IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON JANUARY SESSION, 1997
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9511- CR-00343 ) Appellee, ) ) SHELBY COUNTY ) V. ) ) HON. ARTHUR T. BENNETT, TERRENCE L. DAVI S, ) JUDGE ) Appe llant. ) (FIR ST DEGREE MURDER)

FOR THE APPELLANT : FOR THE APPELLEE : LESL IE I. BALL IN JOHN KNOX WALKUP Attorn ey at Law Attorney General& Reporter MARK A. MESLER WILLIA M DAVID BRI DGERS Attorn ey at Law Assistant Attorney General Ball in, Ball in & Fi shman, P.C. 450 James Robertson Parkway 200 Jefferson Avenue Nashvill e, TN 37243-0493 Suite 1250 Memphis, TN 38103 JOH N W. P IERO TTI Distri ct Attorney General THOMAS D.HENDERSON Assistant Distri ct Attorney General JENNIFER NICHOLS Assistant Distri ct Attorney General 201 Poplar Avenue, Suite 301 Memphis, TN 38103-1947
OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defendant, Terr

ence Davis, appeal s as of ri ght pursuant to Rule 3 of the Tenn essee Rules o f Appella te Procedure. He was conv icted by a j ury offirst degree murde r in the Sh elby Co unty Crim inal Cou rt, and sen tenced to life impr isonm ent. In addit ion to chal lenging t he suffi ciency of the evidence, Defenda nt argues that the trial court comm itted reversible error by: (1) ref using to suppress the statement given by Defendant on November 8, 1993; (2 ) refusi ng to permit Defendant

to intr odu ce into ev idenc e a lette r written by the v ictim’s mother; (3) all owing certai n p hotographs of the victim to be adm itted into evidence; (4) allowing opinion te stimony of a no n-expert w itness re garding discipl ine to be admitted into evi dence; (5) r equiring Defendant to prov ide to the State an investi gative r eport prepar

ed by a defense witn ess; and (6) administeri ng the oath to the grand jury foreperson i n the jury’s presence during the trial. W e affirm the judgm ent of the tria l court.

I. SUFFICI ENCY OF THE EVI DENCE

Whenever the suffici en cy of the ev idence at t rial i s questioned, the standard is whether, after reviewing the evidence in th e light most favo rable to the prosecution, an y rational trier of fact could have found the essen tial eleme nts of the crime beyond a reaso nable d oubt. Jack son v. V irginia , 433 U.S. 307, 319 (1979). This court may not reweigh or r

eevaluate t he evide nce. State v. Cabbage , 571 S.W .2d 832 , 835 (T enn. 19 78). On appea l, t he Stat e is enti tled-3-

to the strong est l egi ti matevi ew of theevi dence andallinf ere nces the ref rom. Cabbage , 571 S.W .2d at 835
.
Questions concerning t he credibi lity of the witnesses, the weight and value to be given the evidence, as well as al l factua l issues r aised by theevidence, are resolved by the trier of fact, n ot this cou rt. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. A pp.), perm . to appeal denied , id . (Tenn. 198 7). A jury verdic t approved by the trialjudge accredits the State’s witnesses a nd res olv es all conflicts in favor

of the State. State v. Grace , 493 S.W .2d 474, 476 (Tenn. 197 3). Because a verdict

of guil t removes the pr esumption of

innocence and repl aces it with a pres umptio n of guilt, the accuse d has the burden i n this cour t of illustrati ng why the evidence is insuf ficient to support the verdict returned by the trier of fact. St ate v. Tug gle , 639 S.W .2d 913 , 914 (T enn. 19 82); Grace , 493 S.W.2d at 476.

