### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE June 28, 200 5 S es sio n

STATE OF TENNESS EE v . WI LLI AM A. HAWKI NS

Direc t Appeal from the Cr im inal Cou rt for Sulli van Coun ty

No. S46,562 P hylli s H. Miller, Judge

No. E2004-01761-CC A-R3- CD - F iled Novem ber 4, 2005

The a ppellant, Will iam A. Ha wk i ns, was convic ted of fir st deg ree preme ditated murder , and he

rec eived a

sentenc e of life imprisonment. On appea l, the appellant c halleng es the sufficie ncy of the evidenc e, the tria l court’s e videntiary ruling s, and the jury instructions. Following our re view, we aff irm the judgme nt of the trial court but r emand for entry of a corr ecte d judgmen t t o re fl ec t the

c or re c t date of

the jud g me nt.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Cr im ina l C our t A ffirm e d and C as e Re m ande d forEnt r y o f a C or r e c te d Judg m e nt

.

N OR MA M C G EE O G LE , J ., delivere d the opinion of the court, in which J A M ES C UR WO OD W I TT , J R

. and R OB E R T W. W EDEMEYER , J J ., joined.

Ste ph e n M . Wa lla c e , B lou ntv ill e , T e nn e sse e , f or the app e lla nt, Willi a m A . H a wkins

.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; Kathy D. As lin g e r, As sis ta nt A tto rn e y Ge ne ra l; H. Gr e e le y

We ll s , Jr

. , D is tric t A tt o r n e y G e n e r a l; a n d B arr y

P. St a u b u s a n d Wi ll ia m B

. H arpe r, Assistant District Attorney s Gene ral, for the appe llee, State of Te nnessee

.

OP IN ION

I. F AC TS State’ s P roof

On J une 26, 2002, the a

ppellant was indicte d for the first deg ree preme ditated m urder of Roy Vitattoe. At trial, Will iam Vittatoe, the victim’s fa ther, testified tha t his son was thirty -nine y ear s old at the time of his death. Vittatoe sta ted that on April 21, 2002, he lived on De vault Bridge Road,

an d th e v ic ti m li v e d in a c a mp e r a t h is h o u s e

. V it tato e b e li e v e d th a t th e v ic ti m a n d th e appellant

we re frie nd s.-2-

On Friday , April 19, 2002, betwee n 7:00 a .m. a nd 8:00 a .m., the victim arrived at Vittatoe’s h o u s e. At ap p ro x i m at el y 4 : 0 0 p

. m

. , t h e v i ct i m l ef twi t h h i s b ro t h er , Bi l l y

. T h e f o l l o wi n g m o rn i n g, at appr ox imately

7:00 a.m., the victim returne d to Vittatoe’s house. He had be en drinking and wa s suffe ring from a ha ng over. Thevictim went to his camper to sle ep. L ater that day , Vittatoe woke the vic tim

a nddr ov e him

to E ve ly n Arthu r Ne il’ s h ou se . T he y arrive d a t app ro xima te ly 1:0 0 p .m. The victim was still ill. The victim told him that Neil would take him home l ater , so Vittatoe left for wor k. Vittatoe neve r saw the victim alive ag ain.

Vittatoe said the victim had the campe r for about five y ear s. Vittatoe had ne ver se en a g un in the campe r and ha d never known the victim to own or use a g un.

Geor g e W arr en, J r., t estified that he had known t he victim over twenty y ear s and had be en to his camper nume rous times. Warren sa id he had never seen a g un at the victim’s ca mper a nd had

never known the victim to possess a g un.

Ev e ly n A rthu r N e il t e sti fi e d th a t sh e a ndthe vic tim we re frie nd s. On Ap ri l 20 , 2 00 2, Ne il called V ittatoe an d as k ed him to bring the vic tim to her house to top some trees in he r fr ont y ard. At app ro xima te ly

lun c h ti me , V itt a toe br ou g ht the vic tim to N e il’ s h ou se . N e il s a id tha t th e vic tim

wa s si c k w he n h e arrive d be c a us e he ha d be e n dri nk ing the pr e vio us nig ht. Th e vic tim tr ie d to he lp Neil with the tree work but wa s unable to do so bec ause of his condition. Neil took the victim back to his father’ s house later

that day at ar ound 9:00 p.m. or 9:20 p.m. Neil maintained that she did not know any one name d Ella Thac ker. She de nied that Thac ker c ame by her house on April 20, 2002, while the victim was ther e.
Chasity L ee G entry

testified that she and her husband, Mark Gentry , wer e friends with the

app e lla nt. Mr s. Ge ntry

sa id o n Sa tur da y , A pr il 2 0, 20 02 , s he pic ke d u p th e app e lla nt at hi s h ou se

s o h e c o u ldh e lp M r

. G e n try f ix th e G e n try s ’ tr a il e r

. T h e tr a il e r w a s lo c a te d a t M r s

. Gentry ’s mother’s house. T he appe llant was we aring blue jean shorts, a white shirt, a nd tennis shoes. When the appe llant first g ot into the vehicle, he told Mrs. Ge ntry that he had ta

ken some pil ls. On the wa y to the trailer, th ey s t o p p ed at a g as station, and the a ppellant purc hased a

six -pac k of bee r. They

arrived at the r esidenc e shortly afte r 5:00 p.m. Mr. Gentry was a lrea dy

there , and the appellant helped him work on the Gentry s’ trailer . Whil e the a ppellant was w orking on the trailer , Mrs. Gentry

n o t i ce d t h at t h e a p p el l an th ad a c u to n t h e l o we r p ar to f h i s l eg.

At the same time the a

ppellant and Mr. G entry

wer e wor king on the trailer, other pe ople wer e the re , pre pa

ri ng a ba rb e c ue . T he app e lla nt ate a nddr a nk be e r. Th e Ge ntry s to ok

the app e lla nt h ome

a t app ro xima te ly 9:3 0 p. m. or 10 :00 p. m. be c a us e he wa s g e tti ng lou d a ndro wd y , a ndhe ha d b e c ome i n t o x i c a t e d

. E n r o u t e , t h e ap p e l l a n ta s k e d t h e G e n t r ys t o t a k e h i m t o t h e v i c t i m ’ s r e s i d e n c e

. In i t i a l l y, the Gentry s ref

used, and the a

ppellant bec ame a ng ry , demanding to be taken to the vic tim’s residenc e. Ultimately
, Mr. Gentry complied. When the y passed a churc h on Devault Bridg e Road, the appe llant showed them the victim’s fa ther’s house and told t h em t o t u rn t h e van a round. The appellant then g ot out in front of the victim’s campe r. The camper was very dark e x cept f

or the lig ht from a te levision set. The appe llant instructed the Ge ntry s to wait at the nea rby churc h.-3-

After approximately

five minutes, the appe llant, who was shirtless and ou t o f b r eath, r eturne d to the Gentry s’ van. Mrs. G entry noticed that the a

ppel l an t h ad blood on his face , and, whe n she

a sk e d h im a

bo ut i t, h e tol d h e r tha t he a ndthe vic tim ha d g ott e n into a fi g ht. Th e app e lla nt a lso tol d he r tha t he ha d le ft

the vic tim

fo r d e a d. He de sc ri be d the sc e ne a s “ g ru e so me a s he ll, ” a nd he sa id that he wa s g lad she and Mr. Gentry did not see it. She said the appe llant was diffe rent whe n he
returne d to the van, say ing he s eeme d very ang ry and kept c hang ing topics during his c onversa tion. The a ppellant t old the Gentry s that the victim and his brother “ had done some thing to Apr il [ J ackson Boohe r] in front of her c hildren.”

At the appe llant’s direc tion, the Gentry s drove him to a gas station in J ohnson City . At the g as station, Mrs. Gentry

g ot out of the vehicle to u s e t he re stroom. She saw the a ppellant throw something in a

dumpster and notice d that he wa s no longe r wea ring his soc ks or shoes. As they wer e leaving the g as station, she saw tha t the appellant ha d blood on his arm and all over his shorts.

The a ppellant then aske d the Gentry s to take him to the hous e of his si ster, JudyGar rett. The Ge ntry s le ft

the app e lla nt at G arr e tt’ s c los e to m idn ig ht. Af te r le a vin g the app e lla nt, Mr . a ndMr s. Gentry went to L arry

Swift’s house wher e they wer e living te mporarily

while the wor

k was be ing completed on their

trailer. She said the appellant kne w wher e they lived and knew their telephone

n u m b e r

. N e i t h e r

s h e n o r h e r h u s b a n d h a d a n y c o n t a c t w i t h t h e ap p e l l a n tt h e f o l l o w i n g d a y, S u n d a y, but Mr. Gentry

talked to him by

telephone o n M o n d ay . Mrs. Gentry rec og nized the appellant’s voice, but she w as unable to hear what he w as say ing. Mr s. Gentry said that the appe llant called

sever al times that day . She knew the a ppellant was the caller

beca use the Swift’s telephone was

e qu ipp e d w ith a

c a lle r i de nti fi c a tio n d e vic e . Sh e re c og nize d the inc omi ng nu mbe r as the app e lla nt’ s.

The a ppellant ca lled Mr. Gentry ag ain on Tuesday
, April 23, 2002. After the ca ll, Mr. and Mrs. Gentry

went to April Jackson Boohe r’s house to pick up the appellant. Mrs. G entry said that Boohe r was a friend of the appellant’ s, explaining that she believed that Boohe r was the “April” that the appe llant had bee n talking a bout on Saturday

night.

Whe n th e Ge ntry s a

rrive d a t B oo he r’ s r e sid e nc e , the a pp ella nt a sk e d th e m to take him to Gar rett’s house so he could g et the shorts he ha d left there

. During the drive, the appellant told the Gentry s that he thoug ht they had bee n talking to police, and he believed that “he was g oing to ha ve to come af

ter us with a g un.” The appellant instructed the Gentry s that if they wer e questioned by the pol ice, they should say that on the nig ht the victim died, they picked the a

ppellant up to work on the tr a ile r, the n the y

we nt d ow n b y

the ri ve r t o s mok e mari

jua na be fo re takin g the app e lla nt t o h is sister’s house.

When they

arrived at Ga

rre tt’s, the appellant w ent inside to g et his shorts. The appe llant looked for te n to fifteen minutes, but he c ould not find t h em. At that point, the Gentry s took the appellant ba ck to B ooher’ s residenc e.-4-

J u d y G arr e t t , t h e ap p e l l a n t ’ s s i s t e r , t e s t i f i e d t h a to n A p r i l 2 1
, 2 0 0 2
, s h e l i v e d i n B l u f f C i t y. At app rox imate ly

1:0 0 a .m. on Ap ri l 21 , 2 00 2, the app e lla nt c a lle d h e r anda sk e d p e rm iss ion to sp e nd the nig ht a t he r ho us e

. He arrive d a fe w m inu te s late r a c c omp a nie d b y the Ge ntry s. Sho rt ly afte r the a ppellant’s ar

rival, Ga rre tt noticed that the appe llant was wearing only shorts, and his fac e was pe ppere d with tinyspecks of blood. Garr ett asked the appellant what h ad happene d, and he responde d with a blank look on his fac e which scare d Gar rett. Gar rett believe d that something w as wrong with the appellant, possiblythat he wa s intox icated. G arr ett left the a ppellant alone to showe r and slee p.

