### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs J uly 2001 Sess ion

STATE OF TENNESSEE v. WI LLIAM J. FORD

Direct Appeal from the Criminal Court for Shelby County

No. 99-11016 Chris Craft, Judge

No. W2000-01205-CCA-R3-CD - Filed July 12, 2002

A Shelby County grand jury indicted the defe ndant for first deg ree mur der, and the State elected to seek the death penalty

in this case. Followin g the g uilt phase of the defendant’s bifurcated trial, the tr ial j ury convi cted h im as c harge d. At the cl ose of the sentencing phase, the trial jury further found that the eviden ce supported the existence of the alleged ag gravating factor but concluded

that this factor did not outweigh the mitigating factor s. The jury, there fore, sentenced the defendant to serve a life term without the possibility of parole. Subsequently, the defe ndant filed a

new trial motio n which the trial court denied. On appeal, the defe ndant contends (1) that the evidence is insufficient to support his conviction; (2) that the tr ial cour t erred in barring him from the courtroom because of his outbursts in the jury ’s presence; (3) that the trial court err ed in not declaring a mistria

l after d eciding that the d efenda nt could notbe prese

nt at his tr ial beca use of the se outbursts ; (4) that the trial cou rt erre d in admitting three letters written by the defendant; and (5) that the prosecution, in its closing argument, impermissibly shifted the burden of proof to the defense by commenting on a witness mentioned by the defe nse in its opening statement but not called to testify
at trial. Upon reviewing these issues, we f in d that none merit relief and, therefore, a ffirm the defendant’s conviction.

Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cr

iminal Cour

t is Affir med.

J ERRY L. S MITH , J., delivered the opinion of the court, i n which D AVID G

. H AYES and A LAN E. G LENN , JJ., joined.

Gerald Skahan, Memphis, Tennessee, for appe llant, William J. Ford.

Paul G. Summers , Att orney Gene ral & Repo rter; Ma rk E. Dav idson, Ass istant Atto

rney Ge neral; William L. Gibbons, District Attorney General; and David Henry, Assistant District Attorney General, for appellee, State of Tenne ssee.1 Th e reco rd co ntain s differ ent sp ellings of the vic tim ’s na me; however, in t his opini on we will use t he one utilized in the in dictm ent.

2 This w itness is also referred to as T iffany D obb ins.

3 De rrick L ew is tes ti fie d for t he defens e at tri al r egardi ng the de fendant ’s c onsumpti on of al cohol i n the hours prior to the murder.

4 Since the de fendant

does not

chal lenge his sent ence, we will not s umm ari ze t he proof from the sent encing pha se.

-2- OPINION

Factua l Background On February

4, 1999, the vict im, Dilant hious Drumwright
, 1 was a high school student walking from

school wit

h a group of othe

r y oung pe ople of va

rious ag es. Within this group were Soibhan Fleming, Tiffany White, 2 and Alfonzo Bowen. In orde r to avoid a potential confrontation resulting from an a

ltercat ion which had take n place f urther u p the str e et on the previous day , the students h ad left th

e stree t they would hav e ordina

rily traveled. Nevertheless, two vehicles pulled up near the group. Demond Gardner drove the car in whic h the defend ant and Jerry Joy ce were riding. Chris Lewis drove the other vehicle with his brother Derrick L ewis as a passenger. 3 Flemi ng, White, Gardner , J oyc e, and Bowen testified for the State as ey ewitnesses to the incident

. Gardner related that the defenda nt had left Gardner’s car and obtaine d a weapon fro m
someone in Chris Lewis’ vehicle prior to the shooting. All five witnesses identified the defendant

as the shooter and recalled that multiple shots had been fired. B owen, in fact, stated that he had heard nine or ten shots, and Officer Sherman Bonds of the c rime scene unit testified that he had recovere d nine spent shell casings and one live round in the immediate area

. Additionally, numerous individua ls testified concerning threatening comments made shortl y before the shooting by the defendant or other s in the au

tomobiles. It was determined that one of the shots h ad hit the

victim in the back resulting in his death. After firing the

weapon, the defendant returned to Gar dner’s car, and both vehicles left the

scene. Gardner recounted that he there after drove the d efendant to Chris Lewis’ house, whe re the defendant left the car taking the weapon with him. When the defe ndant returned

shortly thereaf

ter, Gardner saw no weapon. He then took the de fendant to the defendant’s home. Following the defendant’s arrest for this crime, the defendant composed and sent three letters
to Gardner. These letters instructed Gardner to relay to various potentia

l defens e witnesswhat thei r testimonies should inc lude and t o threat en fema le witnes ses involved in the case. Gardner turned these letters o ver to the

authoriti es befor

e the def endant’ s trial, a

nd all thre

e were later ad mitted in that p roceed ing. After hearing the above-outlined and additional poof, the jury convicted the de fen dant of f irst degree murder and, at the conclusion of the sentenci ng phase of the trial, sentenced him to life without parole for the offense. 4 In this appeal the defenda nt raises the aforementioned challenges to his conviction.-3- Sufficiency