At the time of

the vict im’s death, the Defendant was l iving wi th the vi cti m, Santana Goo dwin, th e victim ’s mot her, V alerie G oodw in, and a two-m onth o ld child, Tere nce D avis, Jr. W hile Terence Davis, Jr. was the child of the Defendant and Ms. Go odwin, the Defen dant wa s not the b iological fath er of t he v ict im. During the State’s pr

oof, the ev idence presented was that on November 6, 1993,
an ambulance was dispatched t o Defendant’s home. The emergency medical technici an who ar rived on the sc ene, J anet K uhn, te stified a s to the victim’s conditi on upon her arrival at 4190 Ral eigh Woods, Apartment3. When Kuhn first arrived, the De fenda nt was holdin g the vic tim in his armsand told Kuhn t hat the victim fell and hit her h ead on the fi replace. Thevictim was cool to the touch and had no v ita l signs. After at tempting to resuscitate the vi ctim using various-4-

methods of CPR, intubati on, and medicati on and receivi ng no response fr om the vi cti m, Kuhn t rans ported t he vi cti m to L eBonh eur H ospi tal . On the way to the hosp ital, she noted that the vict im’s abdomen was very tight andswollen, and that she was co vered in b ruises with a hematoma on her forehead and a bu sted lower lip.

After

thevi cti m arrive d at LeBon heur Hos pital, she was treated by a pedia tric em ergen cy room physic ian, Ma ry McG inty. Th e victim was c old upon arrival, with no pul se or blood pressure and a distended abd ome n. She was observed to be a twen ty-two m onth o ld fem ale. W hile the victim ’s hea rt was s till g ivi ng electri cal impulses, there was no res ponse to the various resusci tation techniquesadm inistere d to he r. Dr. Mc Ginty te stified th at the vic tim wa s, for all practicalpurposes, dead when she arrived at the hospital. The vi ctim was found to have marks on her face, neck and abdomen, as wel l as brui ses, broken bl ood
vesse ls and a cut on her low er lip. Th e victim ’s stoo ls cont ain ed both old and
new blood, and t he tube used in an at tempt to resus citate t he victi m contained blood from the vi ctim’s abdomen. Wh ile Dr. McGinty did not list a cause of death, she w as suspicious

of abuse immediately and recommended an autopsy be performed.

James Madden, a crime scene investigati on officer of t he Memphis Police Depa rtment, was called to LeB onhe ur Ho spital to investig ate the victim’s death and to take photogra phs of her body. Late r, Ma dden went to the victim ’s home to investi gate and take photographs. While at t he home, he took photos of a paper towelin the ki tchen trash can with what appea red to be blood spots,
a sheet with what appeared to be blood sp ots, the bathro om w ith the vic tim’s-5-

house shoes lyi ng in the f loor, l umps of hair l ying on the living room floor, and the fireplacewhere the De fenda nt said the victim fe ll and hit her h ead. Madden then collected some of the items he photographed, inc luding t he papertowel, shoes, sheet and lum ps of h air. D uring cross -examinati on, Madden admitted t hat he observed fresh bruises on t he victi m’s lips, bruises on her left j aw, marks on her forehead, d i scolored spots on her neck and brui ses on her side when he photographed herat the h ospita l. He did not observe any blood on the fi replace when he was invest igating the scene.

Valer ie Goo dwin, th e victim ’s mother, testified that t he Defendant was not working duri ng the weekof November 1st t hrough November 8th and car ed for the victim whenever she was working at Cracker Barrelduring the evening hours. Just prior to November 6, 1993, Goodwin obs erved a dark ci rcle of bruises on t he victim’s jaw. When she asked the Defendant what happened to t he victi m, the Defendant tol d her that t he victi m fell outside whil e playing.

On the evening of

November 6, 1993, Goodwin was called in to work at t he CrackerBarre l. Wh il e w orking, s he called t he Defendant who tol d her that t he victim was sleeping. Later, th e Def enda nt calle d and told he r that the victim fe ll,
was not bre athing and a n am bula nce wa s on its way to the apart ment. After getting a ride fro m on e of he r neigh bors, G oodw in arrive d at the apartm ent in ti me to foll ow the ambulance to LeBonheur Hospi tal. While i n the waiti ng roo m, the Defe ndan t told he r that the victim fe ll after t ripping on house shoes and hit her head on the fir

eplace. Goodwin f urther testifi ed that both she and the Defendant sometimes spanked the victim on either her hands, legs, or bottom. On crosse xamin ation, she admitted t hat she never wi tnessed the Defendan t abuse the-6-

victim and told ot hers that she could not bel ieve the Defendant would have do ne something like this.

