         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 February 24, 1998 Session

STATE OF TENNESSEE v. JAMES HENDERSON DELLINGER & GARY
                      WAYNE SUTTON

               Appeal as of Right from the Criminal Court for Blount County
                            No. C-6670    D. Kelly Thomas, Jr.,



                                 No. E1997-00196-CCA-R3-DD
                                        March 7, 2001

On April 6, 1992, the Blount County Grand Jury indicted Appellants James Henderson Dellinger and
Gary Wayne Sutton for one count each of first-degree murder in the death of Tommy Griffin.
Following a jury trial, the Appellants were convicted of first degree murder. After a subsequent
sentencing hearing the jury imposed the death penalty on both appellants. They raise thirty five
alleged errors concerning both the guilt and sentencing phase of their trial. After a review of the
entire record we have concluded there is no reversible error and we therefore AFFIRM the verdict.

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

JERRY SMITH, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR., J.CONCUR,
PAUL G. SUMMERS , J., not participating.


Eugene B. Dixon; Charles Deas, Maryville, Tennessee, for appellant, James Henderson Dellinger,
and F.D. Gibson, Maryville, Tennessee and John Goergen, Knoxville, Tennessee, for the appellant,
Gary Wayne Sutton.

John Knox Walkup, Attorney General & Reporter; Michael E. Moore, Solicitor General; Kenneth
W. Rucker, Assistant Attorney General; and Mike Flynn, District Attorney General, for the appellee,
State of Tennessee.

                                            OPINION


                                            I. FACTS

        Stella Griffin Whitted testified that she was the sister of the victims in this case, Tommy
Griffin and Connie Branam. She testified that her brother had been twenty-four years old at the time
of his death and had walked with a pronounced limp due to an earlier amputation of one of his legs.
She also testified that her sister was thirty-three years old at the time of her death.
        Jamie Carr testified that she was working as a barmaid at Howie’s Hideaway Lounge in
Maryville, Tennessee on February 21, 1992. Carr stated that during her shift, Appellants and an
individual whom she later learned was Tommy Griffin arrived in a dark blue Camaro or Trans Am.
The three men sat in a booth and began drinking beer.
        Terri Newman testified that when she arrived for work at Howie’s Hideaway on February 21,
1992, a blue Camaro or Grand Prix was parked in her parking space. When Newman entered the
establishment, she saw Appellants and Griffin drinking beer and shooting pool. Newman stated that
the three men left Howie’s Hideaway at approximately 7:00 p.m.
        Cynthia Walker testified that on February 21, 1992, she and Kevin Walker were returning
to Knoxville from Maryville when she saw a dark-colored Camaro parked in the emergency lane of
the Alcoa Highway. Ms. Walker stated that she thought there might have been a fight because it
appeared that someone was being pulled from the passenger side of the Camaro.
        Kevin Walker testified that he had also seen the altercation that occurred in and around a
dark-colored Camaro that had only one headlight. Mr. Walker stated that after he saw a person who
was outside of the Camaro fighting with a person who was inside the Camaro, he used his radio to
report the incident to Blount County authorities. Mr. Walker stated that the incident happened at
approximately 7:00 p.m.
        Sharon Davis testified that she and her family had also been driving along Alcoa Highway
at approximately 7:00 p.m. on February 21, 1992, when she noticed a man on the side of the road
who was not wearing a shirt or shoes and who appeared to be stumbling around. Davis stated that
she and her family traveled approximately one mile down the road to eat at the Waffle House, and
upon their return, she saw a dark-colored Camaro that was near the place where she had seen the man
who was not wearing a shirt or shoes. Davis also saw two men by the Camaro who appeared to be
searching for something or someone.
        Sandra Hicks testified that while she was working as a dispatcher at 7:11 p.m. on February
21, 1992, she received a report about a fight involving some people in a black or dark-colored
Camaro. Hicks then dispatched Officer Steven Brooks to investigate.
        Officer Steven Brooks of the Alcoa, Tennessee Police Department testified that he received
the dispatch about a possible fight at approximately 7:00 p.m. When Brooks arrived at the scene
approximately two minutes later, he observed nothing unusual. Brooks then made a routine traffic
stop and when he began questioning the occupants of the vehicle, he noticed another vehicle on Hunt
Road that was flashing its lights erratically. Brooks then radioed Officer Drew Roberts and
requested that Officer Roberts check on that vehicle.
        Brooks testified that when he subsequently joined Roberts, he saw two men standing beside
a S-10 pickup and saw another man sitting on the tailgate of the truck. Brooks stated that the man
on the tailgate was not wearing a shirt and it appeared that he had been involved in a fight because
he was upset and he had abrasions on his back and neck.
        Officer Drew Roberts testified that when he questioned the man who was not wearing a shirt,
the man told the officers that his name was Tommy Griffin and that he lived in Sevier County.
Griffin initially told the officers that an argument had taken place and that some friends put him out
of the car, but when questioned further, he stated that the men were not really his friends. Griffin