Through his first issue the defendant asserts that the evidence is insuffi cient to su

pport his conviction for first degree murder. Mor e specifically , the defen d ant alleges that the State did not meet its burden of proof regarding premeditation. When a defendant challenges the sufficiency

of the evidence, this Court is obliged to review th at c laim according to certain well-settled principles. A verdict of guilty , rendered by a jury and “approved

by t he trial j udge, a

ccredits the test

imony of the” St

ate's witnesses a

nd resolv es all conflic ts in the testimony in favor of the State. State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994); Statev. Harr

is , 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked witha presumption of innocence, the jury verdict of g

uilty removes this presumption “and replaces i twith one of guilt.” State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof

rests with the defe ndant to de

monstrate the insufficiency of

the convicting evidence. Id

. The rele

vant ques tion the re

viewing court mus t answer

is whether any

rational trier of

fact could have found the accused guilty of every e lement of the offense bey

ond a reasonable doubt. See Tenn. R. App. P. 13( e); Harris
, 839 S.W.2d at 75. In making this decision, we are to a ccord the State “the stronge st legitimate view of the evidence as well as all reasonable a nd legitimate inferences that may be drawn therefrom.” T uggle
, 639 S.W.2d at 914. As such, this Court is precluded from reweighing or reconsidering the evidence in evaluating the convicting proof. State v. Morgan , 9 2 9 S.W.2d 380, 383 ( Tenn. Cri m. App. 199 6); State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Cr im. App. 1990). Moreover, we may not substitute our own “inferences for those drawn by the trier of fact from circumstantial evi dence.” Matthews , 805 S.W.2d at 779. While the trier of fact must be able to “determine from the proof that all other reasona ble theories except that of guilt are excluded,”

a criminal offense may

be estab lish ed exclusively by circumstantial evidence. State v. Jones , 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995) ; see also
, e.g ., State v. Tharpe , 726 S.W.2d 896, 899-900 (Tenn. 1987)

. Turning to the law regarding pre meditation, Te nnes see Code Annotated section 39-13- 202(a)(1) defines first degree murder as the “premeditated and intentional killing of another.” Tenn. Code. Ann. § 39-13-202(a) (1). Furthermore, Tennessee Code A nnotated section 39-13-202( d) states : As used in sub division (a )(1) “p remedita ti on” is an act done after the exercise of reflection and judgment. “Premeditation” means that the inten t to kill must

have been formed prior to the act

itself. I t is not nec essary

that the purpose to

kill pre- exist

in the mind o f the acc used for any definite period of time. The mental state of the accused at the time the accused allegedly decided to kill must be carefully considered in order to

determine whether the accused was sufficie ntly free f rom excitement and passion as to be capable of premeditation.

Tenn. Code Ann. § 39-13-202(d).

The existe nce of this element remains a question for the jurors to determine a nd may be established by proof of the manner and circumstances of the killing. See Statev. Pike , 978 S.W.2d 904, 914 (Ten

n. 1998); State v. Gentry , 881 S.W.2d 1 , 3 (Tenn . Crim. App. 1993). Factors which tend to establish t he existence of premeditation “include: the use of a deadly weapon upon an5 Gardner r ecounte d that the de fendant

had sai d, “[ G]et t

hem hooks” pri or to t he sh ootin g. Th is witness explained that the statem ent m eant “do som ething to” Vice L ords. Fur th er more , Wh ite i ndi ca te d t hat “LMG” st ood for the neighborhood known as “Lemoyne Garden”; thus , s he expl ained “LMGK ” ref erre d to ki ll ing thos e who are f rom that neighborhood.

-4- unarmedvictim; the

particu lar cru elty

of the kill ing; dec laration s by

the defe ndant of a n intent to k

ill; evidence of procurement of a weapon; preparations before the killing for conc ealment of the crime, and calmnes s immediat

ely after the killing.” State v. Bland , 95 8 S .W .2d 651 , 66 0 (T enn . 19 97) . In addition, State v. B ordis , 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995), provides that a jury faced withre so lv in g t hi s q ue st io n a ls o m ay utilize facts raising the inference of a motive a nd/or the implementation of a preconceived design. In the instan t case the proof supports a finding of at least three of these factors. First, the defendant shot the unarmed victim in the back as the vic tim walke d away from the d

efenda nt. Second, Bowen indicated that the defen d ant had said “LMGK” a nd “VLK” prior to firing the weapon. Mu ltiple witnesses had explained that “LMGK” meant “L emoyne Ga

rden Killer” and “VLK” meant

“Vice Lord Killer.” Thus, the defenda nt had ar guably announc ed himself

to be a killer before taking t

he victim’ s life. Mor

eover, t he comme

nts sugge st

a gang-relate d motive. 5 Third, the defendant left the vehicle in which he had been riding and procured a w eapon fr om someone

in Chris Lew is’ car which was parked near by. Fac ed with this evidence, we find s uffic ient proof of premeditation. As previo usly noted, fi rst deg ree mur der also involves the “intentional killing of another.” See Tenn. Code Ann. § 39-13-202(a)(1). Within the latter portion of the defendant’s argument for this issue, he

contendsthat the Sta

te additionally failed

to prove t hat he ha d acted with the inte

nt to kill. To support this assertion, the defendant cites his alleged intoxication; questions that thejurors askedthe court during their deliberations; the fact that only one person in the group had been hit (and this by a single

shot); testimony that the wea pon wa s pointed in the air; and an alleged heated exchange preceding the shots. Concerning the defe