The Defendant was interv iewed for t he first time on November 7, 1993 by R onald Wilk inson , assig ned to the Ho micid e Bur eau a t the Me mph is Poli c e Depa rtment. W ilkinson tes tified that De fendan t told him th at the victim tripped and fell on the f ireplace. The vict im stopped breathing, so the Defendant began admin istering C PR.

Richard Roleson, als o an officer of the Homici de Bureau, test ified t hat he interv iewed the Defendant for the second ti me on November 8, 1993, and they went over theevents of November 6, 1993 severaltimes. Duri ng this di scussion, the Defend ant change d his story several t imes, butultimate ly admitted that on November 3, 1993, he whi pped the vict im after shehad broken a glass. When the victim sli d out of the Defendant’s grasp, he hi t her until she got st ill and grabbed herby the back of the neck. The Defendant said the vi ctim fel l, and he kicked her in her l eft side . In hi s statement, the Defendant admit ted to gett ing out of con trol. The Defendant again spank ed the victi m on November 6, 1993, the day of the v ictim’ s death. On cro ss-examinati on, Roleson admit ted that he told Defendan t that no o ne had been electr ocuted in Tennessee si nce 1962 or 1963, but that the State might cra nk it up again an y day.

The autopsy of the victim was perf ormed b y a ped iatric fore nsic patholo gist, Violette Hnilica. She testified that there were vari ous abrasions and contusionson the vict im’s twent y-fiv e (25) pound body, as well as a t ongue hemo rrhage. The fleshy t issue between t he lip and t he gum was to rn. Ce rtain-7-

i njuriesshe observed were not consistent

with a fal l, but wer

e cons istent w it h being hit

at s kin sur

face fr om some other angle. The victi m’s lower abdominal
re gion had multipl e contusions, with nineteen (19) separ ate contusi ons on the trunk area of the victim’s bo dy. The contusions i n the lower left chest region we re of a consistent pattern . In her internal exam , Dr. Hnilica testifi ed that ther e was old blood in the abdomen, brownish and disintegrat ing. This was u n usual as there is no free blood in a healthy abdomen. The old blood in t he abdomen was indicative thatthe victim sustained the injuries approxim ately three (3) days prior to her death. All the v ictim’ s left organs had contusi ons. She had fi ve broken ribs. These i njuries wer e of a patte rn consistent with the i nside part of the heel of a shoe. Dr. H nilica found ove r fift y (50) i mpact sites on t he child. The liver
was completely lacerated f rom the abdomen , which wa s consis tent with
c ompres sive frontal pres sure to the body. While the l iver lacerat ion wo ul d
norm ally be fatal in and of i tself, in Dr. Hnil ica’s opi nion, the victim d ied of m ultiple blunt force inj uries.

The defense offered vari ous witnesses who testifi ed as to seeing Valerie Goo dwin spa nk t he v ict im a nd grab other friends’children on prior occasions. Some defense wit nesses testified that t he Defendant was not at home on the day of N ovember 3, 1993, al one with the victi m, but that t he Valerie Goodwi n wa s there w ith the vic tim on that da te. Th e Def enda nt did n ot testify a t trial.
According to Tennessee Code Annotated sec tion 39-15-4 02, a perso n is guilty of agg ravate d child abus e whe n suc h abu se res ults in seriousbodily injury to the child. The offense of child abuse is defi ned as “ . . . any person who knowingl y, other than by acci dental means, t reats a chi ld under ei ghteen (18)-8-

years of age i n such a manner as to inf lict injury or neglects such a chil d so as to adver sely affect the child’s health an d welfare . . .” Tenn. Code Ann. § 39-15- 401(a). Under Tennessee Code Annotated section 39-13-202(a)(2), fi rst degree murder is the ki llingof another in the perp etration of o r the attem pt to perp etrate aggravated chi ld abuse.
By his own statement, Defendant admitted committing such acts of abuse which ultima tely resulted in the dea th of the victim
. Furthermore, the testi mony of Dr. Hni li ca, thecoroner who p erforme d th e aut opsy of t he v ict im, con fi rms that the victi m died of multi ple blunt traum a injurie s, con sisten t with the Defe ndan t’s statementthat he ki c ked the vic tim and the pat