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refused to give any other information. Roberts subsequently arrested Griffin for public intoxication
and took him to the Blount County Jail.
         Sergeant Ray Herron testified that Griffin was booked into the Blount County jail at 7:40
p.m. on February 21, 1992. Herron stated that approximately forty-five minutes later, appellant
Dellinger approached him to see when Griffin could be released. Herron told Dellinger that Griffin
would be kept a minimum of four hours. Herron stated that Griffin was subsequently released from
jail at 11:25 p.m. when Dellinger returned to the jail and posted a cash bond.
         Captain Kenneth Beeler testified that on February 21, 1992, he saw both Appellants in the
lobby of the Blount County Jail at approximately 11:15 p.m. Lieutenant Tom Defoe testified that
on the evening of February 21, 1992, he saw Appellants enter the lobby of the Blount County Jail
and he noticed that one of them was carrying a shirt. Shortly thereafter, Defoe saw Appellants leave
the jail with an individual who had just been released.
         Alvin Henry testified that he lived in the same neighborhood as both Dellinger and Griffin.
Henry stated that at approximately 9:00 p.m. on February 21, 1992, he looked out the window of his
residence when his dog started barking. When Henry looked down the road, he saw someone getting
in Dellinger’s white pickup truck. Henry then saw the truck drive up the road and pull into
Dellinger’s driveway. A few seconds later, Henry looked back down the road and noticed that
flames were shooting out of Griffin’s trailer.
         Jennifer Branam, Griffin’s niece, testified that on the night of February 21, 1992, her sister
came into her bedroom and yelled that Griffin’s trailer was on fire. Jennifer Branam then awakened
her father and ran to Dellinger’s trailer to see whether Griffin was there. Jennifer Branam stated that
she believed that Dellinger was at home because his truck was in the driveway. She then knocked
on the door and Linda Dellinger answered. Jennifer Branam stated that when she asked whether
Dellinger was home, Linda said that he was not there. However, Jennifer Branam then saw both
Appellants walking down the hall. She also noticed that they were both wearing jackets and their
pants were wet up to their knees. When Jennifer Branam asked Sutton if Griffin was in the trailer,
Sutton replied that Griffin was in Blount County with a girl. Jennifer Branam then asked both
Appellants to accompany her to Griffin’s trailer, but Dellinger said he could not go because he was
in enough trouble already.
         Jennifer Branam testified that later that night, she saw Appellants move an object from
Dellinger’s truck to Linda Dellinger’s car. Jennifer Branam stated that the object was two to three
feet long and it was covered with a sheet. She stated that Appellants then left in the car. The
following morning, Jennifer Branam saw Dellinger remove the object that had been put in the trunk
of his wife’s car and place it under his trailer. She stated that the object looked like a shotgun.
         Herman Lewis, a neighbor of Griffin, testified that at approximately 10:00 p.m. on February
21, 1992, he saw someone who looked like Dellinger come out of the Dellinger trailer and put
something white that was about the size of a walking stick in the back of a car. He stated that two
people had been in the car when it drove away, but he admitted that he could not identify the two
people.
         Sandy Branam, another of Griffin’s nieces, testified that she had a conversation with
Dellinger at approximately 9:00 p.m. on February 21, 1992, during which she inquired about Griffin.
She stated that defendant Dellinger told her that Griffin was at the Blount County Jail and that he
and Sutton were going to get him out of jail. Sandy Branam also stated her mother had previously