Gar ret t fo und the appe llant the next m orning sleeping on the ca rpet be side Gar

rett’s daug hter’s bed in w hich he was supposed to sle ep. The room had been “wrec k ed

. ” W h en the appellant woke , he did not rec all how he ha d g otten to Garr ett’s house. Ga rr et t n o t i ced tha t the appellant ha d scra tches on his leg s near his ankle. The a

ppellant s ai d t hat he ha d been sc ratc hed wh ile wo rking on the Ge ntry s’ tr a ile r. Th e app e lla nt a sk e d G arr e tt whe re his sh orts w e re . G arr e tt did not know, and they sear ched unsucce ssfully for the a ppellant’s missing shorts. The appellant lef t sh ortly the re a ft e r. Ga

rr e tt l a te r f

ou ndthe app e lla nt’ s sh orts h idd e n in a c los e t ne xt to the ba thr oo m. She noticed that t h e s h o rt s were stained with tiny specks of

blood. She said she initiallyput the sh orts w ith he r d ir ty

c lothe s, bu t “ [a]f

te r sh e he ard the ne ws Mo nd a y ,” sh e pu t th e sh orts i n a pla sti c b a g a n d h idth e m i n a

c h e s t i n h e r

b e d r o o m. T h e ap p e ll a n t c a ll e d G arr e tt s e v e r a l t im e s o v e r

th e n e xt few day s, inquiring about the shorts. Gar rett lied to the appellant a nd told him t hat she did not have them.

On April 23, 2002, Ga rre tt put the shorts in a duffel bag and took the bag to the house of he r sister, Ruby Shores, i n Bristol. Whil e at Shores’ house, Gar rett called the appellant and told him that she would bring him the shorts. Howeve r, Ga rre t and Shores put the shorts in a trunk a t a neig hbor’s house instead.

Gar rett and the appellant ha d sever al conve rsations that day reg arding the location of the shorts. Gar

rett repeate dly asked the appellant why he wa nted the shorts if he ha d not done anything

wr on g . T he app e lla nt e ve ntu a lly be c a me a ng ry , sa

rc a sti c a lly

te lli ng he r tha t he ha d k ill e d th e vic tim beca use he w as bore d.

At some point, Ga

rre tt and Shores left Shores’ house and dr ove to B ooher’ s residenc e. Upon

arriving ther e, they

lear ned that the a

ppellant had be en arreste d. Gar rett and Shores then re trieved the du ff e l bag c on ta ini ng the app e lla nt’ s shorts, a nd Ga rr e tt pla c e d the ba g c on ta ini ng the sh orts i n Shores’ ve hicle. Ga

rre tt acknowledg ed that she took a g uitar belong ing to the vic tim’s family to the sheriff ’s offic e af

ter the a ppellant was a

rre sted.

Rub y Sho re s, the app e lla nt’ s sis te r, te sti fi e d that on Ap ri l 24
, 20 02
, Ga rr e tt c a me to h e r h ou se in Bristol. Gar

rett wa s panicky , and she ha d with her a duffe l bag

. Shores and Garre tt put the bag i n a t ru n k at a neig hbor’s house. While Gar rett wa s talking w ith the appellant on the tele phone, Shores and Ga

rre tt drove to Boohe r’s house w here they l ea rn ed t h e appe llant was being arr ested. They then re trieved the duffle bag
, placing it in Shores’ vehicle bef ore g oing to spe ak with police.-5-

Pol ic e de te c tiv e s a c c omp a nie d Sh or e s to he r ve hic le , w hic h w a s lo c a te d a t he r h ou se , to c on fi sc a te the duffe l bag

.

Detec tive Bobby

Russell testified that on April 24, 2002, he met with J udy Gar rett and Ruby Shores. Subsequently
, Detec tive Russell went to S hores’ house whe re he collecte d from the ba ck of Sho re s’ ve hic le a

du ff e l ba g c on ta ini ng a

pa ir of de nim sh orts.

Se rg e a nt Je ff Park e r wi th the Sul liv a n Cou nty She ri ff ’s De pa rt me nt t e sti fi e d th a t a t 9: 05 a .m. on April 21, 2002, he was dispatched to 3593 De vault Bridge Road. At that location, he f ound the dece ased victim ly ing on ply wood outside a truc k campe r. A lar g e puddle of blood surrounded the victim’s head. I nitially
, o ff i ce rs b el ieved that the injurie s were possiblyattributable to a g unshot wound to the hea d. Whil e examining the sc ene, Serg eant Parker noticed that the ca mper’s w indow had bee n broken. O ffice rs looked inside the window but did not open the door t o or go i nside the campe r.

Detec tive Reese Christian testified tha t at 10:00 a.m. on April 21, 2002, he ar rived a t the crime sc ene. Upon his arr ival, he observed a small, white camper approxi mately fiftee n fee t long sitti ng on blocks. The campe r wa s located just off D evault B ridg e Road down a n embankment. The

c a mpe r w a s lo c a te d b e tw e e n 1 00 a nd15 0 f e e t f ro m th e vic tim ’s fathe r’ s h ou se a ndwa s a bo ut f if ty fee t off the r oadwa y . Detec tive Christian said that the campe r wa s approximately 700 fee t from Muddy Creek Missionary Ba

ptist Church. There was a field betwe en the c hurch a nd the hig hway

are a.

Detec tive Christian saw the victim’s body ly ing about three or four fee t f rom the campe r on

a pie c e of ply wo odor pr e sse d bo ard
, a nd tw o ov e rtur ne d c ha ir s we re ne xt t o the bo dy

. Th e vic tim was ly ing on his ba ck with his arms down by his side. Detec tive Christian noticed that there wer e massive injuries to the victim’s head. T here was a signific ant amount of blood ar ound the hea d and the t op of t he body

. Additionally
, there was blood on the vi ctim’s pants and socks. The victim was missing a couple of teeth which wer e found on the ply wood, next to hi s body . Detec tive Christian said he found blood on the ba ck of the campe r fr om the top to the bottom, on t he g round ar ound the victim’s body
, and on a small g rill. He also found bloody shoe prints on the ply wo o d

. De t ec t i ve Christian went inside the ca mper a nd noticed that the portable television wa s still on.

Detec tive Christian sa id a hewn tree limb mea suring about fifty -two inches long was found in the woods about ninety -fi v e fe et fr o m the victim’s body . Fr om the midpoint t o the end of the limb, the limb wa s mark e d wi th blo od
, ha ir , a ndbr a in m a tte r. B e lie vin g the vic tim ha d b e e n s ho t, the investig ators sea

rche d the ar ea f

or a g un, but no gun w as found.

D e t e c t i v e C h r i s t i a n t e s t i f i e d t h a ta tap p r o x i m a t e l y l u n c h t i m e o n A p r i l 2 2
, 2 0 0 2
, t w o d a ys prior to the appe llant’s arr est, he intervie wed the a ppellant. Dete ctive Christian noted that during the interview , the appe llant was coope rative, f riendly , coher ent, and was not under the influenc e of an intox icant. Dur ing the interview, the appellant told Dete ctive Christian that he a nd the victim had been f riends s i n ce ch i l dhood. He a cknowledg ed that he a nd the victim had foug ht in the past but-6-

said they had re mained friends. The appellant told De tective Christian tha t in January or F ebrua

ry 2002, he saw the victim at Boohe r’s house. A fter sta y i n g and drinking for a while, the a

ppellant went home, a nd, ten minutes later, one of B ooher’ s daug hters ca lled the appel l an t s ay ing tha t the vic tim wa s try ing to “ me ss w ith ” B oo he r. Th e app e lla nt c a lle d th e Bristol P oli c e De pa rt me nt. Pol ic e re sp on de d to the c a ll an d ar re ste d th e vic tim

fo r a n o uts ta nd ing c hil d s up po rt wa rr a nt. Sho rt ly afte r the victim was inca

rce rate d, the appe llant was ar rested and jailed for

driving under the influence (DUI ). The a

ppellant said t hat t he last time he saw the vi ctim was during their mutual incar cer ation. The a ppellant re called tha t he was rele ased from jail around March 29, 2002, and that the victim had been r elea sed about a

month prior to the appellant’ s relea se.

The a ppellant told Detec tive Christian that the victim had a problem with al co h o l
, and he b e c a m e o b n o x i o u s a n d m e a n w h e n h e d r a n k

. A s a r e s u l t , t h e v i c t i m m a d e m a n y p e o p l e a n g r y. Spe c if ic a lly , t he app ell a nt r e c a lle d th a t th e vic tim ha d p ro ble ms w ith Smit ty or De nn is Sm ith beca use Smith di d not like the victim coming to his g irlfriend’ s house. The a ppellant said that Mic ha e l B y e rs ha d a

“ ve nd e tta ” a g a ins t th e vic tim “ be c a us e of

a fi g ht the y

ha d b e fo re a t B oo sie Creek f or punching Kim Neil, that is Michael B y ers’ g irlfriend.” The a ppellant also told Detec tive Chris ti a n th a t th e Ra ms e y b r o th e r s w e r e a n g r y

w ith th e v ic ti m. T h e ap p e ll a n t c o n c lu d e d the int e rv ie w b y

sa y ing that he lov e d the vic tim lik e a br oth e r, a nd he ha d n o r e a so n to ha rm the vic tim

. Af te r the c o n c l u s i o n o f

t h e i n t e r v i e w , D e t e c t i v e C h r i s t i a n r e d u c e d t h e ap p e l l a n t ’ s s t a t e m e n tto writing , and the a

ppellant sig ned it. Detec tive Christian said that, during the interview, he noticed that the appe llant had a c ut or a scr atch on his rig ht shin and a scratch or cut on the t op of his rig ht hand. The appellant e x plained that he injure d his leg by falling out of a truc k or by stepping from
a truc k into a mobile home.

Detec tive Christian interviewed the appellant a g ain on April 24, 2002, shortly af t er the appellant ha d b ee n ar re s t ed. He said the appe llant had bee n drinking but did not appear to be intox icated or

under t h e influence of dr ug s. Detec tive Christian stated that prior to the intervie w, he advise d the appe llant of his Mira nda rig hts. The a ppellant executed a

waiver of his rig hts, and the interview proce eded.