tern of i njury consi stent wit h a shoe on the victim’s left side. There fore, there is sufficient evidence in the record fora rationaltrier

of fact to f ind the Defendant committed first degre e mu rder in the perpetra tion of agg ravated c hild abus e resulting in the dea th o f t he v ict im. The Defe ndan t has n ot me t his burden of proof regarding t he insuff iciency of the evidenc e. This iss ue is witho ut merit.

II. ADMISSI ON OF DEFENDANT’ S STATEMENT

The next issu e the Defendant r aises is t hat the trial court erred by refusing to suppress his statementof November 8, 1993, in which he admit ted that he “got out ofcontrol”

and kicked the victi m in her lef t side on November 3, 1993. The trialjudge found at th e suppression hearing that t he statement was voluntary and not due to any co ercion.-9- The party whi ch prevail s in the t rial cou rt is en titled to the strongest legitimate viewof the e videnc e as w ell as all reasonable i nferences drawn f rom thatevidence adduced at the suppre ssion he aring. State v. Odom , 928 S.W.2d 18, 23 (Tenn . 1996). The trial court’s findings wi ll be upheld unless the evi dence prepon derates otherwis e. Id
.

It is the defe ndant’s d uty to have prepa red an ade quate record in order to allowa me aning ful review on appea l. Tenn. R . App. P. 2 4(b); State v. Bunch , 646 S.W .2d 158 , 160 (T enn. 19 83); State v. R oberts , 755 S.W.2d 833, 83 6 (Tenn. Crim. App. 1988). While the Defendant failed to include t he entire record of the supp ressio n hea ring as part of th e reco rd on a ppea l, an ample account of the proceedingswere in clude d with th e Def enda nt’s ap peal fo r this Court to make
a fair and meani ngful eval uat ion of such proceedings. Tenn. R. App. P. 24( b) ; see State v. Ballard , 855 S.W .2d 557, 560 -61 (Tenn . 1993).

In determ ining whe ther a sta temen t is made voluntarily, this court must lookto t he totality of t he circumstances s urrounding t he confession, and the standard is whether “ the behavi or of the st ate’s l aw enforcement off icial s was such as to overbear

petiti one r’s will to resist and bring a bout confessi ons not freely self-determined .” State v. Kelly , 603 S.W .2d 726, 728 (Tenn. 198 0). In the
case sub judice , the Defendant was told after being read his Mi randa r ights by Roleson, the police of ficer i nterrogat ing him, t hat the possible penalti es for first degree murder were eit her death or l ife impri sonment. The poli ce officer furt her informed Defendant that the death penal ty had not been carried out in Tennessee since 19 62 or 19 63, but tha t it might start b eing carr ied out at a ny time.-10- The Defendant refer

s to an earlier

case which was ci ted in Kelly in which the defendan t was prom ised by a po lice of ficer t hat if he were to confess , the prosecution would not ask for the “electric chair.” See Ford v. S tate , 201 S.W.2d 539 (Tenn . 1947). T he state men t the offic er ma de to D efend ant is disting uisha ble in that such a st ateme nt regar ding th e pos sible p enaltie s cou ld not be in ter preted as a promi se of

leni ency in exchang e for the Defe ndan t’s confession. I n f act, the officer m ade n o ass uranc es reg arding the pro bable punishment forthe Defendant i f he were to be convicted. The totali ty of t he circumstancessurrounding t he Defendant’s confession were n ot suc h that w ould overbear

the Defe ndan t’s will. Gr eat de ferenc e is give n to a tria l judge ’s determinati on that a confession was given voluntarily and without coercion because the trialjudge sees and hears the witnesses w hil e appe llate courts examine only a “cold record.” Lowe v. S tate , 584 S.W.2d 239, 241 (Ten n. C ri m. App. 1979). The tr ial j udge found that the Defendant’ s confession was not coerced, and th at the s tatem ent the officer to ld to Defendant r egarding the poss ible punishment did not make Defendant incr iminate h imse lf in his statem ent. A care ful revie w of the record in this case fail s to convi nce us that the evidence preponder