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complained that there was a faulty plug behind the television set in Griffin’s trailer. She also stated
that she saw three vehicles in the Dellinger driveway on the night of the fire: an Oldsmobile, a white
truck, and a Camaro. Sandy Branam also testified that around noon on February 22, 1992, her
mother, Connie Branam, stated that she was going to look for Griffin in Blount County.
        Jason McDonald testified that at 11:55 p.m. on February 21, 1992, he heard two or three
gunshots coming from the Blue Springs/Blue Hole area near his home. Brenda McKeehan,
McDonald’s mother, testified that she also heard two gunshots on the evening of February 21, 1992.
        Jerry Sullivan, owner of a grocery store in Townsend, Tennessee, testified that on the
afternoon of February 22, 1992, Connie Branam came into his store in search of information
concerning her brother, Griffin. She showed store employees a picture of her brother and asked
Sullivan if she could leave her car in his parking lot. Sullivan testified that when he accompanied
Branam outside to ensure that her car was not blocking anyone, he saw her talking to two men in a
white pickup truck. He stated, however, that he did not get a good look at the men and he could not
identify them.
        Jamie Carr testified that she was working at Howie’s Hideaway on February 22, 1992, when
Appellants came in with Connie Branam. Carr stated that Branam was looking for her brother and
she was crying. When Branam began telling Carr about Griffin’s trailer burning down, Dellinger
interrupted by asking whether Carr remembered if Dellinger had been in the bar the previous day.
When Carr told Dellinger that she definitely remembered him from the previous day, he continued
to interrupt her by asking if she was sure that she remembered that he had been in the bar the day
before. Carr testified that Dellinger then stated that he thought that Griffin might have returned to
the bar after he was released from jail. Dellinger then told Carr that he left Griffin with a woman
down the road.
        Terri Newman testified that when she arrived for work at Howie’s Hideaway at 5:00 p.m. on
February 22, 1992, Appellants were in the bar with Connie Branam. Newman stated that Dellinger
immediately asked her if she remembered him and Sutton from the day before. Branam then said
that she was looking for her brother and wanted to know with whom he had left the bar. Newman
stated that she was confused because she knew that Griffin had left the bar with Appellants.
Newman also stated that Dellinger told her that he and Sutton brought Griffin into the bar after he
was released from jail, but Newman remembered that the group left at approximately 7:00 p.m. the
prior evening.
        Newman testified that Branam became “friendlier” with Dellinger after she consumed some
alcohol and Dellinger subsequently became jealous when Branam began flirting with another man
who was in the bar. Newman stated that Sutton subsequently attempted to get her to go with the
three of them to look for Griffin, but she refused. She stated that Sutton then told her that her
husband would be surprised when she ended up missing one morning. Newman saw Branam leave
with Appellants at approximately 6:30 p.m.
        James Gordon testified that while he was in the Clear Fork area of Sevier County at
approximately 8:00 p.m. on February 22, 1992, he heard a high-pitched whistle sound in the nearby
woods. When he looked into the woods, he saw a fire approximately two hundred yards away. Mr.
Gordon stated that because he thought the fire was started by campers, he made no further
investigation. However, at approximately 7:00 p.m. on February 28, 1992, he and his foster son
were in the area of the fire and they found a burned vehicle that contained a body.


