court as it related to allega tions that Brittany [Smith] made . . . .” In his brief, the Defend ant make s no citati ons to the record and, according ly, has waived this issue p

ursuant t o Tennessee Rule of Criminal Procedure 10(b). Assuming the Defe

ndant did n ot waived

this issue, it is without meri t. The trial court reviewed the rec ords in camer

a and determined that not hin g contained therein was in any way relevant to Brittany Smith’s credibility or any other

issue at trial. After thoroughly reviewing the record s, we agree with the tri al cour t that they contain n o releva

nt evidence and, pursuant to Tennessee Rule of Evidence 401, the trial court did not abuse its discretion when it determined that the evide nce wasinadmissib le. Acc ordingl y, w e conclude that th

is issue is without mer

it.
D. Statements of Co-defendants

The Defendant contends that the tr ial cour t erred when it allowed the State to admit evidence that Denice Smith and De

borah Gr aham mad

e stateme nts to various witnesses that they would kill the victim or

have the victim killed, including statements made to: Sharon Jarvis; Sandra Strange; Christine Loveday ; and Martin Giovi. The trial court de te rm in ed th at th es e s ta te me nt s w er e h ea rs ay, butthat they were

admissible pursuant to Tennessee Rule of Evidence 803(3), which is c ommonly referred to as the “state of mind” exception. On appea l, the State

conced es that it w as erro

r for this testimony to be

admitted pursuant to Rule 803(3) rely ing on Statev. Long , 45 S.W.3d 611 (Tenn. Crim. App. 2000), but contends that the testimon y w as ad mi ss ib le as ad mi ss io ns by a pa rt yopponent , pursuant to Tennessee Rule of Evidence 8 03(1.2). We agree with the State on both
accoun ts.
The Defendant objects to thetestimony of Jarvis, Strange, Loveday and Giovi, based upon hearsay grounds. The respective statements of the respective witnesses are as follows: (1) Jarvis’s testimonythat, some

time betw een June of

1996 and A

ugust of 1996, Den

ice Smith told her that

she
was concerned that the victim would get custody of the children and, on three occ a sions, told her that, if the vic tim did ge t custody , she woul d kill him; (2 ) Strang e’s testimony that, some

time be tween Ma y of

19 97 an d J ul y of

19 97 , D en ic e S mi th in qu ir ed wh et he r S tr an ge “k ne w a nyb od y [who] could do a job for her? And I asked her w hat kind of job that she wanted done, an d she said that she would like to have [her] husband taken care of . . . ”; (3) L oveday’s te stimony that Denice Smithtold her, on more than one occasion, that if her husband ever got custody of

the children, she would kill him or have him killed; and (4) Giovi’s testimony that Deborah Graham requested that he “go down there and kill” the victim on three or f our occasions between 1994 and 1995. Hearsay is a “statement, other than one made by the declarant while testify ing at the trial or hearin g, offered in evidence to prove the truth of the ma tter asserted.” Tenn. R. E vid . 801(c). A hearsay statement

is not admis sibleexcept as provided by the r ules of evidence or otherwise by law. Tenn. R. Evid. 802. The trial court admitted the statements pursuant to the so called “state of mind”-24-

exc eption to the hearsay

rule found in Tennessee Rule of Evidence 803(3). The State properl y concedes, and we hold, that this was error. The state of mind exc eption ca

n only be used to show the declarant’s conduct. Tenn. R. Evid. 803(3). This Court has concluded: Only the decl arant’ s conduc t, not some third par ty’ s conduc t, is provab le by this hearsay e x ception. If the statement had been admitted solely to prove [the declar ant’s] conduct

. . . the statement

would hav e been a

dmissible. Howeve

r, it is clear that the st

ate ment was entered to prove Defendant’s c onduct, not [the declarant’s] and for this reason, should not have been admitted. Long , 45 S.W.3d at

623; see Tenn. R. Evid. 803(3), Advisory Commission Co mments. I n the cas e under submission, it is clear that the State offered the testim

ony of these four witnesses to

prove that Denice Smith and Deborah Graham did, in fact, hire or secure the Defendant to kill the victim. Therefore, this evidence was not proper ly admissible pursuant to the state of mind exception.