During the April 24, 2002, interview, the appellant ag ain t old Detec tive Christian about an inc ide nt tha t oc c ur

re d in F e br

ua ry 20 02 wh e n the vic tim wa s at B oo he r’ s a pa rt me nt, “ me ssi ng wi th or bothering ” her . The a

ppellant told the victim to leave and when he refused to do so, the appe llant

c a lle d 9 11 . A s a

re su lt o f the c a ll, the vi cti m was tak e n in to c us tod y . T he vic tim wa s u lti ma te ly incar cer ated because he owed back c hild support. The appe llant and the victim wer e inca rce rate d

a t th e sa me tim e , w ith the vic tim g a ini ng e arl ie r r e le a se . T he app e llant l e arn e d th a t th e vic tim tol d some fellow inmates tha t the appellant wa s a “snitch,” and he w ould ge t re v en g e on the a ppellant for c alling the authorities on him.

The a ppellant told Detec tive Christian that after he wa s relea sed fro m jail, Booher had informed him that once while she was on medication, the victim’s brother came to her a partment a nd did something to her . Additionally , Boohe r’s daug hter t o ld the appellant that she had see n the-7-

vic tim ’s brothe r h a vin g se x with B oo he r. Th e app e lla nt b e c a me up se t w ith the vic tim a ndhis brother f or har assing Boohe r.

Con tin uin g wi th the int e rv ie w, the app e lla nt t oldDe te c tiv e Christ ia n th a t on Sa tur da y , A pr il 20, 2002, the day

of the victim’s death, he had take n about twenty -five X anax pills and consume d

a c a se a nda

ha lf of be e r. Th e app e lla nt m a int a ine d tha t he b e c a me he a vil y int oxic a te d a ndwe nt t o the victim’s campe r. He said when he knocked on the door, the victim beg an ca lling him derog atory names. The victim, armed with a gu n , curse d the appe llant and hit him on the right wrist. The appellant sa id when he sa w the v i ct i m ’s g un, his “brain we nt into overdrive,” and he pic ked up a stick to disarm the victim. The a ppellant vag uely

rec alled hitting the vic tim with t he stick, believing that he hit the victim in the head whe n the victim swung the g un. The a ppel lant claimed that he “kind of blacke d out a nd every thing happene d so fast.” The appellant saw the g un on the g round and p i ck ed i tu p

. T h e a p p el l an tad m i t t ed t h at h e d i d n o t ch ec k o n t h e s t at u s o f t h e v i ct i m b ef o re l ea v i n g. The a ppellant could not re call wha t he did with the stick.

The a ppellant stated that someone had taken him to the victim’s residenc e. When he lef t the residenc e, he told them that he and the victim had gotten int o a scuffle. The appellant e x plained that he did not want to “implicate” in the alterc ation the people w ho had drive n him to the camper

. The appellant told Detec tive Christian that he threw the gun away while he we nt down the road but c ould not remember wher e he thr ew it. He s aid he we nt to his si ster’s house afte r the incident and d i d n o t k n ow that the victim was de ad until the victim’s brother c alled him. The

app e lla nt tol d De te c tiv e Christ ia n tha t he wa s not loo kin g fo r tr ou ble wh e n he we nt to s e e the vic tim

. He a lso tol d D e te c tiv e Christ ia n tha t the vic tim ke pt co min g aro un d with a g un , w a nti ng to kill him

. The a ppellant conc luded the intervie w by say ing tha t he was sorry , that he wished he had neve r g one to see the vic tim, and that he n ev er truste d the victim around B ooher a nd her c hildren. Afte r the interview, the appellant’ s statement was r educe d to writing, and the appellant signe d and initialed

eac h pag e.

Detec tive Christian said that he and other investigators sear ched the crime sc ene the day afte r the sec ond interview, but they never found a g un. De t ective Christian we nt to L arry Swift’s

re sid e nc e on Ap ri l 23 wh e re he ma de ph oto g ra ph s o f the c a lle r i de nti fi c a tio n b ox sh ow ing fo ur c a lls from the a ppellant’s cellular telephone number. Detec tive Christian found a wa lking stick inside the victim’s camper

which wa s simil ar to the tre e li mb rec overe d from the scene

. Detec tive Christian noted t h at at the tim e of the murder the appellant wa s five fe et, eleve n inches or six feet tall and

we ig he d a

bo ut 2 50 to 2 60 po un ds

.

Charles Ha

rdy with the Tenne ssee B ureau of I nvestig ation Crime L aboratory testified that he examined the tre e limb, the appellant’ s shorts, and t wo b o ards of ply wood, all of whic h tested positive for blood. Further analy sis reve aled that the blood contained the victim’s DNA. One board of ply wood also conta ined the DNA of another person. Har dy stated t hat t he appe llant could not be excluded as the minor contr ibutor of that profile.-8-

Dr. Gr etel Stephens, a n ex p er t i n fore nsic patholog y , testified that on April 23, 2002, she perf ormed the autopsy on the victim’s body

. She deter mined that the victim wa s five fee t, six and one-ha lf inches tall and e stimated his weig ht as 170 pounds. The victim’s blood a lcohol content wa s .01%, and his urine tested positive for marijuana. Dr . Stephens determined the cause of de ath to be blunt trauma to the head. The doc tor noted that she ha d examined the tree limb recove red f rom the

scene . Acc ording to Dr. S tephens, the victim sustained “at least si x teen blows with an irreg ular c lub consistent with that tree limb,” including blows to the head, f ace , neck, shoulde rs, upper chest, ba ck, and rig ht wrist, with “a minimum of nine blows to the head[,] face a nd neck.”

Dr. Stephens discovered that the victim had two fra cture s of the lower jaw bones, f

rac tures of the uppe r jaw bone , fra cture s acr oss the face, vertical frac tures of the jaws, and f rac tures involving the che ek bones a nd the nasa l bone. Ther e wa s a fr actur e to the fr ontal skull which was “a depre ssed fr a c tur e that sh ow s it’s kin d of a ra id ap pe ara nc e a lon g it w he re it h a s su nk e n in qu ic kly a nd the se additional fra cture s are extending out f rom it.” The victim a lso had six of his teeth knocke d out and had a “partial separation of the corona l suture . . . meaning that the bra in or the skull’s suture which is supposed to be closed i n a m an o f h i s ag e is ac tually sprung and is open fr om the injuries.” Be cause of the victim’s depr essed f rac ture, Dr . Stephens opined that his head ha d been “ brac ed ag ainst something solid behind him like a solid wa ll or even more likely on the g round beca use then even if he loses consc iousness his h ea d is not going to move marke dly and that ty

pe of blow or repe ated blows c ould be landed in that ly ing dow n position wit h the hea d brac ed on the g round.”

Dr. Stephens sa id the victim also had two injuries to his back, one of which she des cr i bed as a “ prod.” She explained that “instead of the l ong part of the wea pon hitting the skin there it looks as thoug h an end of t he weapon, probably the bi g end from the pattern of t he inj ury , has been used to p ok e him

ha rd .” She sa id that blo w wa s inf lic te d wh ile the vic tim ha d h is b a c k tu rn e d a ndc ou ld have be en for cef

ul enoug h to knock him to the ground. She found a defe nsive wound on the ba ck of the victim’s rig ht wrist. The victim also had a “two slat or two edg e ty pe abr asion, something like the edg e of a

do o r s creen, a luminum door scree n” and ha d suffe red a “chopping blow” to the lef t sh ou lde r w hic h r e su lte d in a dis loc a tio n of the a c ro mio -c la vic ula r j oin t. A c c or din g to D r. Ste ph e ns , the vic tim did no t hav e a ny inj ur ie s con sis te nt w ith a fi stf ig ht w ith a no the r p e rs on . D r. Ste ph e ns sa id she had only

seen injuries of

this magnitude “ from thing s like motor car cra shes, semi cra shes and air c rashe s.”

Defense P roof

Ten-y ear -o l d Diamond B ooher, A pril J ackson B ooher’ s daug hter, testified tha t one nig ht approximately two y ear s prior to tr ial, the appe llant and the victim came to her house. A fter visiting fo r a wh ile , th e app e lla nt l e ft , b ut the vic tim re ma ine d. Di a mon d s a w the vic tim pu t so me pil ls i n her mother ’s drink. Diamond rec alled that afte r her mother consumed some of the drink, she beg an stumbli ng , ultimately

g oing into a be droom to lay down on a bed with D iamond and her sister. The victim came into the bedr oom and started “ jumping” on the m. The “ j u m p i n g” agg rava ted Diamond’s asthma. D iam o n d t h en ca lled her aunt, Eve, to g et the appe llant’s telephone numbe r. After g etting the telephone number, Diamond called the appellant and told him t hat the victim was-9-

jumping on them. At the a ppellant’s re quest, Di am o nd told him t heir a ddress. Subsequently , the police ca me to her house and took the victim awa y

.

Eve Mary Griff in J ackson, April J ackson Booher ’s s ister, t estified that in 2002 she lived on Volunteer Parkwa y near her sister and the appellant. She stated that on one e vening in 2002, she had been to dinner

with her pa

rents. Upon r eturning home, she c hecke d her me ssag es and discove red that Diamond had called her repe atedly

. J ackson r eturne d Diamond’s ca ll, and, soon therea fter, she went to B ooher’ s house. B oo h er wa s i n co h erent and had trouble moving. Police we re a lso at Boohe r’s house, a nd they arr ested the vic tim.

J ackson sa id that she and the a ppellant had been friends for five y ear s, and the a ppellant was also best friends with he r sister. Fr om the time the appellant was rele ased from jail in Marc h 2002
to th e ti me o f th e v ic ti m’ s d e a th
, s h e n e v e r h e ar d th e ap p e ll a n t e xp r e s s a n y a n im o s it y to w ard the victim or threate n to hurt him. At approxi mat ely 4:00 p.m. on Saturday , April 20, 2002, J ackson vis ite d th e app e lla nt at hi s tr a ile r. Th e app e lla nt h a d b e e n d ri nk ing a ndha d ta ke n s ome Clo na

pin pills, and he was pr eparing to g o with the Gentry s to a cookout.

The following morning at appr ox imately 1:30 a.m. or 2:00 a.m., the appellant ca lled J ackson. She had diffic ulty understanding what the appellant wa s say ing. Jackson ac knowledg ed that she ha d taken the a

ppellant to visit t he victim on prior occ asions. She rec al l ed that the victim got a pistol from her in Septe mber or October 2001, but she did not know what he had done with it

. J ac k s on said the appe llant had aske d her to ke ep the g un at her house, but when the victim asked for it, she g ave it to him “bec ause he said he ne eded it.”

Chad Peters with the Sullivan CountySheriff’ s Depa rtment testified that on F ebrua ry 1, 2002, he ar

reste d t h e v i ct i m at 2352 Volunt eer Parkwa y on a child support wa

rra nt. He did not believe tha t the victim was intox icated at the time of his arre st.