ndant’s a lleged intoxicatio n, the tria

l court instr

ucted the jury that voluntary intoxication can be found to negate the requisite mental state. In a ddition, De

rrick L ewis didtestify at trial that the def endant had been intoxicated at the time of the offense. Howeve r, while Gardner testified that the defendant had bee n drinking then, Gardner added that the defendant had ap peared in control and not intoxicated. Furthermore, an officer who had seen the defendant approxima

tely two to three hours after the offense indicate d that the defenda nt h ad not appeared int oxicated. For example, the officer stated that he had not detected an odor of alcohol on th e defenda nt, nor had he noticed

any slurring

of the defendant’s speech. Resolving all conflicts in favor of the State, the jury could we ll have determined that the defendant’s ability to take pa

rt in an intentional killing had not been negated by

voluntary intoxication. See
, e.g ., State v. H all , 8 S.W. 3d 593, 600 ( Tenn. 199 9); State v. Brooks , 909 S.W.2d 854, 859 (Tenn. Crim. App. 1995). The record

also indic ates tha

t the juror s asked th

e trial c ourt tw o questi ons during their deliber ations. Essentially, the

jury asked 1) w

hether the law required an “ intentto shoot or an intent
to kill”; and 2) whe ther the law would hold a person responsible for the conseque nces of an act thou gh the person did not desire the spe cific o utcome “if a reasonable person should have known his or her a

ctions could produc e those r esults.” To these inquiries the trial court provided written-5-

responses reflecting the state of the law. From our review the questions signify the jury’s thoughtful analy sis of the facts, and their verdict demonstrates that they rejected alternative theories to that of the defendant’s guilt of first degr ee murder. Bri efly addressing the remaining points urg ed by the def endant on this issue, we r emai n unpersuaded. The rec ord re flects little proof of a heated exchange pr eceding the shots but rather provides more than one statement indicating that the members of the victim’s g roup were walking away from and ignorin g the de

fendant ’s incen diary

comments. Furthermore, the testimon y reg arding whether the wea pon was po inted in

the air isopen to int

erpret ation, an d even if

the defendant had origina lly pointed the weapon up in the air, he obviously later lowered it, firing into a group of young people; otherwis e the vic tim would not b e dead. Resolving all conf licts in favor of the prosecution,

we find ample support for the conclusion that the defendant announced himself as a killer; went to another car, obt ained a w eapon the

refrom; and then f

ired multi ple times killin g the victim with one of these shots. The se fact s support a finding of intent t

o kill. This issue lac

ks merit.

Excluding the Defendant from the Courtroom

The defenda

nt next ave

rs that the trial cou rt erred in barr

ing him from the c ourtroom

for his repeated int erruptio ns during the trial. Rule 43 of the Tennessee Rules of Criminal Procedure
, entitled “Presence of the Defendant”provides, in relevant part, (a) Presence Requi red. Unles s excused by the court upon def endant's motion, the defendant shall be present at the arraignment, at e very stage of thetrial including the impaneling of the jury and the return o f the ver

dict, and at the imposition of sentence, except as otherwise provided by this rule. (b) Continued Presence Not Requi r ed. The further progress of the trial to and including the return of

the verdict and imposition of sentence shall not be prevented and the defendant shall be considered to have wa ived the right

to be present wheneve r a defe ndant, initially

present : (1) voluntarily is absent after the trial has commenced (whether or not he or she has been informed by the court of the obligation to remain during the trial), or (2) after being warned by the court that disruptive cond uct will cause the defendant to be rem oved fro m the cour

troom, pe rsists in c onduct wh

ich is suc h as to justify exclusion f

rom the c ourtroom

. If a

trial proceeds in the voluntary absence of the defendant or after the defenda nt's removal from the courtroom, he or she must be represented

in court by competent

counsel; and, if the defendant has been removed from the courtroom, he or

she shall be give n reason able

opportuni

ty to communic ate withcounsel d

uring the t rial. If a trial is proceeding with the defendant excluded from the courtroom because of disruptive conduct, the court sha ll period icall y determine at reas onable

intervals whether the defendant will then s ignify

willingness to avoid creating a disturbance if allowed to return to the courtroom and shall permit such return when the defendant so signifies and the court reasonably

believes the defenda nt.

Tenn. R. Crim. P. 43.6 Even before this firs t outburst , the t rial court had heard t

hat the de fendant

might be pl an ni ng t o c au s e s ome form of trouble; thus, t he court had cau tioned the defendant that if h e di d no t f ol lo w p roce dur e, he w ould forfe it his “right to remain in t

he courtroom.”

7 Exclus ion for

the entir e tri al at

that poi nt may have been too severe i n view of t he afor ementione d provis ions of Rule 43(b)( 2) and t

he fact that the f irs t wit ness had yet to t est ify when t he court is sued this warning. Howe ver , we need not rule on thi s matt er as the e xclus ion occ urred c onside rabl y lat er i n the pr oceedi ng.