While the State concedes this error, it contends that the aforementioned

statemen ts fall into another exception, that of “a statement by a c o-conspirator of a par ty d uring th e course of and in furtherance

of the conspiracy .” See Tenn. R. Evid. 803 (1.2)(E). The ra tionale f or this exce

ption is the principle of agency , under whicheach conspirator is bound to the actions and statements made by other conspirators during the course of a nd in furtherance of a

common purpose. State v. Henry , 33 S.W.3d 797, 801 (Tenn. 2000) (citing Tennessee Law of Evidence § 803(1.2).6, at 521 (3rd ed. 1995)). T he Tenne ssee Supr

eme Court

stated tha

t:
[F]o r a statemen

t to be adm

issible und

er this exc eption, the prosec ution must establish: 1) that there is evidence of the existence of a conspiracy and the
c onnec tion of the declarant and the defendant to that conspira cy; 2) that the declarationwas made during the pendency of the conspiracy ; and 3) that the declaration was made in furtherance of the conspiracy

. Id. at 801-02. These requirements must be established by a pre

ponderance of

the evidence. State
v. Stamper , 863 S.W.2d 404, 406 (Tenn. 1993 ). If a conspiracy is shown to exist, the coconspirator’s state ment i s admi ssib le even thou gh no conspiracy has been formally

charged. State
v. Lequire , 634 S.W.2d 608, 612 (Ten n. Crim. Ap

p. 1981); see Statev. Alley , 968 S.W.2d 314 316 (Tenn. Crim. App. 1997). 1. Evidence of Existence of Conspiracy

We must first determine whether the State established by a pre ponderance of the evidence the existence of a

conspiracy

and the connection of the declarants, here Denice Smith and Deborah Graham, and the Defendant. A conspiracy is defined as “a combination between two or more persons to do a criminal or unlawful act or a lawful act by criminal or unlawful means.” State v. Carruthers , 35 S.W.3d 516, 555 (Tenn. 2000) (citi ng Alley , 968 S.W.2d a t 316; State v. Gaylor , 862 S.W.2d 546, 553 ( Tenn. Crim. App. 199 2); State v. Houston , 688 S.W.2d 838, 841 ( Tenn. Crim.-25-

App. 1 984); Lequire , 634 S.W.2d at 612). The State only has to show an implied under standin g betweenthe parties, not forma l words or a writte n agre ement, in

order to prove a conspiracy

. Gaylor , 862 S.W.2d at 553. “The unlawful confederation may be establishedby circumstantial evide nce and the conduct of the parties in the execution of the criminal enterprises.” Id. We find that the State proved the existence of a conspiracy

and established the connection betweenDenice Smith and Deborah Graham and the D efendant. There was ample evidenc e that Denice Smith and De

borah Gr aham both

sought to have the victim killed and that Deborah Graham
wa s soliciting someone to kill the victim for her sister as early as 1995. The De fendant was see n “riding around” with Debo rah Gra ham in the summer before the victim’s murder. Eight day s prior to the murder, a package c ontaining drugs was mailed to the victim from a post office 300 yards fr om the Defendant’s home and contained Debora h Graham’s fingerprints. Upon leav ing Tennessee, Denice Smith went to Florida, where Deborah Graham wa s living and where she had befriended the Defend ant. After meeting with Denice Smith and Deborah Gr aham, the Defen dant l eft with Deborah Graham fo r a co up le of

da ys and, when he returned, he met with Denice Smith and Deborah Graham and told De nice Smith t hat “we ’ve kille d someone .” I t is clear from this e

vidence that, by a preponderance of the evidence , the State established that evidence of a conspiracy existed as early
as 1995 and established the connection of Deborah Graham, Denice Smith and the Defe ndant to the
co ns pi ra cy. 2. Declaration Made During Pendency of Conspiracy
Next, we must determine whether the State established by a pre ponderance of the evidence that th e s ta te me nt s a t i ss ue we re ma de du ri ng th e p en de nc y of th e c on sp ir ac y. For a statement of a co-conspirator to be admissible:
[I]t must have been made “during the course of” the conspiracy

which means that the conspi racy

must h ave been ongoing at the time the stateme nt was made. If the conspiracy

had not yet beg

un or had ended when the statement was made, the declarationis not admissible under this hearsay e xception, alth ough it may still be admissible under some other exception.

Statev. Walker , 910 S.W.2d 381, 385 (Tenn. 1995). “Where a conspiracy exists, ‘everyone ente

ring into the conspiracy

is a party to eve

ry act which has before been

done by the others a

nd to every a

ct by the others afterward in furtherance of the common design.’” Carruthers , 35 S.W.3d at 556 (citing Owens v. State , 84 Tenn. 1, 4 (1885)) . “All acts or d eclara tions of c onspirat

ors, or of any of them, may be given in evidence ag ainst all, from the time the conspiracy had its or igin unti l its design has been consummated, or until it is abandoned.” Owens , 84 Tenn. at 1.