                                                 -4-
         Barbara Gordon testified that the day after the fire, she saw a white truck coming from the
scene of the fire that was traveling at a high rate of speed. She stated that the truck appeared to have
two occupants.
         Thomas Carter testified that while he and his children were fishing in the Blue Hole area of
Blount County on February 24, 1992, his daughter informed him that a man was lying on the side
of the riverbank. Carter stated that when he investigated and saw the man lying face down, he called
911. Carter stated that he could see that the man had a bloody wound on the back of his head.
         Gary Hamilton of the Blount County Sheriff’s Department testified that he went to the Blue
Hole crime scene on February 24, 1992. Hamilton stated that he subsequently located the body and
he also found two spent twelve-gauge shotgun shells and two empty beer cans by the body.
         Dr. William Bass, an expert in forensic anthropology, testified that he had been called by the
Sevier County Sheriff’s Department to conduct an analysis of the scene where the body had been
found in the burned car. Dr. Bass identified a photograph of the burned vehicle and stated that a
body was found lying in the front seat. He stated that in light of his experience in investigating
deaths, it appeared that an accelerant was poured in the vehicle due to the burn pattern. He testified
that because the victim’s arms and legs had been burned off and the skull had been cremated at the
top, he determined that something would have had to have been added to the vehicle to present such
a high amount of burning. Dr. Bass stated that the body was so extensively burned that he had been
unable to determine a cause of death, however, a positive identification of the victim as Connie
Branam had been made from dental records. Dr. Bass also stated that a rifle cartridge shell was
found at the scene.
         Gary Clabo, an arson investigator for the State of Tennessee, testified that he was notified
of a fire involving an automobile and a dead body on February 28, 1992, and that he arrived at the
scene at approximately 11:00 p.m. Due to the darkness, an officer guarded the vehicle that night,
and Clabo began his investigation the next morning. Clabo testified that the vehicle was burned
severely and the interior was almost totally destroyed. Following a detailed investigation, he
concluded that the fire did not begin in the engine compartment because the engine components were
essentially intact. Rather, burn patterns indicated that the fire had started in the front seat area and
that an accelerant had been placed on the floor to make it burn hotter and faster. Clabo concluded
that the fire had been set by human hands with the use of an outside ignition source.
         Clabo then testified that he had investigated the fire that destroyed Griffin’s trailer. After
explaining his method of investigation, Clabo opined that the trailer fire had also been set by human
hands and that a liquid accelerant had been used. He stated that he had checked the electrical system
and appliances and concluded that there was no evidence of any electrical-caused fire from those
items.
         On cross-examination, Clabo admitted that he took samples from the vehicle to be tested for
accelerants, but the report he obtained from the Tennessee Bureau of Investigation (“TBI”) lab did
not reveal any petroleum distillate. However, Clabo stated that it was not unusual to get a negative
report from the TBI lab due to consumption and evaporation. Clabo also stated that the high
whistling sounds heard by James Gordon could have been caused by contents of aerosol cans in the
trunk leaking out or by the burning of the seats or a tire. Clabo admitted that none of Griffin’s



                                                  -5-
neighbors had noticed the smell of any petroleum-based product during or after the fire. Clabo also
admitted that he had not sent any samples from the trailer to the TBI lab to be tested for accelerants.

         Dr. Eric Ellington testified that when he conducted an autopsy of Griffin’s body on February
25, 1992, he immediately noted that Griffin only had one leg and he had incurred a wound to the
back of his head that was an inch and a half in diameter. Dr. Ellington testified that the cause of
death was massive trauma or injury to the brain stem which was completely destroyed by a gunshot.
Dr. Ellington testified that he removed the brain from the skull and retrieved two metal pellets and
two objects which he concluded to be wadding. He stated that he gave those objects to Deputy Larry
Muncy.
         On cross-examination, Dr. Ellington testified that because he was not trained in forensic
pathology, he had not attempted to determine the time of death. However, Dr. Ellington stated that
the emergency technician’s report indicated that rigor mortis was present in Griffin’s body when it
was recovered at 5:50 p.m. on February 24, 1992. Dr. Ellington stated that according to textbooks
he had studied, rigor mortis sets in about thirty minutes after death and lasts from twenty-four to
thirty-six hours after death.
         James Widener, criminal investigator for the Blount County Sheriff’s Department, testified
that he executed a search warrant for Dellinger’s trailer and surrounding property on February 28,
1992. Widener stated that the purpose of the search was to look for shells, shotgun shell casings,
and a shotgun. He stated that several expended shotgun shells were recovered in both Dellinger’s
yard and in an adjacent yard. He stated that a .303 rifle and a Mossberg shotgun barrel were found
in Dellinger’s bedroom. On cross-examination, Widener admitted that it appeared that Dellinger was
a gun trader or collector and that various people he interviewed had stated that shooting and target
practice often took place in Dellinger’s yard.
         Don Carman, special agent with the TBI, testified that after an extensive investigation, his
office concluded that the .303 rifle shell recovered from the scene of the burned vehicle was fired
from the rifle that was found in Dellinger’s home. He also testified that shotgun shells found in
Dellinger’s yard and the surrounding area and the shells found near Griffin’s body had been fired
from the same shotgun.
         Joseph Mason, firearms expert employed by the United States Treasury Department, testified
that he had examined the shell casings that were recovered during the investigation of this case.
Mason stated that he had determined that seven of the twelve-gauge shotgun cartridges delivered to
him for examination were fired from the same shotgun, including two shells found near Griffin’s
body.
         Detective Widener was recalled to testify that he had interviewed both Appellants and that
he had recorded the interviews. Sutton’s tape recorded statement was then played for the jury, but
after listening to it, the jury informed the trial court that they had been unable to glean anything from
the poor recording. Detective Widener then testified during a jury-out hearing that he had examined
the transcript of the statement and that the transcript was accurate. The transcript of Sutton’s
statement was then submitted to the jury.
         On cross-examination, Detective Widener admitted that both Appellants had maintained their
innocence throughout their entire interrogation and statements. When questioned about witnesses’
recollection of the type of Camaro they saw on the Alcoa Highway on the night of the murder,