-6- Prior to causin g the dis turbanc es, the de fendant expres sed dissa tisfacti on with his

r epresentation and sought a continuance on the morning of jur y selection. When the continuanc e
was denied, the defendant made spontaneous proclama tions to the jurors on multiple occasions regar ding the unfair n ature of

his trial. In his first s eries of

statemen ts made be

fore the initial wit ness had been called, the defendant exclaimed: “The Cour

t’s f orcing me to go to trial. My attorneys ar

e against me. . . . They

haven’t

even contacted my witnesses. . . . I’m not ready to go to trial.” Thereafter the trial court had the jury removedfrom the c ourtroom and told the defendant that he could not continue to talk to the jurors. The trial judg e added

that if the

defenda nt persist ed, the ju dge wou

ld remove

him from th e proceeding or have him bound and g agged. 6 After the defendant indicated that he understood and after he stated, “That’s all I ha

d to say,” the jurorswere allowed to return to the courtroom. The trial
court apolog ized to them

for the d isruption, gave a

n overvie w of courtroom procedure rega rding speaking in court, and inquired whether they could disregard the outburs t. All a ffirmed that they could still fairly try

the case. Neve rtheless
, minutes later, the defendant again beg an making comments abo ut his counsel’ s alleged failure to contact witnesse s and the t rial cou rt’s for cin g hi m to trial though he was not prepared. In addition, the defendant announc ed, “My attorne ys [sic] out to railroad

me.” The trial
court once more had the jury

removed from

the courtroom; had a discussion with the defendant and the attorneys; and recei ved assur ances from the defendant that he would not cre ate a further disturbance. Prior to allowing the jury to r eturn, the trial court cautioned the defendant using indisputably clear lang

uage. For example, the trial court stated: But you understand

that if you make

another outburst, you

have wa ived your right to be in court, you will be ejected, and if y ou choose to testify in this case, I will bring you back in for y our testimony but I will not allow y ou to come back into this trial tomorrow or the next day . . . if y ou make another outburst, y o u have waived y our right to appear for the entire trial. . . . y ou can’t say another word in thi s trial wh

ile this jury’s in the courtroom without my permission. I

f you do, you’ve for

feited your right to be in her e on y our trial

. 7

The jurors returned; were instructed by the judge th at these

acts could not be c onsidere d releva nt to the State ’s case ; and ag ain indic ated tha t they could fa irly try the defe ndant. The trial pro ceeded, and numerous State witnesses testified. During more than one break while the jury was not pre sent, the trial cou rt thanked the defendant for his good behavior and repeated the conse quence s to be impo sed if he chose to create another disturbance. On one of these occasio ns, the defendant learned that Eric and De rrick Lewis were

p re sent. I

n seeking

his
cont inuanc e, the defe

ndant had complained that tr

ial couns el had fa

iled to pre

pare and call the se8 Chris Le wis w as the third de sired witne ss wh o w as no t present. However, in spit e of above-refer enced

tes ti mony indicat

ing t hat he had been pr esent when the cr

ime occur red, thi s i ndivi dual ha d given ast atement to t he police den ying that he had seen any thing relative to this o ffen se. Th e valu e of h is pote ntial test imony is, t herefore,
que stiona ble.

9 Th e trial co urt also note d fo r the re cord its belief th at t he def endant’ s l ates t out burst had occur red upon learning that

the all egedly desir ed witnesse s, previ ously mentioned as a r eason for needi ng a continuance, we re pre sent. The court furt

her opined that

since t hese indi viduals c ould no longer be used as a pr oposed gr ound for de layi ng the trial, the d efen dan t then attem pted to for ce de lay th rou gh “ delib erately trying to ask for a m istrial.”

-7- individua ls and another witness for trial. 8 Wh en the jur

ors retu rned, the defenda nt announced to them: “T he y’r e t ryi n g to railroad me. You don’t know what’s going on back there. They

haven’t prepared no defen se for me

in my behalf. I’m n ot ready

to proce ed to tria

l. They [sic] try ing to railroad me for real.” The trial court had the jury step out of the cour troom and then found that the defendant had waived his right to be present at trial. While announcing its findings, the trial court stated: This Court finds for the record that [the de

fendant ] has forf eited his r ight to r emain in this trial. [The defe

ndant] has a constitutional right to confront his witnesses. He does not have a

right to disrupt the se proceedings and make demonstrations in front of this jury. This Court also finds that he waited until all of the jury was in her

e .

. . and he purposefully, willfully tried to disrupt these proceedings. Therefor e, I find as

a matter of fa ct that [ the defendant], knowing what would happen, has freely and voluntar ily waived his right

to be present at his trial and I’m e xcluding him from the
courtro om. 9

Thereafter, defense

counsel m

oved for a mistria l, but the tri al court

did not gr

ant this request. The jury returned, and the trial court briefly explai ned what had

transpir ed and tha

t none of t

hese

occurrences were to

reflect on the defendant’s guilt or innocence for the charged crime. Fina

lly, the trial judge polled each

member of the jury

concerning whether he or she could “give the State a nd the defendant in this case a fair trial.” All asser ted that they could. Thou gh exclu ded from the courtroom, the defendant was plac ed in a room nearby where counsel could confer with him du ring breaks. Moreove r, the tri al judge

allowed t he defe ndant to
return at the beginning of the sente ncing p hase o f this procee ding. In all, four witnesses testifie d in the defendant’s absence: a crime sc ene unit officer, the medical examiner, a defense witness, and an officer briefly