We find that the State proved by a preponderance

of the evidencethat all f

our state ments to which the Defendant objects were made dur ing the pendency

of the conspirac y between Denice Smithand Deborah Graham. At the time that Debora h Graha m reques ted that G

iovi kill the

victim, DeborahGraham was living in New York, and the stories of the victim’s abuse were relay ed to her-26-

by Denice Smith. Further, from subsequent events, we ca n i nfer th at it was upon Denice Smith’s request that Deborah Graham attempted to find someone to murde r the victim.

While it is clear each of the statements were made during the pe ndency

of the conspiracy betweenDenice Smith and Deborah Graham, the q uestion remains w

hether t he Defe ndant is responsi ble for statements made during the pe nd en cy o f t he co ns pi ra cy, but prior to his joining the
co ns pi ra cy. Using the holding in Carruthers as guidance, we hold that every one entering into the conspiracy

is a party to every statemen t, as well as act, whichhas been

done bef ore by the other s in furtherance

of the co nspirac y. T

his holding

accord s with

holdingsof other

courts interpreting the federal counterpa rt to Tennessee Rule of Evidence 803(1.2)(E) a nd other similar state rules of evid ence. See Un ited State s v. Cassity , 631 F.2d 461, 464 (6th Cir.1980) (adopting the holding articulated

in United States v. United States Gypsum Co. , 33 U.S. 364, 393 (1948) that “[w]ith the conspiracy

th us fu ll y e stabl ished , the d eclara tion s and a cts of the va rious membe rs, ev en tho ugh made or done prior to the adherence of some to the c onspiracy, become adm issi ble aga inst all as declarations or acts of co-conspirators in aid of the co nspirac y” ); United States v. Rocha , 916 F.2d 219, 24 0 (5th Cir. 1990) (ho lding tha t any statemen ts of the d

efenda nts co-de fendant s ma de i n furtherance

of a conspiracy

in which the defend an t was a participant were admissible, including statemen ts ma de be fo re th e d ef

en da nt jo in ed th e c on sp ir ac y s in ce there was evidence of the defendant’s subseque

nt knowle dge an d willing ness to pa rticipat e in the conspira

cy ); United States
v. Brown , 755 F. Sup p. 942, 946 (D. Colo. 1991) (holding that “[Federal Rule of Evidence] 801(d)(2)(E) permits admission of co-conspirator statements against a defe ndant who joins the conspiracy

after the statements are made”); People v. Beck , 593 P.2d 371, 373 (Colo. App. 1979) (holding that “[t]he acts and declar ations of co-conspirators, even those occurring prior to a defendant’s involvement, may be admitted against the defendant”). Accordingly , we find that the statemen ts to which the Defendant objects were made during the p endency of the conspiracy

between Denice Smith and Deborah Graham and, even thoug h the Defendant did not join the conspiracy until after the statements were made, he is responsible for them since there wa s evidenc e of his subsequent kn ow le dg e a nd wi ll in gn es s t o p ar ti ci pa te in th e c on sp ir ac y.

3. Declaration in Furtherance of Conspiracy

As we have determined that all four s tatement s meet the f irst two pr

ongs of the test, w e must now decide w

hether t he sta tem ents wer

e made “ in furthe

rance o f” the c onspiracy. T o be in furtherance

of the co nspirac y, t

he state ment must be

one that will advance or ai d the cons piracy in
some way. Statev. Heflin , 15 S.W.3d 519, 523 (Tenn. Crim. App. 1999). In Carruthers , the court explained that:
[A] statement may

be in furtherance of

the conspiracy

in countless ways. Examples included statemen

ts desig ned to g et the sc heme starte d, develop plans, arrange for thin gs to be done to accomplish the goal, update other conspirators on the progre ss, deal witharising

problems , and pro vide info rmation r elevant to the pro

ject. While such statemen

ts are or dinarily made toother conspirators, Rule 803(1.2)(E) does not-27-

so require . Stateme

nts to third parties may qualify if in furtherance of

th e c on sp ir ac y.
Carruthers , 35 S.W.3d at 555-56 (citing Tennessee L aw of Evidence, § 803(1.2)(6), p. 552). Casual conversations are not made “in furtherance of ” the conspiracy

unles s they somehow advance the objectives of the conspiracy

. State v. Hutchison , 898 S.W.2d 161, 170 (Tenn. 1994).