                                                  -6-
Widener admitted that their description might not have matched the exact model of the Camaro
owned by Sutton. Widener also stated that he had been told that Dellinger was like a father to
Griffin and that Sutton was like a brother to him. He admitted that evidence showed that Dellinger
had bailed the victim out of jail on numerous occasions. He also stated that Dellinger had given him
an unusual amount of detail concerning a dark-haired woman with whom he had last seen the victim
and that Sutton had given an identical description.
         Mark Turner, Director of the Narcotics Unit at the Sevier County Sheriff’s Department,
testified that he saw Sutton on March 2, 1992, driving a 1984 Camaro with a large hood scoop and
only one headlight in working condition.
         Numerous witnesses testified on the behalf of Appellants that they had previously shot
shotguns at Dellinger’s property and that Griffin had been friends with both Appellants.
         Dr. Wayne Stewart, a family physician, testified that he had treated Connie Branam as a
patient and that on one occasion he treated her for injuries related to an assault committed by Jack
Sutton. Dr. Stewart stated that he had treated Branam for numerous ailments including severe
sinusitis, recurring abdominal camps, and grief over the loss of her father and worry over the medical
condition of her mother. He also stated that he had treated Branam for panic attacks and acute grief
and had prescribed valium, xanax, and vicodan on occasion.
         Matthew Cubberley, patrolman for the Sevier County Sheriff’s Department, testified that on
February 10, 1992, he was called to the home of Connie Branam on a report that Branam had taken
an overdose of drugs. Cubberley stated that when he arrived at the scene, Branam attacked him and
he arrested her for assault and took her to the emergency room. Cubberley also stated that Branam
was transported to a mental institution for a few days, and that the assault charges were subsequently
dropped.
         Dr. Ittoop Maliyekkel, psychiatrist at Lakeshore Mental Health Institute, testified that he
treated Connie Branam when she was transported to the Lakeshore facility and that she suffered from
acute depression. Dr. Maliyekkel also testified that a different drug other than the one she overdosed
on was found in Branam’s urine drug screen and that he warned her that mixing medications could
be fatal. On cross-examination, Dr. Maliyekkel stated that the discharge summary report reflected
that when Branam left Lakeshore three days after being admitted, she appeared sober, was not
psychotic or depressed, and had no suicidal ideation.
         Carolyn Weaver testified that she had been Sutton’s girlfriend in February of 1992. Weaver
stated that she had seen Sutton and Dellinger at the home of Sutton’s brother at approximately 7:00
p.m. on February 21, 1992. Weaver stated that Sutton had taken his car to be examined by his
brother and that Sutton had borrowed his brother’s truck because the radiator on Sutton’s Camaro
was broken. Weaver stated that she and both Appellants left at approximately 8:00 p.m. in a white
pickup truck and went to Dellinger’s home. Weaver stated that Griffin had not been with Appellants
and that Griffin’s trailer had definitely not been on fire when she and Appellants dove past it.
Weaver stated that Appellants left Dellinger’s residence at approximately 10:00 p.m. in order to get
Griffin out of jail. Weaver stated that Appellants returned about midnight and there was nothing
unusual about their dress at that time.
         Weaver testified that she stayed with Sutton at Dellinger’s trailer on the night of February
21, 1992, and she left the next morning with Linda Dellinger to do some shopping. When she