called in rebuttal concerning the matter of intoxication. To support hi s argum

ent, the d efenda nt cites State v. Co le , 629 S.W.2d 915 (Tenn. Cri m. App. 1975) for the propositio n that the outburst must be violent and/or threatening to overcome an accused’s constituti onal rig ht to be present during his or her trial. However, our review re veals no such requirement nor would l ogic demand this. A defendant may not be allowed to continue speaking with the jury

at will, thereby impeding the orderly c onduct of the trial. In the instan

t case the defendant rec eived mul tiple war nings. H e state d that h e understood the ramific ations of

his continuing to engage in the disruptive beha vior. When given the choice between being bound and gagg ed or be ing remove d from the courtro om as an imp ending penalty should he pe rsist, the de fendant stated tha

t his pref erence would be r

emoval f rom the c ourtroom

.10 Since thi s was t rie d as a c apit al c ase, the j ury was obvi ously prese nt duri ng sent encing.

-8- The tr ial court gav e him an adequate opportunity to comply, and by

his actions the defendant forfeited his right to be present for the portion of his trial from which he was excluded. There has been no finding that he was not competently represented

by b oth of his a

ppointed a

ttorney s. These individua ls were able to confer with him during bre aks in the trial. In fact, the c ourt allowed the defendant to return to the cou

rtroom on some occasions when matters were being discussed but the jury was not pr

esent. F urthermo re, we h ave note d that the tr ial court pe

rmitted the defendant to
return durin g the en tire s enten cing po rtion of the procee ding. 10 We understand the trial court’s hesitancy in allowin g the de

fendant to return earlier in view of

the defe ndant’s p revious f ailure to keep his word a

fter pro mising no t to cause further disturbances. Under these circ umstances we find that t he tria l court has complied with the aforementioned Tennessee Rule of Criminal Procedure 43(b). See
, e.g ., State v. Ballard , 21 S.W.3d 258, 261-62 (Tenn. Crim. App. 2000) (recognizing that

a defendant may

be removed from a courtroom pursuant to the requirements of

Tennessee Rule of Criminal Pr

ocedure 43(b)(2 )). This i ssue, the refore , lacks me

rit.

Denial of Mistrial Following Exclusion From Court

Related ly, the defendant asserts that once the trial court re moved him, “it was incumbent upon the Court to grant

a mistri al due to the obvious prejudice to” him. According to established preced ent, the purpo se of a mis trial is to c orrect the dama ge done to the judic ial proc ess when some event has occurred that would preclude an impartial ve rdict. Arnold

v. State , 563 S.W.2d 792, 794 (Tenn. Crim. App. 1977). The dec ision whet her to g rant a mis trial is within the trial court's discretion and will notbe disturbed absent an abuse of that discretion. State v. McPherson , 882 S.W.2d 365, 370 (Tenn. Cr

im. App. 19 94). “Ge

nerally a mistria l will be declared in a criminal case only when there is a ‘mani fest nec essity ’ requir ing such action by

the trial judge.” St ate v. Millbrooks , 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991).
Our review l eads us to

conclude that no “m anifest

necessity requiring” a mistrial presented itself here. The trial court swiftly took action to remove the jurors when the defendant began eac h of his outbursts

. Mo re im po rt an tl y, the trial court instructed the jury that these incidents were not to be considered with respect to the defendant’s g uilt or innocence, and the court polled the jurors after each to e nsure tha t the indivi duals cou

ld still aff ord the de fendant a fair trial. As above-noted, the jurors a

ffirmed each time

that they could do so. In thi s situation

the trial court did not abuse its discreti on by

deny ing the d efenda nt’s motion

for a mist

rial; thus , this issue

lacks me rit.

Admission of Letters
The defendant further complains that the trial court err ed in allowing the State

to admit three letters written by the def endant to Gardner. Acc ording to the defendant, the trial court did not conduct a proper hearing conce

rning rel evancy

prior to admitting the letters. Additionally, the defendant asserts t hat the un fair pre judicial e ffect o f these docume nts outw eighed their probative-9-

value. To suppor

t this clai m, the defendant points to the letters’ mention of threats against witnesses and of gang activity. The def endant also alleges that the prosecution compounded the impact of the error b y r epeate dly refer ring to t he letter s in closing

argume nt. When dealing

with the a

dmission of

evidenc e, the pr

oposed pr oof must satisfy the

threshol d determination of relevancy mandatedby Tennessee

Rule of Evidence 401. This rule defines relevant evidence as that “having any tendency to make

the existence of any

fact tha t is of con sequenc e to the determination of the action more pro bable or less prob able tha

n it would be without the evidence.” Tenn. R. Evid. 401. Rule 4 03 adds tha t releva nt “evide nce may be exclude d if its pro

bative va lue is substantia lly outweighed by t he danger of unfair pre judice, confusion of the issues, or misleading the jury, or by

consider ations of undue delay , waste o f time, or needles s presentation of cumulative evid enc e.” Tenn. R. Evid. 403. And finally, Rule 404 deals with alleg ed “character evidenc e.” Subsection (b) of this rule p rovides that “[e]vidence of other crimes, wrongs, or acts is not admissible

to prove the char

acter o f a pers on in orde

r to show a

ction in c onformity

with the character trait.” Tenn. R. Evid. 404(b). However, the same subsection further sets out that such evidence may be allowed “for other

purposes” if the following conditions are met prior to admission of this type of proof: (1) The c ourt upon r

equest mu st hold a he aring o utside the jury ’s prese

nce; (2) The cour

t must dete

rmine tha

t a materia l i ssue exists other than conduct conform in g with a cha racter trait and must upon request state on the recor d the material issue, the ruling, and the reasons for a dmitting the evidence; and (3) The court must exclude the evidence if its probative value is outweighed by the danger of unfair prejudice

.