We concl ude th at Den ice Sm ith’s inqu iry of St range ab out wh ether S trange “knew anybody [who] could do a job for

her? And I ask

ed her w hat kind of

job that she wante d done, a nd she sai d that sh e would lik

e to have [her] husband taken care of . . .,” and De borah Graham’s request that Giovi “go down there

and kill [the victim]” were both in furtherance of the conspiracy . The aim of the conspira

cy was to kill

the victim , and the s i st ers attempted to achieve this end by procuring
someone to kill the victim. The evidence indicated that, after a period of

search ing for someone t

o commit the murder, the sister s successfully re tained the services of the Defendant, who the jur y found killed the

victim. The sisters ’ prior statements attempting to locate someone to kill the victim were both in furtherance of the conspira cy that the De

fendant later joined.

Co nv er se ly, we conclude that thestatemen ts made by

Denice Smith to Jarvis and Loveday to the effect that

if the victim got custody of the children she would kill him or have him killed were notin furtherance of t

he conspirac y. Denice

Smith’s statements were merely a declaration of her intentthat did absolutely nothing to advanc e or aid the c onspira cy in any way . Ind

eed, the se statemen ts appear to be a p art of a casual conversation rather than an attempt to further the
co ns pi ra cy. Thus, we agree with the Defendant that the trial court erred whe n it allowed Jarvis and Loveday to testify

about D e nice Smith’ s stateme nts. Howe

ver, we conclude that this e

rror is harmlessin light of the fact that the testimony of Strange and Giovi was admissible and was nearly ident ical a nd eve n more conde mnin g.
IV. Prosecutorial Misconduct

The Defendant contends that the prosecutor made two improper statements to the jury in his closing argument. First, the Defendant c ontends that the pro secutor gave the jury an incor rect definition of “reasonable doubt.” Sec ond, the D efenda nt contends that the

prosecu tor improp erly informedthe jury

that it did not matter whether the Defendant committed the murder, as long as the Defendant was “sitting in the car.”

The Tennessee Sup

reme Cour

t “has lon g reco gnized th at closing argume nts are a valuable privi lege that should not be unduly restricted.” Terry v. State , 46 S.W.3d 147, 156 (Ten n. 2 001) (citing State v. Sutton , 562 S.W.2d 820, 823 (Tenn. 1 978)); State v. G oltz ,111 S.W.3d 1, 5 (Tenn. Crim. App. 2003). “Consequently, a ttorneys are

given g reater lee way in arg uing their positions before the jury, and the tria l court has significant discretion in controlling these arg uments, to be reversed only upon a showing of

an abuse of that discretion.” Terry , 46 S.W.3d at 156 (c itin g Sutton , 562 S.W.2d a

t 823); see Smith v. State , 527 S.W.2d 737, 739 (Tenn. 1975); Goltz , 111 S.W.3d at 5. This Court has explained that “[closing] arguments must be temperate, based upon the evidence-28-

introducedat trial, relevant to the issues being tried, and not otherwise improper unde r the facts or law.” Goltz , 111 S .W.3 d at 5 ( citi ng Coker v. State , 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995)).

When an appellate cou

rt finds a n argument to be

improper , “the es tablis hed te st for determining whether there is reversible error is whether the conduct w as so improper or the argument
so inflamma

tory that i t affected the verdict to the Appellant’s detriment.” Goltz , 111 S.W.3d a t 5 (citing Harring

ton v. State

, 215 Tenn. 338, 385 S.W.2d 758, 759 (1965)). In measuring the prejudicial impact

of an improper argument, this Court should consider the following factors: “(1) the facts and circumstances of the case; (2) any curative measures undertaken by the court and the prosecutor; (3) the intent of the prosecution; (4) the cumulative effect of the improper conduct

and any other errors in the rec ord; and (5) the relative strength or we akness of the case.” Goltz , 111 S.W.3d at 5-6 (citi ng Judge v. State , 539 S.W.2d 340, 344 ( Tenn. Crim. App. 197 6)); see State v. Buck , 670 S.W.2d 600, 609 (Tenn. 1984).

In Golt z , this Court found that within the closing argument, five gene ral ar eas o f prosecu torial misc onduct ar

e recog nized:

1. It is u

nprofes sional co nduct for the prosecutor inte

ntio n ally to misstate the evidence or mislead the jury as to the inferences it may draw. 2. It is unprofessional conduct for the pr osecutor to e xpres s his [or her] personal belief or opinion as to the truth or falsity of any testimony or evidence

or the guilt of the defendant. See State v. Thornton , 10 S.W.3d 229, 235 (Tenn. Crim. App. 1999); Lackey v. State , 578 S.W.2d 10 1, 107 (Te nn. Cr im. App. 1978); T ENN .C ODE OF P ROF ’ L R ESPONS IBI LI TY DR 7-106(c)(4). 3. The prosecutor should not use arguments calcula t ed to infla

me the passions or prejudices of the jury

. See Cauthern , 967 S.W.2d at 737; State v. Stephenson , 878 S.W.2d 530, 541 (Tenn. 1994). 4. The prosecutor should refrain from arg ument which would divert t he jury from its duty to decide the c ase on the evidence, by injecting issues br oader th an the g

uilt
or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury ’s verdict. See Cauth ern , 967 S.W.2d a t 737; State v. Keen, 926 S.W.2d 727, 736 (Tenn. 1994). 5. It is unprofessional conduct for a prosecutor

to intentio nally

refer to or arg ue fact s outside the record unless the facts are matters of common public knowledge.