ates against

the findi ngs of the t rial j udge.-11- III. LETTER WRITTEN BY VICTIM’ S MOTHER

The Defenda nt argues that the trial court erred by ref using to al low a letter written by the victim’s m other to be admitted i nto evidence. It is well established thatthe decisi on to admit or exclude evi dence is lef t to the s ound discret ion of the trialjudge and the trialcourt’s deci sio n will not be dist urbed unless i t has been arbitra rily exercise d. State v. Baker , 785 S.W .2d 132, 134 (Tenn. Cri m. Ap p. 1989); State v . Hawk , 688 S.W .2d 467 , 472 (T enn. C rim. App . 1985).

The letter

which Defendant s ought to have admi tted int o evidence read: To Whom it May Concern: I am wr it ingthi s l etter a ski ng for l eni ency in thema tter of M r. Terrence LeRoy Davis. I am the mother of t he deceased. I feel this w hole case is being blown out of proport ion. I don’t feel it i s a murder case. I feel tha t what h appe ned if anythin g was accide ntal. I would g reatly app reciate this if the Cou rt took this into considerati on. Thanks, /s/ Ms. V alerie G oodw in
The letter fro m Va lerie G oodw in dea ls with tw o sub jects, le nienc y and g uilt
or i nnocence, respect ively . Any language i n the letter regardi ng leniency i s irrel evant as to g uilt or inn ocen ce an d inste ad is re le v ant to pun ishme nt. There fo re, the contents of the l etter r egarding leni ency are ir relevant and w er e correctly ex cluded from trial.
During the trial, D efend ant ca lled Va lerie Goodwin to the stand as his own witness, but no evidence was i ntroduced to s how that she had per sonal knowledge of the matte rs surroundi ng the victi m’s death on the ni ght of-12-

November 6, 199 3. The witnes s’s opinions about whether the v ictim’ s death was
a n a ccident a re irrelevan t. Furtherm ore, Go odwin w as allowe d to testify regarding her opinio n that “[she] coul d not beli eve [Defendant]could do something like t hat,” and “ if anyt hing had happened [to the vic tim], it was an acciden t.” Defendant argues t hat the letter the tri al court ruled inadmissi ble was
necessa ry for his theory of defense. The let

terwould only be cumulative t o her statem ents alread y introduced into evi dence by the Defendant. These statem ents were heard by t he jury and the trialjudge, th ereby all owing the Defendant to provi de evidence i n the record of his theory

of defense. This issue has no merit.

IV. ADM ISSIO N OF PHO TOG RAP HS O F TH E VICT IM

Defendant argues that the tri al cou rt erred by perm itting the Sta te to introduce into evid ence certain photo graph s of the victim , incl uding o ne pho to of the victim when she was a live and seve ral autopsyphotographs. The admissibi l ity of photographs is in t he sound discret ion of thetrialcourt, and, absent a show ing of clea r abuse , this Cou rt is not to interfe re with the trial cou rt’s exercise of that discre tion. See State v. Van Tran , 864 S.W.2d 465, 477 (Tenn. 1993). A photo must be rel evant to an i ssue thatthe j ury must decide and the probative value of the photograph must outweigh any prej udicial effect thatit may have upon the trier of fact befo re a pho tograph may be admitted into evidence. State v. Auco in , 756 S.W .2d 705 , 710 (T enn. C rim. App . 1988), cert. denied , 489 U.S. 1084 (1 989); State v. Braden , 867 S.W .2d 750, 758 (T enn. C rim . App. 1993).-13- A. IDENTIFIC

ATION PHOTOGRAP H OF VICTIM

Defendant contends that the photog rap h of the victim , used by the State foridentificatio n purposes and admitted into evi denc e, constit utes reversi bl e error by the tri al court as any of the other photog raphs use d by the State co uld have been used for i dentifi cation purposes. Defendant argues that such a picture of the young victim w as un duly pr ejudic ial as it motivated t he jury to seek vindi cation forthe victim’s d eath. Upon review by th is court, the finaljudgment of conv iction shou ld not be set aside unless the error m ore probably than not aff ected the judgment or resultedin prejudice to the judicial pro cess. Ten n. R. App. P. 3 6(b).