Tenn. R. Evid. 404(b). Providing further clarification concerning the second requirement, both the Advisory Commission Comment to this rule and case law state that the above-mentioned “other purposes ” include issues such as motive, intent, etc. See

, e.g ., State v. Parton , 694 S.W.2d 299, 302 (Tenn. 1985); Bunch v. State , 605 S.W.2d 2 27, 229 (T enn. 1980 ); Stat e v. Jones , 15 S.W.3d 880, 894 (Tenn. Crim. App. 1999). Should a review of the record indicate that the trial court sub stantiall y complied with the requirements of Rule 404(b), the trial court's admission o f the ch allenged evidence will remain undisturbed absent a showi ng that i t abused its discretion in admitting this evidence. State v. D uBose , 953 S.W.2d 649, 652 (Tenn. 1997).
As aforementioned, the contested evidence in the instant ca se involved three letters sent by the defendant to Gardner. Through two of these the defendant implored Gardner to pre vent Flemi ng, White, and Lori Smith from testify ing at the defendant’s trial. For example, the def endant instructed Gardner to “[s]care them [sic] girls and threatened [sic] them so they wont [sic] show up in court”; “[t]hem [sic] females got to go man

... take care of them [sic] females ”; “ [t]hreaten them but dont [sic] let them no [sic] who you is [sic] ... do what you g ot to do ”; etc. T he second of these

letters a lso included proposed testimony for def ense witnesses and brief mention of a gang . As an illustration of the former, the “P.S.” portion of this letter contained the following sugge stion: “You can say , Both [sic] of us shot[.] I shot first and You [sic] shot second then that will confuse the court when you say you shot.” F inally , in the thir

d letter w e find the

defenda nt providi ng state

ments for Gardner, Henry Campbell, Derrick Lewis, Eric L ewis, Johnn

y Ma rtin, and Chris L ewis . Th e defendant instructed11 The trial court obse rved , how eve r, that the jury c ould ma ke th e dec ision w heth er the scripts w ere ac tually

fal se ac counts of what ha d tra nspir ed.

12 M add ox h ad a c o-d efen dan t, No lan G . Pan key , in this ca se. See Maddox , 957 S. W.2d at 547.

-10- Gardner to state that he “saw a guy

pull up his shirt and reaching for his gun. [The defendant] went beside Chris [sic] car why [sic] he was I ntoxicated [sic] And [sic] Henry Campbell gave him a gun. [The def endant] fire [sic] a shot and broke out running.” Chris Lewis and Henry Campbe ll’s
statemen ts were t o be simila

r to Gard ner’s; h owever , Campbell was to also expla

in that Cam

pbell had given the defendant a gun “ because I F

elt [sic] like his life was in danger.” T hereafter in the letter the defendant added: “The guy s was [sic] saying threatening remarks to [the defendant] and saying they was [sic] g on [sic] to kill him. I f the law ye

r ask s who they I s [sic], name some dude names.” Finally, ac cording to the letter Eric L ewis andJohnny Martin were both to relate tha t“They threaten [sic] t

o ki ll [the defendant] and to do bodily harm ag ainst him. Prior to the incident that happen [sic], They

[sic] w itnes s [sic ] and heard victi ms & a ssoc iatio ns [sic ] d iscussing to do [the defendant] bodily harm.” At trial bef ore the St ate cal led its fir st witness
, the lower court conducted a jury-out hea

ring concerning all three letters. During this hearing the defe ndant originally a

rgued that the letters were irrelevant then noted that the letters may pro ve a sep ara te o ffe nse . In ruling on the matter, the trial judge looked to State v. Maddox for guidance. See State v. Maddox , 957 S.W.2d 547 (Tenn. Cr im. App. 1997). B ased upo n the cont ent of the se letter s, the trial court found that therein the defendant had 1) admitted to shooting; 2) tried “to fabricate testimony”; 3) acknowledged “that he wa s fixing
to get into

it” befo re the event, the

reby reflec ting pre

meditatio n; 4) evidenc ed a desire to threaten witnesses in order

to preve nt them fr

om testify

ing; and 5) provid

ed scrip ts from wh

ich cer tain witnesses we re to te st if

y. 11 Within his ruling the trial judge also fou n d that the letters were not unfairly prejudicial and we r e probative. Concerning the refe rences to a gang, the

trial court announced

that these would have to be deleted unless testimony made them releva nt. As the trial progressed, the court determined that their relevance had been shown and tha t the references were not unfai rly prejudic ial. The court, thus, concluded that the letters did not have to be redacted. Our ana lys is of this issue beg

ins with the

defenda nt’s alle gation t

hat the tr ial cour t did not conduct an appropriate hearing conc erning the le tter s’ releva