Goltz , 111 S.W.3d at 6 (quo ting S TAN DARD S R ELA TIN G TO THE P ROSEC UTION F UNCTIO N AND THE D EFENSE F UNCTIO N §§ 5.8-5.9 Commentary (ABA Pr

oject on Standards for Criminal Justice, Approved Draft 1971)).

The Defendant first contends that the prosecutor made an

improper statemen t by incorrectly defining “reasonable doubt” in his closing arg ument. However, the Defendant failed to object to this6 The Defendant’s attorney only objected to the prosecutor’s allege d comm ent s about the Defenda nt n ot testi fying and his comments about how the Defendant was guilty , whether he pull ed the trigger or was just si tting in the
car. -29- particular comment at

trial and did not raise this issue in his motion for new tria l. 6 Therefore, the Defendant has waived this issue on appeal. Tenn. R. App. P. 3(e) a nd 36(a) ; State v. Walker , 910 S.W.2d 381, 386 ( Tenn. 199 5). Even if we we re to con sider thisissue, we conclude that it lacks merit . At t he end of the his cl osin g argumen t, th e pros ecuto r stat ed the follo wing: His Honor’s going to charg e you that when looking at this proof and deciding guilt
or innocence, y ou must decide, in deciding whether or not there’s reasona ble doubt, is whether or not the mind can rest ea sily

upon the c ertainty

of guilt . Well, I humb ly submit to you that in the face

of all of this proof, that if you decide to turn this man loose and let him walk away , that your minds will never re st easy. Thank y ou.
After thoro ughly revi ewing the prosecutor’s closing argument, we conclude that the prosecutor’s comment about “reasonable doubt” was not improper. The prosecutor based his comment upon the definition of “rea sonable d oubt” fou nd in the ju

ry instr uctions. The trial court gave the jury the f ollo wing instruction regarding reasona ble doubt: “Reasonable doubt is that doubt engendered by an investigation of all the proof in the case and an inability after such investigation to let the mind rest easily as to the certainty

of guilt. . . .” The Defendant did not object to this jury instruction at trial. We conclu de that the prosec utor’s c omment cle arly

conform s to this “reasonable doubt” jury instruction, and the trial court did not abuse its discretionby allowing the prosecutor to ma

ke this comment.
Next, the Defendant contends that the prosecutor improper ly in formed th e jury that it did not
m atter wheth er the D efenda nt com mitt ed the murde r, as l ong as t he Defe ndant was “s itti ng i n th e car.” T he prose cutor ma

de the fo llowing s tatement in his closing arg

ument: Any doubt in anybody ’s mind, I submit to y ou, but that Deborah Graham was involved in this murder? Any doubt? It’s uncontradicted. She told h er bo yfriend Marty Giovi of her involvement in this murder. It’s uncontradicted that she came up here to Tennessee and went back in that white Buick. And it’s uncontradicted that this man came

withher. Andthere was no other explanation that’s come from that witness stand as to why

he was with her. And the on ly r easonab le explana

tion could be it was to come up here and take care of Aaron Smith. And it didn’t matter if he
was in there and pulled the trigger, it didn’t matter if he was si tting out in the car. But he sure as heck wasn’t in Gatlinburg. There’s a bsolutely no proof on

this stand coming in here and telling y ou he was ever in Gatlinburg. . . .

We conclude that the p ro secutor’s comment in this instance was not improper. The prosecutor argued that the Defendant was guilty of first de gree murder, whether he “pulled the trigger” or was “sitting out in the car.” Indeed, such an argument is consistent with the State’s theory that the-30-