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returned, Appellants were gone. Weaver stated that Appellants returned at approximately 8:00 p.m.
that evening and she and Sutton stayed with the Dellingers on the night of February 22, 1992.
         Weaver testified that she had been to Griffin’s trailer on occasion and she had noticed that
it was not clean and that wires had been “hanging around.” She also stated that she had seen holes
in the stovepipe and a burned place in the floor. She stated that she knew that Griffin was afraid of
his brother James Griffin because James had often beaten him up.
         Tim Nichols, a volunteer fireman with the Sevierville Fire Department, testified that he was
the head of the fire crew that answered a call for the fire at Griffin’s trailer on February 21, 1992.
Nichols testified that he had a conversation with Connie Branam that evening in which she stated
that bad wiring might have caused the fire. Nichols stated that the trailer had been a total loss and
that he did not call an arson investigator because he had no reason to suspect arson at that time. He
also testified that he did not smell the odor of gasoline or any other chemical at the fire scene.
         Captain Larry McMahan of the Sevier County Sheriff’s Department testified that he acted
as chief investigator in the Connie Branam case and that he assisted in the investigation of this case.
McMahan testified that none of the items gathered at the scene where Connie Branam’s body had
been found, when tested, had resulted in fingerprints of Appellants being found. He also testified that
dirt samples taken from the shoes of Appellants did not match samples of dirt taken from the scene
where Branam’s body was found.
         On cross-examination, Captain McMahan testified that the shotgun that had fired the shells
in this case had never been recovered. McMahan also admitted that he did not test the fingerprints
of other potential suspects such as Bill Cogdill, Eddie Blair, or James Griffin for potential matches
of prints taken from items found at the Connie Branam fire scene. He also stated that a partial tire
track found at the Branam fire scene did not match the tracks of Dellinger’s vehicle.
         Charles Currier, a resident of the area near where Griffin’s body was discovered, testified that
it was not unusual to hear gunshots around that area because people often practiced shooting there.
Katherine Turner, another resident of the area, corroborated his testimony.
         William Dewitt was called by the defense as a fire-investigation expert and was qualified as
such by the court. Dewitt testified that new scientific evidence revealed that irregular burn patterns
were not always indicative that an accelerant had been used. Dewitt stated that if the presence of
ignited liquids is suspected, samples should always be taken. He further stated that the type and
quantity of combustible materials found in automobiles today, when burned, can produce a degree
of damage much like that caused by an accelerant. After being provided information about the fires
of the trailer and the vehicle, Dewitt opined that the cause of the fires should have been listed as
“undetermined.”
         Robert Webb, Chief Operations Manager for Tennessee for the EMS Division, testified that
he received a call in February of 1992 to investigate a dead body that had been found on the banks
of the Little River in Blount County. Webb testified that he assisted in loading the body, and it was
his opinion that rigor mortis had set in at that time. Neal Stone, a medic for the Rural Metro
Ambulance Corporation, testified that he also assisted in the recovery of the body of the victim and
that it was his opinion that rigor mortis was present.
         Martha Blair testified that in February of 1992, she lived with her ex-husband, Eddie Blair.
Ms. Blair stated that shortly after Griffin’s body was found, officers came to her home to speak with
Mr. Blair. She stated that the officers searched Mr. Blair’s car thoroughly and also found shell