Wh ile it woul d have been better if the “before” picture of the vict im had been exclud ed from eviden ce, it ad ded lit tle o r nothing t o the sum totalof knowled ge of t he jury. See State v. Dicks , 615 S.W .2d 126 , 128 (T enn.), cert
. denied , 454 U.S. 933 ( 1981); see also State v. S trouth , 620 S.W.2d 467, 472 (Tenn. 1981); State v. Richardson , 697 S.W.2d 594, 59 7 (Te nn. Crim. App. 1985). The photograph in question is nothing moretha n a s naps hot of t he v ict im. Defendant has failed to provi de a basis for findi ng that this p ho tograp h wou ld generate sym pathy or prejudice him. After a review of the en tire reco rd, and in
con siderati on of the profuse evidence of t he Defendant’s guilt, the introduct io n of th is ph otograp h of the victim was no t prejudicia l error. See , e.g. , State v. Horton , Lexis 105, Shel b y County (Tenn. Cr im. App., Jac kson, fi led Feb. 10, 1988) ( perm . to appeal d enied ); State v. Beckham , C.C. A. 02C0 1-940 6-CR00107, Sh elby County (T enn. Crim. A pp., Jackson , Septemb er 27, 1995).

B. AUTOPSY PHOTOGRAPHS-14- The Defend ant next ar gues that t he trialcourt err ed by admitti ng three differ ent autop sy pho tograp hs of th e victim into evid ence whic h he c laim s are ov erly preju dicial. The State sought t o introduce into evi dence four autopsy photographs. While three of t he photographswere admitted into evi dence, one photograph showing an inci sion from th e victim’s mid- chest to the naveland the old, brown blood inside the victim ’s bod y was ru led ina dmis sible by the trialjudge. This photograph was determined as more prejudic ial than probative by the t rial judge. Photographs of a corpse are a dmis sib le in murder pr osecutions, if they
are relevant to is sues o n trial, notwiths tanding th eir grues ome and horrify ing character. State v. Banks , 564 S.W.2d 947 (Tenn. 1978). If they are not

relevant to prove som e part of the prosec ution’s ca se, they m ay not be admitted solely to inf lamethe jury

and prejudi ce them against t he d efe ndant. Id . For the co urt to de te rmine wheth er the p rejudic ial effec t of the p hotog raphs outwe ighs th eir probative value, t he matters to be co nsidered i nclude the val ue of the photographs as evidence, thatis, their accuracy and clarity, whether they w ere taken prior to the corpse bei ng moved . . . t he inadequacy of testimoni al evidence relati ng facts to the jury and the need for evidence to establi sh a prima facie case of guilt or to reb ut defen dant’s co ntentions
. Id . at 948.

The first pi cture is a photograph of an i ncision cu t into a bruise on t he victim’s buttoc ks. Whil e th e photog rap h is qui te v iv id i n it

s de tai ls of a

gru esom e crime, it is

not rende red ina dmis sible m erely beca use th e sub ject po rtrayed could be describe d in word s or the ph otograp h may b e cum ulative. Collins v. S tate , 5 06 S.W.2d 179, 185 (Tenn. Cri m. App. 1973). The State used this par ticula r photograph for the expert wi tness t o illustr ate to the j ury that the bruiseon the victim’s buttocks was deep, indicat ing a more extensive injur y, and that it

was an-15-

older bruise due to the depth of the blood asshown in the incision. Expert testimony

of th e St ate placed the fatal injuries occurring from two to five days prior to the vi ctim’s date of death, and the il lustrat ion of theage and severit y of the bruises is cons istent with the State’s theo ry of aggravated child abuse by the Defen dant. While such a photograph may be vi sually di sturbing, the photograph was not so prej udicialas to outwei gh its prob ative value in determin ing the age and severit

y of the bruise.