E ll a K a te T h a c k e r te s ti f

ie d th a t s h e k n e w th e ap p e ll a n t a n d th e v ic ti m. I n April 2002, Thac ker sa w the victim at “Eve ly n’s house.” During a conversation, the victim told Thacker tha t the appellant ha d “snitched” on him, and he no long er w anted to be f riends with the appe llant.

Joshu a Da rn e ll t e sti fi e d th a t he ha d b e e n in c arc e rate d w ith the app e lla nt a ndthe vic tim in F e br ua ry 20 02

. Du ri ng the ir inc arc e ratio n, the vic tim of fe re d one hu nd re d doll ars to the fi rs t in ma te to inflict phy sical harm on the appellant. The victim made the offe r because of a prior a ltercation be tw e e n h ims e lf

a ndthe app e lla nt. Th e vic tim be lie ve d th a t th e app ell ant was invol ve d in his incar cer ation. Dar nell rec alled that when the vic tim spoke with the appellant, he a cted a s if he and the appe llant were friends; howe ver, be hind the appellant’ s back, the victim behaved a s if they wer e

e ne mie s.

Sc ott Ed wa rdF a in t e sti fi e d th a t he ha d kno wn the app e lla nt fo r y e ars a nd ha d met the vic tim

a few times. Fa in r eca lled that in the fall of 2001, he g ave the victim a ride to the victim’s fa ther’s-10-

ho us e . T he vic tim
, wh o ha d be e n dr inking
, re tr ie ve d a sma ll b lue ste e l pi sto l f ro m hi s f a the r’ s h ou se and shot it once or twic e.

Ma rk Yo rk te stifi ed th at he ha d b e e n in c arc e rate d w ith the vic tim a ndthe app e lla nt i n F e br ua ry 20 02 . During the ir mutua l inc arc e ratio n, the vic tim tol d Y or k th a t he wa s in ja il b e c a us e the appe llant was a “ snitch” and ha d cause d him to be there. The victim also to l d h i m t h at t he

app e lla nt w a s g oin g to p a y wh e n h e g ot o ut o f j a il.

Th e thi rt y -e ig ht- y e ar- oldapp e l l an t t e s t i f i e d th at h e an d th e v i c t i m ha d b e e n c hil dh oo d f ri e nd s, and they beca me rea cquainted as adults when the appellant was re lease d from prison. The appellant

rec alled that on F ebrua

ry 1, 2002, the victim c ame to his trailer with a g uitar. They drank be er, a nd the app e lla nt g a ve the vic tim so me of his Clo na

pin pil ls. Th e y la te r we nt to B oo he r’ s h ou se , w ith the victim taking his g uitar. Afte r they had bee n there for a while, B ooher said she was not fe eling

we ll, a ndthe y

de c ide d to lea ve . The app e lla nt w e nt o uts ide wh ile the vic tim re ma ine d b e hin d to us e the ba thr oo m. Af

te r se e ing tw o po lic e c ars , th e app e lla nt d e c ide d to wa lk h ome , th inking the vic tim would soon follow. Shortlyafte r the a ppellant ar

rived home, D iamond Boohe r ca lled, say ing tha t the victim came out of

the bathroom, jumped on top of them in the bed, and was “messing with” her
mothe r. Th e app ell a nt a sk e d D ia mon d to pu t th e vic tim on the te le ph on e . Wh e n th e vic tim

a ns we re d th e telep ho ne, the app e lla nt a sk e d h im t o le a ve B oo he r’ s h ou se a ndc ome ba c k to his house. The victim responded with a de rog atory rema rk, telling the appe llant that he would do what he wa nted. The vic tim hung up on the a ppellant. The a

ppellant spo k e wi t h Di am o nd ag ain and

a sk e d f or he r a dd re ss. Ou t of

c on c e rn , th e app e lla nt c a lle d 91 1 a nd tol d th e op e rator that th e vic tim ha d a n o uts ta nd ing c hil d s up po rt wa rr a nt. Af te r the c a ll, po lic e arr e ste d th e vic tim a nd too k h im t o ja il.

On Fe bruary

11, 2002, the appe llant beg an serv i n g jail time for a DU I sentenc e. The appellant wa s incarc erated with the vi ctim. Whil e they wer e in j ail toge ther, the a ppellant aske d the victim why

he did not come back to his trailer that night. The victim responde d that he had w anted
to stay at B o o h e r ’ s h o u s e

. T h e v ic ti m th e n a s k e d th e ap p e ll a n t h o w p o li c e k n e w to arr iv e at Boohe r’s house

. T h e appe llant told the victim t hat he c alled 911 bec ause the victim was scaring B oo he r’ s c hil dr e n. Th e vic tim loo ke d a t the app e lla nt w ith a n e xpre ssi on of dis be lie f a ndbe tr a y a l. Th e re a ft e r, the ir

frie nd sh ip, wh ile sti ll i nta c t, b e g a n to c oo l.

The a ppellant was r elea sed fr om jail on March 29, 2002. The victim had been r elea sed befor e him. After his rele ase, the appellant put the vi ctim’s g uitar i n his lawn building a nd called the victim severa l times to t ell him that he had his g uitar; howeve r, the victim did not return any of his c a lls

.

Th e app e lla nt n e xt sa w the vic tim on Sa tur da y , Ap ri l 20
, 20 02

. Th a t mo rn ing , th e app e lla nt, wh o d id n ot e a t br e a kf

a st, too k o ne De pako te pil l, a c ou ple of Clo na

pin pil ls, a ndthr e e Xa na x pill s. Additionally , he dra nk three six -pac ks of bee r and smoked some marijuana

. At noon, Boohe r ca lled to invite the appellant to lunch. While at Boohe r’s house, the appellant ate and consume d more be er. The a ppellant re turned home be tween 4:00 and 4:30 p.m. to wait for Ma rk Ge ntry , who was taking-11-

him to work on the Gentry s’ trailer . Whil e wa iting on the Ge ntry s, the appellant drank t hree or four

mor e be e rs a ndtoo k fiv e Xa na x pil ls. Whe n M rs . G e ntry pic ke d h im u p, the app e lla nt t oo k a bo ttl e of Xana x pills and some marijuana w ith him. The appellant wa s wea ring a white T- shirt, blue jean sh orts, wh ite so c ks , a ndte nn is s ho e s. On the wa y to the Ge ntry s’ tr ail er, th e y sto pp e d a t a convenie nce store wher e the a ppellant boug ht a six -pac k of bee r.

Whil e a t th e Ge ntry s’ tr a ile r, the app e lla nt c on tin ue d to dr ink be e r. At on e po int , h e c ut h is leg
, and he took e ight Xana x pills for the pain. When he was re ady to leave, the Gentry s drove the

app e lla nt h ome . E n r ou te , a t app ro xima te ly 9:3 0 pm. or 10 :00 pm. , h e a sk e d M r. Ge ntry to t a ke him to the victim’s camper . The a ppellant said he ha d the victim’s da ug hter’s g uitar and wanted to give it ba ck to the victim, a nd he wanted to g ive the victim his new telephone n u m b er

. T h e a ppellant g ave Mr . Gentry direc tions to the vi ctim’s campe r, but they did not take his usual route be cause the alcohol and pills wer e beg inning to impair his judgme nt. The appellant state d that he wa s not armed, explaining that he ha d no intent to kill the victim when he w ent to the victim’s campe r.
When they

arrived at the victim’s camper, the appellant told Mr. Ge ntry to let him out t hen park at the near

by churc h to wait for him. The appellant knocked on the victim’s door, and the door

su dd e nly bu rs t op e n w ith the ple xig la ss w ind ow sh a tte ri ng in the app e lla nt’ s f a c e . T he vic tim

c a me out of his c amper , arme d with a g un, and beg an ca lling the a ppellant a “ snitch” and othe r der og atory names. The victim swung the g un, hitting the appe llant’s rig ht wrist, causing his wrist to bleed. The appellan t b en t , s ea rc h ing f or a w eapon to knoc k the g un out of the victim’s hand. The appellant found a stick a nd came up swing ing. The appellant missed the g un but hit the victim i n the shoulder or the head. The appellant asserted t hat t he victim was not dissuaded from try ing to hurt him. The appellant c laimed that he was so frig htened that he beg an to lose consc iousness; however , he kept swing ing the stick, try ing to g et the victim to leave him a lone. The next thing the appe llant

re me mbe re d w a s th e vic tim ly ing on the g ro un d. Th e app e lla nt b e lie ve d th a t he wa s u nc on sc iou s. At that point, the appellant beg an “c oming to.” T he appe llant sta ted that during the incident, he w as “sca red . . . plumb to dea th.”

The a ppellant saw the g un next t o the victim, and he picke d it up. He said he did not know if the g un was loade d beca use he did not che ck it. The appellant walked towa rd the Ge ntry s’ van. On the wa y , he took his shirt off, wrappe d the gun i n his shirt, and st uck it in his pants. He threw the stick in the woods nea rby . When he g ot into the Gentry s’ van, he told them that he and the vic tim ha d g ott e n in to a

sc uf fl e . H e c ou ld n ot r e c a ll the ro ute the y dr ov e on the wa y

ba c k b e c a us e he wa s so shaken fr om the alterc ation. He also did not r eca ll stoppi ng at a store in J ohnson Cityor calling his sist er.

The a ppellant said that he was heavily intox icated when he arrived at his sist er’ s house. He

w o k e t h e n e x tm o r n i n g o n t h e f l o o r o f h i s n i e c e ’ s b e d r o o m a n d f o u n d t h e r o o m i n c o m p l e t e d i s arr a y. He didno t kn ow wh a t ha d h app e ne d to his c lothe s a nd c ou ld no t fi nd the m. L a te r tha t mo rn ing , h is brother- in-law drove him home.-12-

On April 22, 2002, the victim’s br other, B illy , called the appellant a nd informed him that the victim was dea d. The a

ppellant was upset by the news. At some point that day , the appe llant ga ve

a state me nt a t the sh e ri ff ’s de pa rt me nt, bu t he did no t te ll the de te c tiv e s th a t he ha d s e e n th e vic tim on April 20. I n fac t, he lied and told police that he was with some one named Amy on the nig ht of Ap ri l 20 . H e a c kn ow le dg e d ma kin g se ve ra l te le ph on e c a lls to the Ge ntry s o n Ap ri l 22

. On Ap ri l 23, the appe llant went to Bo o h er ’s h o use. The G entry s arr ived at B ooher’ s residenc e, and the appellant talke d to them about what had ha ppened the night of

the murder

.