Defendant

conspired with Denice Smith and Deborah Graham t o kill the victim becau se the victim obtained custody

of his chi ldren. Th

e State’ s theory was that the D efenda nt was cr iminally responsi ble as a party to first de gree murder if the murder was committed by the Def endant’s own conduct, by the conduct of a nother for which the Defendant was criminally re sponsible, or by both. The trial court gave extensive instructions regar ding “criminal responsibility.” We conclude that the prosecutor’s comment was consistent with the trial court’s jury instructions. Accordingly , we conclude that the trial court did not abus e its discreti on by allowing the prosecutor to ma

ke this comment. V. Sufficiency of the Evidence

The Defendant co ntend s that the trial court erred when it refused to g rant his request for a judgment of a cquittal be cause the evidence was insufficient to sustain a conviction. When an accused chall enge s the suff iciency of the evidence, an appellate cou rt’s standard of r

eview is whether, after consideringthe evidence in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime bey ond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. V irginia , 443 U.S. 307, 324 ( 1979); State v. Smith , 24 S.W.3d 274, 278 (Tenn. 2000). This rule applies to fin dings of guilt based upon direct evidence , circumstantial evidence, or a comb ination of both dire ct and ci

rcumstan ti al evidence. State v. Pe nderg rass , 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). In determining the

sufficiency

of the evidence, this Court should not re-weigh or re-eva luate the evidence. Statev. Buggs , 995 S.W.2d 10 2, 105 (Te nn. 1999) ; State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this Court substitute its inferencesfor those drawn by the trier of fact

from the evidence. Buggs , 995 S.W.2d a t 105; Liak

as v. State , 286 S.W.2d 856, 859 (Tenn. 1956). Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well as all factual issues raised by the evidence are

resolved by the trie

r of fact. Liakas , 286 S.W.2d at 85 9. This Court must afford the State of Tennessee the stronge st legitimate view of the evidence contained in the record, aswell as all reasonable inferences which may be drawn from the evidence. State v. Evans , 838 S.W.2d 18 5, 191 (Te nn. 1992) . Beca

use a ver dict of g uilt aga inst
a defendant removes the presumption of innoce nce and raises a presumpt ion of gu ilt, the convicted criminal defendant bears the burden of showing that the evidence was legall y in sufficie

nt to sustain a guilty ve

rdict. Id.

Sufficient evidenc e was pr

esented in this case fo

r a ratio nal jury

to convict the Defendant of first degree murder pursuant to Tenne ssee Code Annotated section 3 9-13-20 2. That code section states: “First degree murder is: (1) A premeditated and intentional killing of another; (2) A killing of another committed in the perpetration of or attempt to perpe trate an y f irst degree murder, act of

. . . robbery, bur

glary , theft, kidnapping . . . .” Tenn. Code Ann. 39-13-202. The evidence pre sented, while primarily circ

umstantial, was sufficient for this conviction.

Th e two sisters, Denice Smith and Deborah Graham, were heard to say

that they wanted Denice Smith’s husband killed. Deborah Graham requested that her boy friendkill Denice Smith’s-31-

husban d, and Denice Smith inquired about finding someone to kill the victim for her. Denice Smith’s husband t hen g ot custody of their childre n, and she fled with the children to Florida whereuponshe met

with, among others, Deborah Graham a nd the Defendant in the presence of he r children. Britt any

Sm ith, Denice Smith’s daughter, identified the Defendant in cour t as the man present at this mee

ting and describ ed the De

fendant ’s ta

ttoos. A shor t tim e after the me eting, DeborahGraham and theDefendant left in a rental car for a few day s. While driving this rental car
on the day

of the mur

der, th e Defenda nt was stopped and cited for speeding in Tennessee. When DeborahGraham a

nd the Defendant

returne d to Florida, Brittany Smith heard the Defendant say that “we’vekilled someone.” The Defendant pawned jewe lry at a pawn shop that wa s later i dentified to be jewelry

taken from the victim’s h ome. When q uestione d by

police a bout his tri

p in the rental
car with Deborah Graham, the Defendant state d that the couple went to Detroit, but according to the mile age on the rental car, such a trip was impossible. However, the mileage on the rental ca r was consistent wi th a round trip to the victim’s h ome and ba

ck to Flor

ida. We co nclude th at this circumstantial evidence is sufficient to convict the Defenda nt of first degree murder.
VI. Trial C ourt’s Ins tructio ns
The Defendant contends that the trial court erre d when it instructed the jury by : (1) giving the jury a flig

ht instruction; (2) instructing the jury on the criminal responsibility of another; a nd (3) improperly stating “if [the Defendant] had been proved guilty say so.” A. Flight Instruction

The Defendan t contends that the trial court erred when it gave a jury instruction on flig ht because there was no evidence o f fligh t, rathe r “the evidence

was that [th

e Defe ndant] was present in Tennessee and

removed himself from the State of Tennessee by returning to Miami, Florida where he lived. At a later point

in time, [the Defendant] removedhimself from Miami to New York, where he had previously lived.” The Defendant in his brief makes no citations to the record and the issue is, theref ore, wa ived. Te nn. R. Crim. P. 10(b); see also Tenn. R. App. P. 27(a)(7). However, even had the Defendant not waived this issue, it is without merit.