ncy . Weagree with the lower court’s determination that the letters met the relevancy req ui rements of Rule 401 in several respects. See Tenn. R. Evid. 401. The defendant has also failed to persuade this Court that the trial cou

rt committed error

in determining that t

he risk of u nfair prejudice outweighed the proba tive value of this proof. As aforementioned, the lower court relied heavily on State v. Maddox in making its decisi on to admit the letters. Maddox presented a situation in which the defendant Maddox 12 had arguably threatened

a witness through a letter. Maddox , 547 S.W.2d a t 552. How ever, th

is letter also made an unclear reference to an unre sol ved charge and discussed a pla n to rob a Dunkin Donuts. Id. Among other thin gs a second

letter also mentioned “the doughnut place.” Id. The planned robbery was par ticularl y problema tic since it

involved the same type of offense for which the

defendant was being tried. Id. Moreover, the lower court in Maddox did not conduct th e necessary404(b) hearing as aboveoutlined. See id. ; Tenn. R. Evid. 404(b). Based upon these and other err ors, this Court revers e d13 Th e Co urt, ne verth eless, aff irm ed th e con viction of M add ox’ s co-d efen dan t. See id. at 557.

-11- Maddox’s conviction. 13 See Maddox
, 957 S.W.2d at 553, 556- 57. However, for our purpo ses it is importantto note that the Maddox Court specifically a ddressed the threatening portions of the letter and found them admissible and relevant under the guidelines of Rule 404(b). See id. at 551-52. To support this conclusion, the Court cited precedent providing that “[a]ny attempt by an ac cused t o conceal or destroy evide

nce, including an attempt to suppress the testimony of a witness, is relevant

as a circumstance from which guilt of the accused may

be inferred.” Maddox at 552 (quot ing Tillery

v. State , 565 S.W.2d 509, 51 1 (Tenn. Crim. App. 1978); see also State v. A lfonzo Willia

ms , No. W2001-00452-CCA-R3-CD, 2002 Tenn. Crim. App. LEXI S 2 34, at *11 (Tenn. Crim. App. at Jackson, Mar. 15, 2002) app. f or perm. to app eal filed(Tenn. M ay 14, 2002) . Based

upon this rationale, the threatening portions of the lette rs were appropr iately admitted a s infere

nces of g uilt. Moreover, in its findings the trial court specifically noted that the danger of unfair prejudice did not
outwe igh th e probative impact of this evidence. We find that the defendant ha s failed to show an abuse of discr etion in the trial court’s decisionto allow this proof. See State v. Donald K. Moore
, No. 01C01-9801-CR-00032, 1999 Tenn. Crim. App. LEXI S 361, at *22-*26 (Tenn. Crim. App. at Nashville, Apr. 20, 1999). We further note that the defendant’s challeng e to the gang re la ted evide nce like wise fai ls. Before these letters were admitted, two witnesses had testified, without objection, that someone had stated “LMG K” (“L

emoy ne Gard en Killer ”) and “ VLK”

(“Vice Lord Killer” ) immedia

tely prior to the shots’ being fired. As such, it is arguable that the de fendant waived a challenge to this type of proof. See Tenn. R. App. P. 36(a). However, even if this issue we re not wai ved, testimony

conce rning gangs is permissible in trials wherein the proof mee ts the requirements of the aforementioned

Tennessee Rules of Evidenc e 401, 403, and 404. See State v. G ’Donga lay Parlo Berry
, No. M1999- 00824-CCA -R3- CD, 2001 Tenn. Crim. App. LEXI S 847, at *35-*39 (Tenn. Crim. App. at Nashville, Oct. 19, 2001), perm.to appeal denied(Tenn. M ar. 4, 20 02); State v. John ie Jefferson
, No. W1999-00747-CCA-R3-CD, 2001 Tenn. Crim. App. LEXI S 827, at *27-*30 (Tenn. Crim. App. at

Jackson, Oct. 12, 2001), app. to perm. to appeal filed (Tenn. Nov. 7, 2001). The brief refere nces wi thin the letters to a gang were a rguably relevant to motive under the facts presented, and the probative value of this evidence was not outweig hed by the dang er of unfair prejudice. Las tl y, the defendant complains “that the State . . . compounded the error by making repeated reference to the letters during closing argume ntand discussing [them] as evidence of gang action and other crimes.” In view of our

above findings, we determine that the State could prope rly mention the
content of these letters in closing to argue the inference of guilt, presence of motive, etc. However,

even if some of

the prosecution’s comments h ad been imp roper, t he defendant raised no contemporaneous objec tion at any tim e duri ng clos ing. We, therefore, find that this portion of the issue has been waived. See Tenn. R. A pp. P. 36(a

); see also State v. L

ittle , 854 S.W.2d 643, 651 (Tenn. Crim. App. 1992). In sum, we find none of the def endant’s contentions relative to the admission of the letters worthy of relief. This iss ue, thus, l acks mer it.-12- Imprope r Closing A rgument