The a ppellant said he was arrested at approximately 4:00 p.m. or 5: 00 p.m. on April 24, 2002, at B ooher’ s house. J ust prior to h i s arr est, the appe llant took over 20 L ortab pills, and he dr ank a l i t t l e o v ert we l v e b ee rs

. P o l i ce t o o k t h e a p p el l a n tt o t h e s h er i ff ’s d ep ar t m en tfo r q u es t i o n i n g. De te c tiv e Christ ia n to ld the app e lla nt tha t he ne e de d to adv ise the app e lla nt of his Mir a nd a

ri g hts
, t h e n h e b e g a n r e a d i n g s o m e t h i n g v e r y f a s t

. T h e ap p e l l a n t t e s t i f

i e d t h a t h e d i d n o t k n o w w h a t hi s Miranda rights we re. Rega rdless, t he appellant signe d a wa iver of rights form and voluntarily spoke with Detec tive Christian. During the interview , the appe llant admitted to Detec tive Christian that he saw the victim the night of the murder. He told the detec tives that he had hear d that the victim’s brother, B illy , had ra

ped B ooher, a nd he thoug ht t h e v ictim had tried to do the same thing . He

re la te d to po lic e that w he n h e arrive d a t the vic tim ’s c a mpe r on the nig ht o f the mur de r, the vic tim attacke d him with a gun. T he appe llant expl ained to police tha t he used a stick to defend himself. The a ppellant testified that the detec tive rea d his statement to him but s aid he r ead it so fa st that he could not understand him. Reg ardle ss, the appellant sig ned his statement, believing that Detec tive Christian had written eve ry thing that the a ppellant had told him.

On cr oss-examination, the appellant said that he an d t h e victim had foug ht before , but the victim had never

been se riously injured. The a ppellant ac knowledg ed that he told De tective Christian he did not own a g un; however
, he had ta ken a g un from a ma n who had bor rowe d money fr om h im, a ndthe ma n n e ve r r e turne d f or the g un . H e sa id h e tie d th e g un in a so c k a nd too k it to Ev e Grif fi n’ s h ou se . T he app e lla nt m a int a ine d th a t if he tol d G arrett that he kil le d th e vic tim b ec au s e h e w as b o re d
, h e o n l y m ad e t h e re m ar k s ar ca s t i ca l l y

b ec au s e h e a n d Ga rr et twe re ar gu i n g. He r emember ed ca lling his ex -w i fe, Regina Hawkins, on the da y

he wa s arr ested, a cknowledg ing that he told her tha t no one was g oing to c all him a “snitch.”

Ba sed upon the foreg oing evidence
, the appellant was convic ted of fir st deg ree preme ditated murder, a nd he re ceive d a sente nce of life imprisonment. On appe al, the ap p el l an t ra i s es the fo llo wi ng iss ue s f

or ou r r e vie w:

(1) whe ther the tria l court er red in re fu s i n g to admit into evidence tape rec ording s of telephone calls which the victim made in Fe bruary 20 02 ;

(2 ) w he the r the tr ia l c ou rt e rr e d inre fu sin g to a llo w the app e lla nt t o

cross-e x amine Mrs. Gentry reg arding a stateme nt her husband ma de in h e r p re se nc e to p oli c e ;-13- (3 ) w he the r the tr ia l cou rt e rr e d in ord e ri ng the app e lla nt t o d isc los e inf or ma tio n r e g ard ing the app e lla nt’ s me nta l e va luatio n;

(4) whe ther the tria l court erre d in deny ing the appellant’ s motion for

a pr e tr ia l su bp oe na

du c e s te c um f

or the vic tim ’s me dic a l r e c or ds ;

(5) whether the trial court err ed in f ailing to instruc t the jury

that the Sta te ha d a

du ty to p re se rv e e vid e nc e ;

(6) whe ther the tria l court erre d in finding Te nnessee Code Annotated section 40-18- 110 (2003) wa s constitutional; and

(7) wh et h er the evidenc e wa s sufficient to sustain the appe llant’s conviction.

We will address these issues in a n order differ ent from that in which the y wer e ra ised.

II. Ana lys is

A. Sufficienc y

of the Evidenc e
On appe al, the appe llant arg ues that the evidenc e is insufficient to support his conviction for pr e me dit a te d f

ir st d e g re e mur de r, sa y ing that “ the e vid e nc e of pr e me dit a tio n .

. . is e nti re ly circ umstantial and does not excl u d e the reasona ble theory

the intent to kill was formed during an alterc ation that was not planne d in advanc e.”

On appe al, a jury

conviction re m o v es the pre sumption of the appellant’s innoce nce a nd repla ces it with one of g uilt, so t hat the appe llant car ries the burden of demonstrating to this court why the evidenc e will not support the jury ’s finding s. See State v. Tug g le, 639 S.W .2d 9 1 3
, 914 (Tenn. 1982) . The a

ppellant must establish that no reasona bl e t ri er o f fa ct could have found the essential ele ments of the offe nse bey ond a rea sonable doubt. See J ackson v. Virg inia, 443 U.S. 307, 319, 99 S. Ct . 2781, 2789 (1979); Te nn. R. App. P. 13(e).

Acc ording ly , on appea l, the State is entitled to the stronge st leg itimate view of the e vidence and all re asonable infere nces w hich may be draw n there from. See State v. Wil liams, 657 S.W .2d 405, 4 1 0 ( T e n n

. 1 9 8 3 )

. I n o th e r w o r d s , q u e s ti o n s c o n c e r n in g th e c r e d ib il it y o f w it n e s s e s and the weig ht and value to be g iven the evide nce, as well as a ll factua l issues raised by the evidenc e, ar e resolved by

the trier of

fac t, and not the appe llate courts. See State v. Pruett, 788 S.W .2d 559, 561 (Tenn. 1990)

.

The a ppellant was c onvicted of pr emeditated first deg ree murder, w hich is defined a s “the preme ditated and intentional killing of another .” Te nn. Code An n

. § 39-13-202( a)( 1) (2003)

.-14-

Tenne ssee Code A nnotated sec tion 39-13-202(d) de fines “pr emeditation” a s “an a ct done after the exercise of

ref lection and judg ment.”

“Preme ditation” means that the intent to kill must have be en formed pr ior to the a c t it se lf . It is no t ne c e ssa ry that th e purpo se to kil l p re -e x i s t in the mind of the ac cused f or any definite pe riod of time. Th e ment a l st a te of

the a c c us e d a t th e tim e the a c c us e d a lle g e dly decide d to kill must be car efully considere d in order to de termine whether the ac cused w as suffic ient l y fre e fr om excitement and passion as to be c apable of pre meditation.

I d.

The e lement of p re m ed i t ation is a question of fa ct for the jury . State v. Davidson, 121 S.W

. 3 d 600, 614 (Tenn. 2003) . Although the jury may not eng ag e in spec ulation, it may infer preme ditation from the manner and cir cumstance s surrounding the killing. State v. B land, 958 S.W .2d 651, 660 (Tenn. 1997). Our supre me court has delinea ted seve ral c ircumstance s from which

a jury ma y inf e r p re me dit a tio n, inc lud ing , b ut n ot l imi te d to , d e c lar ati on s of t he int e nt t o k ill
, evidenc e of the procur ement of a wea pon, the use of a

deadly wea pon upon an unarmed victim, the particula r cr uelty of the killing, prep ar at i o n s b efor e the killing f or the purpose of conc ealing the crime, a nd calmness immediately afte r the killing. I d.

Viewe d in the light most favor able to the State, the e vidence at trial es t ablished that the

app e lla nt h a d th e Ge ntry s d ri ve him to the vic tim ’s c a mpe r on the nig ht o f A pr il 2 0, 20 02 , a ndtol d them to wait for him at a near by churc h. The a

ppellant re turned to the Ge ntry s’ van a short time later with blood on his face, say ing that he had left the victim “ for dead and that it was g ruesome a s hell.” Detec tives rec overe d from the woods near the vi ctim’s campe r a fifty -two-inch hewn tree limb. The limb bore blood, hair, and br ain matter. The blood was identified as being the victim’s. Dr. Stephens testified that the victim died a s a re s u lt of blunt trauma to the hea d and had sustaine d

nu me ro us blo ws to the he a d a ndup pe r t or so , w ou nd s w hic h w e re c on sis te nt with b e ing re pe a te dly
str uc k b y the tr e e limb. Dr . St e phens n ote d th a t so me of the blo ws c a me wh e n th e vic tim ha d h is ba c k tu rn e d f

ro m hi s a tta c ke r a ndso me of the blo ws oc c ur

re d w hil e the vic tim

wa s b ra c e d a g a ins t

a wa ll “or eve n more likely on the g round.” Mor eover , there was e vidence that t h e appellant wa s upset with the victim f

or assaulting Boohe r, and he was ang ry that the victim called him a “ snitch.” F u r th e r, t he appellan t t o ldh is s is te r , G arr e tt , th a t h e k il le d th e v ic ti m b e c a u s e h e w a s b o r e d

. We conclude that from the f oreg oing e vidence the jury could have rea sonably

deter mined that the

app e lla nt c omm itt e d th e fi rs t de g re e pr e me dit a te d mu rd e r o f the vic tim

.

B. A dmissibi lityof Evidenc e

The a ppellant ra ises two issues rela ting to the admis sibili ty of evide nce. F irst, the appellant arg ues that the trial c ourt should have a llowed him to introduce telephone calls which we re made by the victim during his Fe bruary 2002 incar cer ation. Second, the appellant contends tha t the trial-15-

court should have allowed him to cross-e x amine M r s

. G e n tr y r e g a r d in g s tatements her

husband made to police while she w as pre sent.

1. Te le ph on e Ca lls

The a ppellant ar g ues that t he trial court erre d in excluding the tape rec ording s of telephone calls made by the victim while he was incar cer ated in F ebrua ry 2002. Specifica lly , he conte nds that these tele phone ca lls were r elevant to establish the victim’s animositytoward the appellant a nd the victim’s status as the ag g ressor.

“‘Rele vant evidenc e’ me ans evide nce ha ving any tendenc y to ma ke the exist ence of any

fac t that is of c on se qu e nc e to the de te rm inatio n o f the a c tio n mo re pr ob able or le ss p ro ba

ble tha n it wo uld be without the evidenc e.” T enn. R. Evid. 401; see a lso State v. Kenne dy
, 7 S.W .3d 58, 68 (Tenn. Cr im. App. 19 99 ). Te nn e sse e Rul e of Ev ide nc e 40 2 p ro vid e s th a t “ [a]ll re le va nt e vid e nc e is admissible except as [ot herw ise] provided . . . . Evidence whic h is not relevant is not admissible.” Howeve r, eve n rele vant evidenc e “ma y be excluded if its probative va lue is substantiallyoutweig hed by the dang er of

unfair pr ejudice, c onfusion of t he is sues, or misleading the j ury , or by considerations of undue de lay , waste of time, or needle ss pr esenta tion of cumulative evide nce.” Tenn. R. Evid. 403.