The tria l court ins tructed

the jury that:

The flight of a

person a ccused o f a crime

is a circumstance which, when considered withall the facts of the case, may justify an inference of guilt. Flight is the voluntary withdrawal of oneself for thepurpose of evading arrest or pr osecution for the c

rime charged. Whether the evidence presented proves beyond a re asonable doubt that the defendant fled is a question for

your det erminati on. The la

w makes no precis e distinction a s to the manner or method of flight. I t may be open or it may

be a hurriedor concealed departure or it may be a concealmen t within the jurisdiction. However, it takes both a leaving thescene of the difficulty and a subsequent hiding out, evasion or concealment in the c ommun ity or a leaving of the community for parts unk now n t o co nst it ut e fl igh t. If flight is proved, the fact of flight alone does not-32-

allow you to find tha

t the def endant isguilty

of the cr ime alleg ed. Howe

ver, sin c e flight by a defe ndant may be c aused by a c onsciousness of guilt, you may consider the fact of flight if fl ightis so proven together with all of the other evidence when you decide t he guilt or innoce

nce of th e defenda nt. On the

other ha nd, an en tirely innocent person may take

flight and such flightmay be explained by proof offered
or by the facts and circumstances of the case. Whether there w as flight by the defenda nt, the reasons for it and the weight to be given to it arequestionsfor you to determine.

This instruction is taken verbatim fro m the Tennessee Pattern Jury I nstructions. See

7 Tenn. Practice, Tenn. Pattern Jur y I nst.–Crimin al 42.18 ( 5th ed. 20 00). This p attern ju ry instructi on is a correct statement of the applicable law and has been pre viously cited with approva l by our cour t. See , e.g. , State v. Kendricks , 947 S.W.2d 875, 8 85-86 (T enn. Crim. App. 1996). In order for a trial court to cha rge the jury

on flight as an inference of g uilt, there must be sufficient evidence to support such instruction. There is sufficient evidence to support a jury charge on flight

where there is proof of “both a leaving the scene of the diff iculty and a subseque

nt hiding out, evasion, or concealment in the community, or leaving the community for parts unknown.” State v. Burns , 979 S.W.2d 279, 289-90 (Tenn . 1998 ) (quo ting State v. Payton , 782 S.W.2d 490, 498 ( Tenn. Crim. App. 198 9)); State
v. Franks , No. W2003-0003-CCA-R3-CD, 2003 WL 22351024 (Tenn. Crim. App., at Jackson, Oct. 14, 2003), perm. app. filed (Nov. 13, 2003).

In the case under submission, there is sufficient ev idence fo r the trial court to instruct on flight. LaShawn Tay

lor, the mother of the Defendant’s son and long-time g irlfriend, testifie d that, after she and the Defendant were stopped by the police and

the Defendant spokewith the police, he
came to her work place and got her car. Tay lor further stated that, at the end of her work day , the Defendant

picked her up and took her to her mother’s house. Taylor testified that the Defendant left her at her mother’s house and said he would be “rig ht back,” but he nev er retu rned. Th e next time she saw the Defendant was the day of trial, but

she had spoken with him and told him the police were looking for him. F

rom this te stimony , it is c lear that there was proof that the Defe ndant left the
scene of his “diffic ulty ” and did not return, even though he knew that the police were looking for him. We conclude this evidence was more than sufficient to support the flight instruction.

B. Crim inal Respons ibility of Ano ther Inst ruction

The Defendant also contends that the trial court erred when it instructed the jury on criminal responsi bility of another

because “there was simply

no evidence to show that [the Defendant] was involved in the cr

ime in any

way .” The De

fendant again makes no citations to the record and,
ac co rd in gl y, the issue is waived. Tenn. R. Crim. P. 10 (b); see al so Tenn. R. App. P. 27(a)(7). However, even had the Defe ndant not waived this issue, it is without merit.

Th e t ri al co ur t i ns tr uc te d t he ju ry:-33- The defenda

nt is crimin ally

responsi bl e as a pa

rty to the off

ense of F irst Degree Murder if the offense was committed by the defendant’s own conduct, by the conduct of another for which the defendant is criminally responsible o r b y b oth. Each party to the offe

nse may be

charged with the commission of the offense. The defendant is criminally responsible fo r an offen se committed by the conduct of another if acting with the intent to pr omote or a ssist the c ommission of the offe nse or to benefit in the proceeds or results of the of

fense the defendant solic its, directs, aids or attempts to aid another person to commit the offense.