Throu gh his final complaint the defendant avers that the prosecution improperly commented in closing on a witness mentioned by the defense in its opening statement but not called during trial. The defendant’s attack is somewhat unclear but appears to be that the State “essentially shift[ed] the burden” of proof

to the def

endant. T o bolste

r this cla im, the defense cites cases concerning
comments on a

defend ant’s choic e not t o test ify and cas es regar ding a party’s mention of “ an absent witness.” Fa ct ua ll y, the record discloses that the defense announced the following during its opening
statemen t: “Now, you will hea

r testimony, I

believe, from Tiffany

White and Lori Smith . . . . Lori Smith will testify, I

believe, that several people were a rmed and several fired

weapons.” In re sponse on closing , the pros ecution s tated as follows: The judge is going to instruct y ou in afew minut

e s what the law is in this case. You’ve hea

rd the evidence from the witness stand. The evidence is what and who you he ar d f ro m. Ev id en ce is no t w ho di dn ’t te st if y. . . . Mr. Nance got up and said the proof is going to s how y ou that at least one of the wit

nesses id entified four peo ple withguns. Ev ery

body had gun s. I don’t think we heard that. You’ re the triers of fact butI don’t

think any witnesses g ot on the stand and said that. I think he said that M s. Lori Smith was g oing to sa y th at. I don’t thin

k she test ified. B ut y ou use your own memories

. During its second closing argume nt, the State added: And, you know, opening

statements are where y ou stand up and you say , [“L]adies and gentlemen, we expect the proof the sh ow thi s[”] and you go through it. But y ou better make sur e what y ou say is going to happen or it’s going to come back to haunt you. Isn’t it? If I

got up and said it an d it didn ’t happe n, [the def

ense att orney s] would be th e fir st one [s ] rin ging th e bell. [“T

he prose cutor] pro mised you this. Where was it?[”] What didthey

promise? [“]Wel

l, we expe ct y ou’ll hea

r from a witness named Lori Smith who’s going to say

there were four people out there shoot ing g uns.[ ”] . . . They wantedyou to think that somebody was going to come in here and sa y, [“]I saw four different people shooting a

nd it was chaos [. I]t wa s the OK Co rral.[”] B ut what did you hear? Every

single eye witnes s said [the defend ant] was th e only pers on sho otin g.

At no point did

the defe nse obje ct to these comments. In view of this, we find that the defendant has waived this issue. SeeTenn. R. App. P. 36(a); Little , 854 S.W.2d at 651. However, even if n ot waived , this alle gation w ould not me rit reve rsal. The logical inference drawn f rom these remarks is that

the prosecution wished

to highlight the fact that a defense theory involving other shooters had never manifesteditself in proof not that th e d efenda

nt did not te stify . Though the defe nse has no

duty to put on pr

oof, it ha d placed this account before the

jurors in its opening statement. Furthermore, even assuming arguendo that the-13-

prose cutor 's comment could be considered as some vague reference to the defendant's electing not to take the stand, t

he trial c ourt cle arly

later ins tructed

the jury that: The defendant has not taken the stand to testify as a witness but you shall place no significance

on this fa

ct. The d efenda nt is presu

med innoc ent and t he burden is on the state to prove the defendant’s guilt bey ond a reasonable doubt. The defendant is
notrequire d to take t

he stand i n his own behalf and his election not to do so cannot be consider

ed for a ny p urpose a gainst h im, nor can any infer

ence be drawn from such fact.

The law presumes that

juries follow the instructions they rec eive absent clear and convincing proof
to the contrary

. See State v. Vanzant , 659 S.W.2d 816, 819 (Tenn. Crim. App. 1983). Under all of these circumstances we

see no basis for reversal. See
, e.g ., State v. Copeland , 983 S.W.2d 703, 708- 09 (Tenn. Crim. App. 1998). We next address the defen dant’s c ontention that the tr ial judg e imprope

rly permitte d the State
to present a missing witness argument during i ts closing . It iswell settl ed that, “ [a]s a predicate for
comment on a missing

witness, the evidence must show that the witness had knowledge of mate rial facts, that a relationship exists between the witness and the party that would nat ural ly incline the witness to favor

the part y and that the missing witness was available to the process of the Court for the trial.” Delk v. Sta

te , 590 S.W.2d 435, 440 (Tenn. 1979). Applying this standard to the instant case, we determine that Lori Smith would not have qualified as a missing witness. Though the defense itself ar gued that t he wit ness h ad kno wledge of material facts, no showing was made of the latter two c riteria. Nev erthele ss, the trial court’s instructions to the jury clear ly provided that the State must bear the burden of proving each element beyond a reasonable doubt and also delineated betwee n what constituted evidence and what was merely argument. In vie

w of this and considerations such as the strength of the ca se against the defenda nt, even if e

rror the se statements are harmless. See
, e.g ., State v. Jac k Thomas N orris
, No. 03C01-9704-CR-00137, 1999 T e nn. Crim. App. LEXI S 330, at *16-*19 (Tenn. Crim. App. at Knoxville, Apr. 9, 1999), perm. to appeal denied (Tenn. Oct. 25, 1999); Judge v. St ate , 539 S.W.2d 340, 344-46 (Tenn. Crim. App. 1976). In sum, we f

ind th at the defendant waived this issue as a whole by failing to make a contemporaneous objection to the stat ements during the prosecution’s closing arg ument. However, even if not waived, we conclude that the rationale s presented provide no basis for relief.

Conclusion

For the foregoing reasons we find that none of the issues raised merit re ve rs al . A cc or di ng ly, the judgment of the trial court is AFFI RMED.

___________________________________

JERRY L. SMITH, JUDGE