Th e app e lla nt sou g ht to intr od uc e tape re c or din g s of nin e te le ph on e c a lls the vic tim ma de to his sister in Febru ary

20 02 wh ile he wa s in c arc e rate d in the Sul liv a n Co un ty Jail . I n th e fi rs t telephone c all made on F ebrua ry 4, 2002, the victim asked his sister to ta ke car e of his dog and aske d about posting his bond. The victim made a vag ue ref ere nce to the appellant bei n g at Bo o h er’s residenc e shortly

prior to his arr est. The victim ca lled his sist er agai n l at er that day but did not

me nti on the app e lla nt.

On F e br ua ry 8, 20 02 , d ur ing the thi rdc on ve rs a tio n w ith his sis te r, the vic tim a g a in a sk e d h is sister about hi s dog and his bond. The victim mentioned t hat t he appellant would be inca rce rate d

on Fe bruary 11. On Fe bruary 10, 2002, the victim told his sister that the appe llant would be at the jail the following day . The victim said that he did not know if he wanted to be incar cer ated with the appellant.

On Fe bruary

13, 2002, the victim called his sister. He as k ed ab out his bond but di d not

me nti on the app e lla nt. He c a lle d he r la te r that sa me da y a nda sk e d h e r t o b or

ro w m on e y

to p os t hi s bond. He mentioned that the appe llant had g iven him a bail bondsman’s c ard a nd had said that “Sug ar Ma ma” c ould ge t him out of jail for fifty dollars. The victim told his sister that the appe llant was in the jail down the ha ll from him. The victim call ed h i s s i s t er a t hird time on Fe bruary 13, ag ain asking about his bond. He said he had se nt a note to the appe llant asking to borrow money for his bo nd . T he app e lla nt d id n ot r e sp on d to the qu e ry . T he vic tim tol d h is sis te r that he ne e de d to g e t hi s g uit ar f

ro m B oo he r’ s h ou se

. Th e vic tim sa id that the app e lla nt ha d to s e rv e fi ft y da y s in ja il. Th e vic tim

op ine d that he be lie ve d that the app e lla nt ha d him thr ow n in ja il w ith him so he wo uld not be the only

person in jail.-16-

The victim next called his sister on Fe bruary 14, 2002, and he told her that he had not been

able to get the a

pp e lla nt t o r e sp on d to his re qu e st f or mon e y . T he vic tim

a g a in e xpre sse d h is dissatisfaction of not having his bond posted, say ing, “ These mother fucke rs ar e in her e laug hing at me. I ’m on a two hundre d and fifty d o l l ar s [ b o nd], Ioug ht to have bee n out of here , God damn. Cock suckin’ Willi e [t he appellant] down there
, man, I ain’t, fuck with him no more, man, e ver. I ’m writin’ him off.” He later said, “I don’t want to cause no problems for nobody , but God damn I ’d jus t li ke to g e t ou t of he re a ndtake c are of thi s sh it. L ike I

sa id[, ] it w a sn ’t

lik e I g ot d ru nk , p ub lic intox icated dr

unk. You know (unintelligible)

. He done it his stupid self. Willi e [the appellant] done this shit to me, just li ke he stuc k me up to Bristol.” I n his last telephone call to his sister on Fe bruary 15 , 200 2, the vic tim y e t ag a in as ke d ab ou t the mon e y fo r his bo nd bu t did not me nti on the app e lla nt.

The State objec ted t o the introduction of the c alls, say ing tha t the telephone c onversa tions

wer e hea rsay and irre levant si nce they wer e made almost three months befor e the murde r occ urre d. After revie wing the transc ript of the tape d telephone c alls, the trial court ruled that the c alls were inadmissible. The court found t hat m ost of the conve rsations revolve d around the victim’s dog, the g uitar, and his bond. Specif ically , the trial court stated:

[E] very phone ca ll was made to his sister. . . . Every phone

ca l l d ea l t wi t h h i s wa n t i n g t o get o u to f j ai l b ef o re h e h ad h i s h ea ri n g. Most of the phone calls showed that he loved his dog . . . . He’ s g ot

a sec ond conce rn, his daug hter’s birthday or something is coming up and he r eally

wants to g et the g uitar from this April J ackson [Boohe r]
to t a ke to, g e t it t o g o to his daug hte r, a ndit s ho ws he wa nts to g e t hi s things in orde r . . . . And he actua lly say s in there he didn’t car e about g oing to jail as a

result of the hearing as long as he c ould just get out on bond for a

few day s to ge t a fe w things taken ca re of

.

Th e c ou rt sa id tha t it

wo uldno t w a ste the jury ’s tim e by ha vin g the m li sten to the c on ve rs a tio ns , finding , “I

don’t think it really

g oes to any

anim o s i t y t o war d [t he appe llant.] ” The court

a c k n o w l e d g e d t h a ts o m e o f t h e c a l l s r e f

l e c t e d t h e v i c t i m ’ s d i s p l e a s u r e w i t h t h e v i c t i m i n F e b ru ar y; ho we ve r, the re wa s n oth ing to i nd ic a te that th e vic tim wa s st ill up se t in Ap ri l. M or e ov e r, the vic tim

never threa tened the a

ppellant; he mer ely

stated that he was “writing him off.” The c ourt conc luded by statin g that th e c a lls we re no t r e le va nt, or , if re le vant, lis te nin g to a ll of the c a lls wo uldbe a wa ste of the jury ’s time.

L a te r i n th e tr ia l, the c ou rt re vis ite d its ru lin g on the ina dmi ssi bil ity of the te le ph on e c a lls
, s ay i n g:

And I

want to say a bit more on the tapes tha t I sustained an objec tion
to. I tho ug ht a bo ut it ov e r the we e ke nd , r e vie we d th e tr a ns c ri pt a g a in this morning, and I

still find that the Court fee ls that I could not allow the int ro d u cti on of the de rog atory rema rk made towards [the appellant] without allow[ ing] the jury to hear all of the tape s. And-17- then if they

hear d all of the tape s, any probative va lue that, any

rema rk s th a t [t h e v ic ti m] ma d e a g a in s t [t h e ap p e ll a n t] w o u ld be substantially

outweig hed by

the pre judice to the State. First of all, I don’t find that any

of the rema

rks are probative of his thre atening [t he

app e lla nt] i n a ny

wa y or ha vin g a ny

lon g te rm

fe e lin g s o f il l will
tow ard s [th e app e lla nt] a

re a ny mor e to a ny

bo dy e lse wh o d idn ’t

he lp him ge t out of jail on bond, but if there is any probative value[,] i t’s sl ight an d it ’s ou tw e ig he d b y the pr e jud ic ia l [e ]ff

e c t th a t it wo uld have on, in this ca se ag ainst the State, so there

.

The a ppellant ar g ues that the trial c ourt sever ely hamper ed his case in excluding the playing of the audiotapes, maintaining that the trial court “ef fec tively g utted the def

ense’ s case ” by

exc luding the c a lls . T he app e lla nt c on te nd s th at wi tho ut the c a lls the mse lve s to de mon str a te that th e vic tim was unha ppy with the appellant, the a

ppellant had to re ly

upon the testimony

of third per sons and his own testimonyto convey the victim’s displeasure

.

The a ppellant cites seve ral case s in support of his c laim that the trial court e rre d in its ruling as to the telephone conver sations. I n Neil P. Cohen et al., Tenne ssee L aw of Evidence , § 4.04[5] [d] (4th ed. 2000 & Supp. 2004), the law in Tenne ssee r eg arding the admissibilit y of prior thre ats of a victim ag ainst an appe llant is ex plained:

[if ] the vic tim thr e a te ne d the de fe nd a nt, wh o the n r a ise s se lf -d e fe ns e in t ri a l [and ] if

the de fe nd a nt w a s a wa

re of the thr e a t, the thr e a t is admissible on the i ssue of whether the defendant had the appre hension of imminent bodilyinjury . I f the de fenda n t wer e not awa re of the threa t or the victim’s violent charac t er, the threa t may still be admissible under a nother line of T ennesse e ca ses.

For example, in St ate v. Say lor, 117 S.W .3d 239, 242 (Tenn. 2003) , the proof a dduced at trial

reve aled that during the afte rnoon of a day of drinking with others, Say lor struck the vic tim with a hatche t or hammer, killing him. Our supreme court c oncluded that the tr ial court ha d err ed in not allowing testimonyby

one of the drinking companions that at 1:55 p

. m . on the af ternoon he was killed, the victim ha d s ai d he wa s “g oing to kill” Say lor, reg ardle ss of the fa ct that Say lor had not been told of this threat. I d. at 247. The c ourt explained that the testimony should have be en admitted beca use

“ [t]he c ha

ra c te r o f the de c e a se d f or vio le nc e , a s w e ll a s [hi s] animosity toward the defe ndant, as indicate d by words and a ctions at the time of t he kil ling and befor e, are proper matters for c onsideration of t h e ju r y

u p o n th e q u e s ti o n o f

s e lf

- d e f e n s e

. I n s o me c a s e s w h ere self-de fense is an is sue, uncommuni cate d threa ts made by a dec ease d ag ainst a defendant are admissibl e as g oing to the s tate of mind of the de c e a se d. Ho we ve r, the app lic abil ity of thi s rule is l imi te d a ndit-18- become s opera tive only

wher e re levant to expl ain the conduc t of the dece ased in e stablishing who wa s the ag g ressor.”

Id

. a t2 4 8 ( q u o t i n g S t a t e v

. B u t l e r , 6 2 6 S

. W

. 2 d 6
, 1 1 ( T e n n

. 1 9 8 1 ) )

. T h e S a yl o r c o u r tw e n to n t o s a y:

We thin k th a t B utl e r c on tr ols the iss ue in the c a se be fo re us

. Ruthie Hall’s testimony consisted of an uncommunica ted threat made by the victim, J ohn Case, towards Say lor prior to the victim’s dea th. Un de r B utl e r, su c h te sti mon y is a dmi ssi ble a s a n e xce pti on to the ru le excluding hea

rsay statements as a n indication of the victim’s state of mind, and it is relevant to establish the victim’s status as the ag g ressor. [Butler ], 626 S .W.2d at 11.

I d.

We conclude tha t Say lor is disti ng uishable fr om the instant c ase. F irst, we note that the thr eat to kill S ay lor was made by the victim shortly

b ef o re h i s death. I n the instant case , the victim’s
comments ca me from nine te lephone calls from the victim to his sister, beg inning on F ebrua ry 4 and ending on Fe bruary

15, 2002. The victim was killed on Apr i l 21, 2002. I n four of the telephone calls, including the final one , which lasted te n minutes, the appellant was not mentioned. F urther, there wer e only

a fe w re fer ence s to the appellant during the appr ox i m at el y ei gh ty minutes of telephone c onversa tions. The victim’s conver sations to his sister, consisted of comments such as he did not know if he wa nted to be “loc k ed u p ” wi th the appellant; he “ ain’t eve n hear d from [the appellant]” who “ evidently . . . just ain’t gonna

help [him ]”; “Cock suckin’ Willi e .