Before you find the defe ndant guilty

of being criminally r

esponsibl e for sa

id offense committed by

t he conduct of another, you must find that all the essential elements of said offense have been prove n by t he State bey ond a rea sonable d

oubt.

This instruction accords with the law of thi s state. Tenn. Code Ann. §§ 39-11-401, -402 (2003). Criminal responsi

bility is not a separat e crime. State v. Lemacks , 996 S.W.2d 166, 170 (Tenn. 1999). “It is solely

a theory by

which the State may prove the defendant’s guilt of the allege d offense,

. . . basedupon the conduct of another person.” Id. To be cr iminally responsi ble for th e acts of another, the de fendan t mus t “‘in some w ay associ ate hi mself with the ve nture , act w ith k nowle dge that an offense is to be committed, and share in the criminal intent of the principle in th e first degree.’” State v. Maxey , 898 S .W.2 d 755, 757 (T enn. C rim. A pp. 19 94) (q uoti ng Hembree v. State , 546 S.W.2d 235, 2 39 (Tenn . Crim. App. 1976 )); see State v. Phillips , 76 S.W.3d 1, 9 (Tenn. Crim. App. 1999).

In the case under

submission, it is clear that the evidence was sufficient for the trial court to instruct the jury on crimina

l respons ibil ity. While i t was unkn own who f atally shot the vi ctim because ther e were no eyewitnesse s to the crime, the circumstantial evidence showed that the Defendant

actively par

ticipated in the crime. First, the Defendant drove De borah Graha

m in th e vehicle while in Tennessee, as evidenced by his speeding ticket. Second, Brittany Smith heard the Defendant

say , “We’ve

killed some one.” Th

is evidence was sufficient to warrant a n instruction on criminal responsibility. C. Instruction on Return of Jury’s Verdict

The Defendant also contends that the trial court er red whe n it instructed the jury on the r eturn of the jur y’ s verdic t. In i

ts entire ty, the Defe

ndant’s b rief sta tes: [The Defend ant] insists t

hat the tr ial cour t erred in giving an instruction as to what to do if the jury found him g

uilty, but not statingin that same instruction what to do if the jury found him not guilty . “It is the duty of the trial court to give a comple te charge of the law applica

ble to the facts of the case.”7 We ass ume th at the D efend ant is refer ring to the victim’s m other Cleta S mith as the re is no evide nce o f a

“Cletu s Smith ” pre sent at trial.
-34- The Defendant again makes no citations to the recordand, accordingly , the issue is waived. Tenn. R. Crim. P. 10(

b); see also Tenn. R. App. P. 27(a)(7). However, even had the Defendant not waived this issue, it is without merit.

The trial court instructed the jury as follows: “If [the Defendant] has been proved guilty , say so, keeping constantly

in mind that it would violate your sworn duty to base any

verdict on anything but the evidence a

nd the law

in this par

ticular c ase.” T

he trial c ourt also

instructed the jury

that:

As I told y ou before at the very beginning of this case, it

isn’t a question of whether the State of Tennessee wins or loses a case, bec ause ladies and gentlemen, our state al wa ys wins when jus tic e is done r egard less of wh

ether the verdict of the Jury is guilty or not.

We conclude

that, from these instructions, the jury wa s clearly a ware of its duty a

nd was in no way
encoura ged by the trial court’s instructi ons to return a guilty verdict. Therefore, we conc lude that this issue i s without me

rit.
VI. Witnesses in Courtroom

The Defendant

contends that the trial court erred when it allowe d “Cletus Sm

ith 7 and Robert Caldwell to remain in the courtroom during the trial.” However , the Defendant does not provide any citations to the record or to any legal authority

to supporthis contention. Therefore, we find that he waivedthis issue o n appea l. Tenn. R. Cr

im. P. 10(b) ; see also Tenn. R. App. P. 27(a)(7). Further, this issu e is simpl y without merit. Cleta Smith was the victim’s mother, and the prosec ution designated

her as a party for the victim. Tennessee R ule of Evidence 615, which allows for the exclusion of witnes se s at trial, clear ly states that “this rule does not authorize exclusion of . . . a person de signate d by

counsel f or a par ty that is not a

natural person.” The othe

r witnessto which the Defendant objects is Robert Caldwell, the investigating off i cer. Caldwell was excluded from trial, but the Defendant objects to his being allowed to sit at the prosecutor’s table during voir dire when he was “not the prosecutor.” The Defendant has cited no legal authority for his position and it is simply without merit.

Ac co rd in gl y, we findthat ther e was no r

eversib le error in the judgments of the trial court and the trial court is, therefore, AFF IRMED.

___________________________________

ROBERT W. WEDEMEYER, JUDGE