The two other photographs t he D efend ant arg ues w ere err oneo usly admitted into evi dence are pict ures ofthe victim’s live r. The trialcourt found that such photos were not so disturbing as to b e und uly prejudic ial, andthe photos of the liver were probativ e in the proof of the el ements of aggravated child abuse. The State’s ex pert witne ss used these ph otograp hs to demo nstrate the severity of the victim’s in juries, and to illustrate tha t th e tear which oc curred two to five days prior to the vict im’s death was cons istent with the De fendant’s statement abou t beatin g and kicking the victim on No vemb er 3, 199 3. The admis sion into evidence of these photographs by the t rial cour t was not an abuse of discreti on, and this iss ue is witho ut merit.

V. ADMISSI ON OF LAY OPI NION TESTI MONY

The Defendant contends that the t rial court e rred by perm itting a c ousin of thevi cti m to test if

y asto h er o pin ion of t he De fen dant’s dis cip li ne of thevi cti m. If a witness is not te stify ing as an expert , the wit ness’s test imony in the form of opinionsor inferences is limited to those opinion s or inferences w hich are rationa lly based on the perception of the wit ness a nd helpful to a clear-16-

understandingof the w itness ’s testimony or the determinat ion of a fact in i ssue. Tenn. R. Evid. 701. If the testimony of the witne ss describes hi s or her observati on s in the for m of an opinion becau se it i s the only way in which t hey
can be clearly d escribed , then there is an exce ption to this g eneral ru le. National Life & Acci d ent v. Follett , 168 Tenn. 647, 80 S. W.2d 271, 274 (Tenn. 1935) (testi mony that a footprint i n the snow looked like som eone h ad slippe d); State
v. Brown , 836 S.W.2d 530, 550 (Tenn. 1992) ( nurse’s testimony that an injury

on the victim’s foot looke d like a ciga rette burn ); State v. Mabon , 648 S.W.2d 271, 274 (Tenn. Crim . App. 1982 ) (testimony that a su bstance ap peared to be blood).

At trial, the vict im’s cousin testifi ed that whil e she live d with the victim she witnessed several i ncidents where the Defendant di scipli ned the v ict im. She ultima tely told other famil y members that such discipl ine by the Defendant was too strict . This test imony fits within the p arameters of t he exception t o the general rule; her

opinion of

the Defe ndan t’s disciplin e of the victim w as the only way for her to clearly describe her

observances. Thi s Court cannot f ind thi s a s revers ible error, particul arly i n light of this cousin’s earlier testimonyin which she described the Defenda nt’s repeated disc iplineof the vi ctim for ev ery li ttle t hing she did. There was no abuse of discretion by the trialjudge in allowing such testimon y.

VI. ADMISSION OF JENCK S ACT MATER IAL OF DEFENS E INVE STIGATO R

De fendantargues that the trial co urt erred b y requiring the Defe ndant t o providea copy of his p rivate investig ator’s repo rts to the S tate as “Je ncks A ct”-17-

materials. After a wi tness has test ified , the part y who offered the witnes s, on motion of the o ther pa rty, mu st prov ide the movin g party with an y witnes s’s statementthe offering party has in thei r possession that rel ates to the testimony of the witness. Tenn. R. Cri m. P. 26.2(a). A statement incl udes: (1) a wr itten stateme nt made by the witness that is si gned or otherwise ad opted or app roved by the witne ss; or (2)a substanti ally verbatim recital of an oral statement made by the witness that is recorded contemporane ously wit h the making of the oral statement and t hat is conta ined in a sten ograp hic, m echa nical, electrical, or o ther reco rding or a transcriptio n thereo f. Tenn . R. Crim . P. 26.2(g ). W hile this Court

concludes that

requiri ng the Defendant to provide these re ports to the State was erro r, such err or was h armles s in that the re was n o prejud ice to the De fendan t.