. . I ain’t, fuc k with him no m o re , m an , ever . I ’m writin’ him off” ; and “Willie done this shit to me, just li ke he stuck me up to Bristol.” The victim’s rema rks about the a

ppellant d i d n o t am o unt to threats of vio le nc e , in ste a d c on sis tin g of c omm e nts that he wa s u ps e t th a t th e app e lla nt ha d him thr ow n in ja il, he didno t know if he wa nte d to be inc arc e rate d with the app e lla nt, a nd he wa nte d noth ing mor e to do wi th the app e lla nt. I n the ir e nti re ty , the c a lls app e ar t o c on sis t mo stl y of c omp la int s b y

the vic tim about his situation and his asking f or new s of re latives and his home. I n fac t, as the trial c ourt noted in excluding the tapes, “[m] ost of the phone calls showed that he loved his dog .” Thus, taking the
statem e nts of

the vic tim

in c on te xt, w e c on c lud e that th e tr ia l c ou rt didno t a bu se its dis c re tio n in excluding th e t ap es. We note that, as the a ppellant himself conc edes, pr oof of the vic tim’s displeasure with the appellant wa s introduced throug h other witnesse s. There fore
, even if the trial

c ou rt e rr e d in e xclu din g the c a lls , s uc h e rr or wa s h arm le ss. Se e Te nn

. R. Cr im. P. 5 2( a ); Te nn . R. App. P. 36(b).

2. Statement by Wit ness’s Husba nd

Th e app e lla nt n e xt ar g ue s th a t th e tr ia l c ou rt e rr e d in n ot a llo wi ng Cha sit y Ge ntry to b e c ro ssexamined about her husba nd’s statement to the police , which st atement was made in her prese nce. Mrs. G e n try te s ti f

ie d th a t, o n th e ir w a y h o me f r o m th e v ic ti m’ s r e s id e n c e , th e y s to p ped at ag as station in J ohnson Citywher e she sa w the appe llant throw something in a dumpster and c over it up.-19-

I n his statement to the police on April 22, 2002, Mr. Gentry said that they did not stop any wher e af ter they left the c amper , taking the appe llant directly to his sister’s house. Mr. Ge ntry did not testify

at trial. Ther efor e, during the cross-e x amination of Chasity Gentry , the appe llant sought to question her as to her husba nd’s April 22, 2002, statement, sa y ing: “ And y ou sat there and listened a s he told the police about it and y our husband sa id that.”

Th e Sta te ob

je c te d a nd arg ue d that Mr s. Ge ntry c ou ld no t te sti fy a s to wh a t Mr . G e ntry sa id beca use such testimony

would be hea

rsay

. The a

ppellant re sponded that Mrs. Ge ntry had adopte d the April 22 statement by signin g i t as a witness. The trial court disag ree d, stating tha t “she witnessed the state ment, it doesn’t mean she ag ree d it wa s true.” The appellant further arg ued that he wa s not attempting to introduce the statement to prove the truth of the matter asserted; instead, he wanted “ [t ]o prove that they said inconsistent things. I don’t know which of those statements is true. I don’t know if her

second state ment is true or her first statement is true, I just know it’s inconsist ent and she w as pre sent when it wa s said . . . .” The trial court sustained the State’s objection.

Hea rsay is defined a s “a statement, other than one made by the decla rant while te stify ing at the trial or he aring , offe red in e vidence to prove th e t ru t h of the matter asserted.” Te nn. R. Evid. 801(c) . Gene rally , hear say statements ar e inadmissible unless they fall under one of the rec og nized exceptions to the hearsa y rule. Te nn. R. Evid. 802.

On appe al, the appe llant arg ues that the c ontrasting April 22 and May 1, 2002, statements of Mark Ge ntry

are “exculpatory ” bec ause in the f irst statement Mr. Gentry said that they did not stop any wher e and f

ailed to include inform at i o n ab o u t the stop at the conve nience store betwe en the victim’s camper

and t h e ap p el l ant’s sister’s house . There fore , the statements should have been br ou g ht b e fo re the jury

thr ou g h the tes ti mony

of Mr s. Ge ntry . H ow e ve r, we no te that th is inf or ma tio n w a s p ro vid e d to the jury du ri ng De te c tiv e Christ ia n’ s te sti mon y . Sp e c if ic a lly , o n c ro ssexamination, the following c olloquy occur red:

The a ppellant: Detec tive Christian, y ou said y ou went to that dumpster at the B P St ation or someone did?

Detec tive Christian: S omeone did.

The a ppellant: And what da y

did they g o there ?

De te c tiv e Christ ia n: M a y 1s t.

The a ppellant: May

the 1s t. Did any

body g o to that dumpster

a t th e B P Sta tio n b e fo re Ma y the 1s t?

Detec tive Christian: No.-20- Th e app ell ant : O n Apri l th e 22 nd di d any bo dy go to th at BP Station?

De te c tiv e Christ ia n: No , no o ne kn e w t o g o th e re til l Ma y 1s t.

The a ppellant: On April 22nd, y ou to ok a stateme nt from Ma rk Ge ntry , d id y ou no t?

Detec tive Christian: Idid.

The a ppellant: And present and si g ning as a witness when that
sta te me nt w a s ma de wa s Ch a sti ty Ge ntry , r ig ht?

Detec tive Christian: S he wa s, she was the re.

The a ppellant: Okay , y ou interviewe d Mark Ge ntry ag ain on Ap ri l th e 23 rd , is that r ig ht?

Detec tive Christian: Idid.

The a ppellant: And did any

body on April the 23rd g o look at that dumpster?

Detec tive Christian: No, w e didn’t know a ny thing a bout the dumpster till then.

The a ppellant: All rig ht, and y ou interviewe d Mark Ge ntry ag ain on April the 24th?

Detec tive Christian: Idid.

The a ppellant: And did an y

body g o chec k the dumpster on April the 24th?

Detec tive Christian: No.

The a ppellant: No one looked at the dumpster until May the 1s t?

De te c tiv e Christ ia n: N ot u nti l Ma y 1s t.

The a ppellant: And that was t h e fi rs t time y ou had any information about the dumpster?-21- Detec tive Christian: That’s the fir s t t ime I ’d re ceive d any information about the dumpster.

The ap p e ll a n t: So n o o n e a t th e s h e r if f ’ s d e p ar tm e n t had l o o k ed i n t h at d u m p s t erwh er e t h e G en t ry ’s [ s i c] s ayt h er e w er e t h i n gs thr ow n a wa y

un til Ma y

the 1s t?

Detec tive Christian: Until May the 1st that’s when w e obtained the information about it.

Thus, beca

use the a ppellant was a

ble to elicit the desired testimonyfrom a la ter witness, the c ourt’s

e rr or , if a ny , w a s h arm le ss.

C. Disclosure of A ppellant’s Menta l Evaluation

The a ppellant contends tha t the trial court e rre d in ordering t h e d isclosure of inf ormation

re g ard ing his me nta l e va luatio n. Pr ior to tr ia l, the app e lla nt f ile d n oti c e pu rs ua nt t o T e nn e sse e Rul e of C riminal Procedur e 12.2 that he intended to pr esent e x pert testimony as to a menta l condition of the app e lla nt w hic h w ou ld r e la te to the iss ue of g uil t. T he Sta te fi le d a re sp on se a sk ing fo r the na me

a n d q u a l i f

i c a t i o n s o f

t h e p r o p o s e d e x p e r ta n d a l s o r e q u e s t e d a s u m m ar y o f

t h e e x p e r t ’ s t e s t i m o n y. The a ppellant re sponded that the State wa s not e ntitled to this infor mation be cause he had not soug ht

rec iproca l discovery

pursuant to Tenne ssee Rule of Criminal Proc edure 16 and that Rule 12.2 does

no t r e qu ir e su c h d isc los ur e . F oll ow ing a he ari ng on the ma tte r, the tr ial cou rt c on c lud e d th a t if evidenc e wa s to be prese nted as to the menta l condition of the appe llant, the appellant should provide the State with the name, a d d re s s, and qualifications of the expert witness, as well as a copy of the

e xpe rt ’s re po rt . T he app ella nt a rg ue s th a t th e tr ia l c ou rt

e rr e d in thi s ruli ng . T he Sta te dis a g re e s, noting that no e x pert testimony was pre sented a t trial as to the appe llant’s mental condition.

I t is unnecessa

ry for us to dete rmine whether the trial court err ed in its interpr etation of Rules 12 .2 a nd16 , a s w e ll a s th e ir int e rp la y . T he app e llant d oe s n ot all ege o r at te mpt to s ho w h ow thi s

ru l i n g h ad an y

ef fe ct o n t h e t ri al

. Ac co rd i n gl y , we co n cl u d e th at ev en i f t h e c o u rt er re d i n t h i s ru l i n g, the e rr or wa s h arm le ss.
D. Pretrial Subpoena of Victim’s Medica l Records

The a ppellant ar g ues that the trial c ourt err ed in deny ing his motion for a pretria l subpoena duces tecum of the victim’s medical r ecor ds. Prior to the trial, the appe llant’s counsel soug ht to have subpoenas issued to all hospitals in Washing ton a nd Sulli van Counties, seeking medical r ecor ds of the victim con t en d i n g that the re cords we re ne cessa ry to learn of

his prior violent behavior. Following a hea

ring , the court declined to is sue t he subpoena s reque sted but ag ree d to issue one for a 1998 incident, of which the def ense w as aw are , involving the victim. At a late r hea ring , afte r the State advised it had obtaine d certain of the victim’s me dical rec ords, the State ag ree d to provide the defe nse with rec ords that might be exculpatory and furnished medica l rec ords as to three times the-22-

vic tim ha d re c e ive d med ic a l tre a tme nt. Re ly ing on the ho ldi ng in P e nn sy lva nia v. Ritc hie , 4 80 U. S. 39, 107 S. Ct . 989 (1987), the appellant arg ues that the c ourt err ed in not allowing subpoenas to be

serve d to all hospitals in t he two-c ounty are a.

The de fendant in Rit chie ha d been c harg ed with var ious sex ual offe nses ag ainst his minor daug hte r, a ndhe so ug ht t o o bta in c on fi de nti a l r e c or ds fr om Chil dr e n a ndYo uth Se rv ic e s, a state

a g e nc y , a s to its re c or ds on the pe nd ing c ha rg e s a s we ll a s e arl ie r c omp la int s of abu se . T he Sup re me Cou rt ru le d tha t def

e ns e c ou ns e l wa s not en tit le d to exam ine the re c or ds bu t th a t th e tr ia l c ou rt sh ou ld make a n in c am e ra inspection of them to asc erta in which were releva nt and should be supplied to the de fe ns e . I d. a t 61
, 10 7 S. Ct. a t 10 03

. B y c on tr a st, in the ins ta nt c a se , th e app e lla nt a rg ue s th a t hi s conviction should be reve rsed beca use the trial court did not allow him to seek re cords whic h may or may not exi st. W e note that at trial the appe llant did not uti liz e t h e m edica l rec ords he ha d

rec eived a s to three incide nts involvi ng the victim. We disagr ee w ith the appellant’s c ontention that the ho ldi ng in R itc hie pr ov ide s auth or ity fo r the app e lla nt t o r e c e ive the se re c or ds

.

F. I nstruction on State’s Duty to Preserve Evidence

The ap p el l ant arg ues that the trial c ourt err ed in fa iling to instruct the jury as to the State’s duty to preser ve evide nce. H e conte nds that the “Styrofoa m , plexi -g lass, and duct tape from the [vi ctim’s] camper door was evidence ‘that could [have been] favor able to the [appellant].’” Dur ing a jury -out hearing, Eddie Simm s, an investigator with the Sulli van County Public Defe nder’ s office
, testified that Dete ctive Chris t i an t o l d him that the victim’s camper had bee n destroy ed. Dur ing questioning by

the trial court, Sim ms said he had visited the c rime sce ne “right around the time of the pre liminary

hearing,” but the campe r wa s no longe r there

.

Detec tive Christian was re called a nd testified that he told Simm s the victim’s campe r “ha d been de stroy ed or moved beca use [ he] didn’t know for sure.” He sa id that “sometime later on dow n the roa d” he le arne d that the ca mper still ex isted, but no one eve r made any further reque sts or asked him any thing e lse about t he camper. He acknowledg ed that he ne ver told Simms t hat the ca mper wa s still in exi stence

.

I nitially , we note tha t t h e Due Process Clause of the Fourteenth Amendme nt to the United States Constit ution a nd Article I
, Section 8 of the Tenne ssee Constit ution a ffor d ev er y criminal defe ndant the rig ht to a fair trial. See Johnson v. S tate, 38 S.W.3d 52, 55 (Tenn. 2001). As suc h, the State has a c on s t i tutional dutyto furnish a de fenda nt with ex culpatory evidenc e pertaining to the petitioner’s g uilt or innocence or t o the potential punishment fac ed by a def endant. See Br ady

v. Mary land

, 373 U.S. 83, 87, 83 S. C t. 1194, 1196-97 (1963).

I n State v. Fe rg uson, 2 S.W .3d 912 (Tenn. 1999) , our supre me court addre ssed the issue of when a defe ndant i s entitled to relief when the State has l ost or destroy ed evidence tha t was alleg ed to have be en exculpatory . The court explained that a reviewing court must first deter mine whether the State had a

duty to preser ve the lost or destroy ed evide n ce . Fe rg uson, 2 S.W .3d at 917.-23-

Ordinarily , “the State ha s a duty to pr eser ve all evidenc e subjec t to discovery and inspec tion under Tenn. R. Crim. P. 16, or other applica ble law.” I d. Howeve r,
“[w]hatever duty

the Constitut ion imposes o n t h e States to prese rve evidenc e, that duty must be limit ed to evidenc e that mig ht be expected to p la y a sig nif ic a nt r ole in the su sp e c t’ s defe ns e . T o me e t th is standard of

constitutional mate riality
, evidenc e must both possess an exculpa t ory

value that wa s appar ent bef ore the evidenc e wa s de str oy e d, a ndbe of

su c h a natur e that th e de fe nd a nt w ou ld b e un able
to o bta in c omp ara

ble e vid e nc e by

oth e r r e a so na

bly a va ila ble me a ns

.

Fe rg uson, 2 S.W .3d at 917 (quoting California v. Trombetta, 467 U.S. 479, 488-89, 104 S. Ct. 2528, 2534 (1984) ( footnote and c itation omit ted)).

I f the proof

demonstrates the exis tence of a duty to preser ve the e vidence and further shows that the State has fa iled in that duty , a court must proceed w ith a balanc ing a naly sis in v olving

c on sid e ratio n o f the fo llo wi ng fa c tor s:

1. The de g ree of neg lige nce involved;

2. The s ig n if

ic a n c e o f th e d e s tr o y e d e v id e n c e , c o n s id e r e d in li g h t of the proba tive value a nd reliability of secondary or substitute evidence that rema ins available; a nd

3. The suff

iciency of the other

evidenc e used at trial t o support the conviction.

I d. (footnote omitted). I f the c ourt’s consider atio n o f t h es e fa ctors revea ls that a trial without the missing evidenc e would lack fundame ntal fairne ss, the court may consider sever al option s

. For example, the court may

dismiss the cha

rg es or, a lternatively , provide a n appropriate jury instruction. I d.

Gene rally
, a trial court’s de cision to admit or exclude evidence at trial will not be overtur ned absent a n abuse of

discretion. State v. James, 81 S.W .3d 751, 760 (Tenn. 2002) ; see a lso St at e v. Wil liam C. Tomli n, J r., No. M2003-01746-CCA-R3-CD, 2004 WL 626704, at *3 (Tenn. Crim. App. at Nashville, Mar . 30, 2004), perm. to appeal de nied, (Te nn. 2004). F urther, “ [t ]he decision whether to dismi ss an indictment lies within the discretion of the tria l court.” State v. Har ris, 33 S.W .3d 767, 769 (Tenn. 2000) . An abuse of di scre tion exis ts when the “‘c ourt applied an inc orre ct leg al standar d,

or re a c he d a de c isi on wh ic h is a g a ins t log ic or re a so nin g that c a us e d a n inj us ti ce t o t he p art y complaining .’” State v. Shirley , 6 S. W .3d 243, 247 (Tenn. 1999) (quoting State v. Shuck, 953 S.W .2d 662, 669 (Tenn. 1997) ).-24-

First, we must determine whe ther the State had the duty to preser ve the c ontested items of

e v id e n c e

. I t s e e ms c le ar

th a t th e it e ms w e r e a t l e a s t v a lu ab le to th e p r e p ar a ti o n o f th e ap p e ll a n t’ s defe nse. As such, the State was re quired to p re s erve the items. Next, we must determine the conseque nces of

the State’s fa ilure to adhe re to that duty

.

The re cord de monstrates that the e vidence was lost throug h simple neg lige nce. Mor eover , the app e lla nt h a s n ot e xpla ine d w hy the ph oto g ra

ph s we re no t a s us e fu l a s th e Sty ro fo a m, p le xig la ss, and duct t ap e fr o m the victim’s front door would ha ve bee n. I n fac t, the appellant utilized the ph oto g raphs of th e vic tim ’s re sid e nc e a t le ng th i n h is c los ing a ndarg ue d a t le ng th r e g ard ing his client’s ac tions at the scene :

Now, we know [the appellant] walks to the trailer a nd we know there ’s no evidenc e of a fig ht inside that camper . There ’s no blood inside the campe r and the inside is not turned upside down like it would have bee n if y ou had two larg e men like that fig hting in that

sma ll a n a

re a . T he re ’s no , n o in dic a tio n o f a ny ki ndof sc uf fl e in the re . N ow , the da ma g e to the tr a ile r sta rt s a t the do or . T ha t do or is

a n impo rt a nt p ie c e of

e vid e nc e

. Yo u’ ve he ardthat th is w ind ow fr a me h a d p l e x i

- g l a s s i n t h e t o p f r a m e , S t yr o f

o a m i n t h e b o t t o m f

r a m e

. It was he ld toge ther by Duck [si c] ta pe on both sides. There was Duc k [si c] tape on the outside, ther e wa s Duck [sic] tape on the i nside. You

c a n s e e the Du c k [sic ] tape a tta c he d to the Sty ro fo a m a ndple xi-g la ss. You ca n see w here it was. L ook at that outside door. All of the Duck [si c] tape on the outside is g one except for a little bittystrip along the b o t t o m

. It ’ s a l l g o n e

. N o w t h e i n s i d e o f t h e d o o r l o o k s d i f f e r e n t l y. The inside of th e d o o r, and her e’s a close up of it, ther e y ou g o, y ou

can see the tape on the inside. You can see the g ray Duck [si c] tape on the inside is larg ely

undisturbed. I t g oes all the way up the side and it goe s down the bottom. I t’s h i d d en s o m e by that curta in, but it’s intac t o n th e in s id e

. N o w , w h a t d o e s th a t t e ll y o u , th a t’ s a ll b r oken out. Well, t he only

way y ou can e x plain that is y ou h av e a situation lik e thi s, y ou ha ve Du c k [sic ] t ape on bo th s ide s h old ing tw o th ing s. After an eve nt oc curs what’s left is the inside tape. The covering a nd the outside tape is all g one. What does t hat t ell y ou? The only logic al explanation is t he for ce c ame from the inside. I f the for ce pushing on those things c ame f

rom the other side the tape on the inside would be dislodge [d] and the tape on the outside would be ther e, but it’s just the opposite, folks. J ust the oppos ite. How else can y ou explain how that g ot broken out[? ] I n [t he appellant’s] statement he tells – they didn’t put it in the statement he signe d by the way , y ou notice – but he, they mentioned he sa id he ca me busting out of that door. There’s the proof of that.-25-

The a ppellant has not specifie d what evidentiary value the spe cific items would have offe red that the photog raphs did not. Moreove r, there was ample evidenc e at trial supporting the appe llant’s conviction. The tria l court con cl u d ed that these items would have added little, if anything, to the de fe ns e in this ma tte r, a ndwe a g re e . A c c or din g ly , w e c on c lud e that th e tr ia l c ou rt didno t e rr

in ref using to g ive the propose d instruction.

F . Co ns tituti on a lit y

of L e sse r- I nc lud e d O ff

e ns e Sta tut e

L astly , the appe llant arg ues that the trial court err ed in deny ing his motion to declar e Tenne ssee Code Annotated se ction 40-18-110 ( 2003) unconstitutional, citing State v. Robert Page
, No. W2003-01342-CCA-R3-CD, 2004 WL 3352994 (Tenn. Crim. App. a t J ackson, A ug . 26, 2004), perm. to a ppeal g rante d, (Tenn. 2005) . Howeve r, the a ppellant makes no c laims that the trial court

err ed in its charg ing le sser-inc luded offe nses. Rather, it appe ar s t h at h e i s seeking an advisory opinion as to a statute which he does not claim af fec ted his trial. We decline to provide such an opinion.

III. Conclusi on

Ba sed upon the fore g oing authorities and rea soning, we aff irm the judg ment of the trial c ourt but r emand for entry of a corr ecte d judgme nt to r efle ct the date of the judg ment as Mar ch 9, 2004, rathe r than Mar ch 9, 2002.

___________________________________ NORMA McGEE OGLE, J UDGE