The statements at

issue were notes a private invest igator took as she interv iewed witnesses for the Defenda nt. These n otes were later t ranscribed as
a record of her

interv iews ofthese wit nesses. There i s no evidence in the re cord thatthe state ment was adopted or app roved by thewitness. Rule 26.2 was forme rly a part of Rul e 16. In an earlier c ase u nder R ule 16 , this Co urt held that
a summ ary of a witnes s’s pre-t rial statement woul d only be subj ect to i nspection under the “Je ncks Act” if it was in writ ing and was signed, adopted or approv ed by the witnes s. See State v. Robinson , 618 S.W.2d 754, 759 (Tenn. Cri m. App. 1981). The notes the inves tigator made while interviewi ng the witnes s do not qualify under the defi nition of a “substa ntially verbati m recital” of a witnes s’s oral statementunder Te nnessee Rules of Crim inal Procedu re 26.2(g). See State v. Payton , 782 S.W.2d 490, 494-95 (Tenn. Crim. A pp. 198 9); see State v. Farmer , N o. 88-282 -III, Da vidson County (Tenn. Crim. App. , Nashvil le, fi led November 17,-18-

1989) (Rule 11 appli cation deni ed, January 2 9, 1990 ). Wh ile the private investig ator’s report should not ha ve been subject to the “Jencks Act,” any such
error by the trial court

was harmless. Defendant’s at tor ney st ated to the trial court that the r

eport was not

detrimentalto the Defendant . Therefore, Defendant did not suf

fer any prejudice i n turning ov er the repor

t to the State.

VII. ADMINI STRATI ON OF OATH TO GR AND JURY FOREPERS ON

The final issu e Def enda nt raise s is that the trial c ourt er red by swea ring in
a grand jury forepe rson in view of the jury. The Tenn essee Rules of Cri minal Procedu re provide fo r an oath to be adm iniste red to al l members of the gr and jury, includi ng the foreperson. T enn. R. Crim . P. 6(a)(4). A separate subsect ion of Rule 6 provides th at every member of the grand ju ry shallkeep secret t he proceedingsof that bod y. Tenn. R. Cri m. P. 6(k)(1) . Defendant ar gues that t he swearing in of t he foreperson of the grand ju ry by the t rial j udge in the presence of the D efendant ’s jury wa s preju dical a nd in vio lation o f the rule of sec recy in proceedings.
The purpose of secrec y for gran d jury pr

oceedings is t

o

imbue the g ran d jurors with a sense of conf idence and security so thatthey may dischar ge their dut ies wit hout apprehensi on of any hurt from an accused or some oth er person; to secure the utmost freedom of disclosure of alleged cr imes by prosecutors; to con ceal the fact that

an indict ment has been found against an accus ed who is not yet i n custody; t o prevent per

jury and subornation of perjury to the exten t t ha t, if testimony given before the grand jury we re known, the accused or a confederate might attempt to dispr ove it by pro curi ng false testimony; and t o protect an accused citi zen from public disgrace in a case where th ere is not e nough evidenc e to support a cri minal charge.-19-

Rippy v. State , 550 S.W.2d 636, 642 (T enn. 19 77), (quoting 1 Wharton, Criminal Procedu re (Torcia 12th Ed. 1974), § 2 21 at 488, 48 9).
Ob viously, the sw earing in of the grand jury fore perso n is no t within th e purpose of the rule for secrecy. Therefore, t here was no error by the tri al judge when he administer

ed the oath to the foreperson of the grand ju ry in vi ew of the Defe ndan t’s jury. Furthermore, we find that t he adm inistration of s uch an oath in the presence of

the Defen dant’ s jury was not prejudical to the trialof the Defendant in any way. The jury was i nstruct ed that the indict ment against t he Defendant issued by the g ra nd j ury was n ot eviden ce of the D efenda nt’s guilt. It is presum ed that the jury followed the trial cour t’s instruction s. State v. Lawson , 695 S.W .2d 202 , 204 (T enn. 19 85). Th is issue ha s no m erit.-20- We affirm the ju dgme nt of the trial co urt.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JOSEPH B. JONES, Presiding Judge

___________________________________ PAUL G. SUMMERS , Judge