                                                  -8-
casings from a 12-gauge shotgun in her yard. Ms. Blair stated that in February of 1992, Mr. Blair
owned a 12-gauge shotgun and he took the gun with him everywhere that he went. She stated,
however, that the shotgun had mysteriously disappeared before the officers visited her home.
        Ms. Blair testified that two unusual incidents occurred about the time that Griffin was killed
that caused her concern. First, Mr. Blair came home and threw his clothes in the trash and told her
that he was throwing them away because they were muddy. She stated that in the twenty years that
she and Mr. Blair had lived together, she had never known him to throw away any muddy clothes.
The second incident that concerned Ms. Blair was that the next morning Mr. Blair took the trash out
to his car, something he had never done before.
        Robert Whiteman, park ranger with the Great Smoky Mountains National Park, testified that
he checked into the records of the park service at the request of defense counsel, and in February of
1992, the park owned four white Dodge pickups. He further testified that rangers who drove two
of the pickups might have had occasion during that time to be in the area where the body of Connie
Branam had been found.
        Jack Sutton testified that in February of 1992, an individual by the name of Bill Cogdill told
him two or three days before Connie Branam’s body was found that her body would either be found
in water or a burned vehicle.
         Dr. Larry Wolfe, a physician employed by Mountain People’s Health Council, testified that
he had been provided with autopsy photographs of Griffin and he had opined that Griffin died as a
result of a single gunshot wound to the back of the neck. From the photographs, he estimated that
the time of death was twenty-four to thirty-six hours prior to the time the body was discovered. After
reciting a list of factors he had considered in determining the time of death, he testified that the
victim appeared to have been in a state of rigor mortis and rigor mortis is complete at twenty to
twenty-two hours after death and dissipates at about that same rate. Dr. Wolfe also noted the
presence of postmortem goose bumps on Griffin’s body which would further indicate complete rigor
mortis. Dr. Wolfe stated that he also considered the factors of lividity, marbling of the skin, redness
of the blood, and stage of decomposition of the organs in making his determination as to the time
of death. He testified that if Griffin’s body had been lying out in temperatures reported during the
sixty to sixty-six hour time period suggested by the State, he would have expected gross changes in
Griffin’s body that would have been readily apparent.
         Dr. Wolfe then testified about the drugs that had been prescribed for Connie Branam. Dr.
Wolfe testified that according to reports, xanax, vicodin, and sinequan had been prescribed for
Branam in the last week of her life and she had been hospitalized during that time for adjustment
reaction, severe depression, suicidal gestures, and alcohol abuse. According to Dr. Wolfe, any
individual who had been taking xanax and sinequan and been drinking alcohol would have behaved
in an intoxicated state and would have experienced extreme mood swings and disinhibition. He
testified that if an individual had taken enough of the drugs, he or she might not respond to intense
pain due to being in a comatose state. Defense counsel then hypothesized that an individual in such
a state might be able to drive a car, wander into the woods, stop the car, light a cigarette, pass out,
and then die of cardiac arrest, renal failure, or respiratory arrest. Dr. Wolfe responded that this
hypothetical was a possibility.
         On cross-examination, Dr. Wolfe admitted that he was not board-certified in forensic
pathology and that when he was the medical examiner in Union County, all autopsies were


                                                 -9-
performed elsewhere. He also admitted that he had never spoken with the physician who conducted
the autopsy on Griffin.
        In rebuttal, the state called Beverly Sparks, custodian of records for the Sevier County
Sheriff’s Department, to introduce into evidence two missing persons reports filed by Viola Griffin,
the mother of Griffin and Branam, on Monday, February 24, 1992. In the reports, Ms. Griffin stated
that she had not seen or heard from Griffin since February 21, 1992, at 11:45 p.m. and she had not
seen or heard from Branam since February 22, 1992, at 1:00 p.m.
        Dr. Charles Harlan, forensic pathologist, was accepted as an expert witness by the court. Dr.
Harlan testified that after reading Dr. Ellington’s autopsy report for Griffin, it was his opinion that
Griffin died between 6:00 p.m. on February 21, 1992, and 8:00 a.m. on February 22, 1992. Dr.
Harlan based this opinion on the fact that decomposition of organs was apparent on the microscopic
examination. Dr. Harlan also testified that he had reviewed the testimony of Dr. Wolfe and he
disagreed with many of the conclusions that Dr. Wolfe had made from viewing the evidence in the
case.

                      II. SEPARATE JURIES FOR EACH APPELLANT
        Appellants contend that the trial court erred when it refused to grant their request for a
separate jury for each Appellant.1 We disagree.
        The record indicates that in their motion for separate juries and during the hearing on the
motion, Appellants argued that they were entitled to separate juries because Appellants would be
prejudiced when the trial court admitted evidence that was admissible as to one Appellant but was
inadmissible as to the other Appellant. However, when the trial court denied the motion, the court
stated that it would not admit any evidence that was admissible as to one Appellant but was
inadmissible to the other Appellant.2 Thus, the trial court found that there was “[no] reason that the
State and both [Appellants] can’t have a fair trial before the same jury.”
        As support for their argument on this issue, Appellants have cited a few federal court cases
in which separate juries were used. However, Appellants have failed to cite any authority that would
require separate juries in a case such as this one. Indeed, the general rule is that the decision of
whether to grant a motion for severance is within the discretion of the trial court and the trial court’s
decision will not be reversed absent a showing of prejudice. See State v. Robinson, 971 S.W.2d 30,




         1
          Initially, we note that Appellants have failed to support the argument for this issue and for many subsequent
issues with appro priate citations to the record . For instance , Appellan ts have com pletely failed to identify the part of
the record that contains their motion for separate juries, the part of the record that contains any argument on the motion,
and the part of the record that contains the trial court’s ruling on the motion. Rule 27(g) of the Tennessee Rules of
Appellate Proced ure specifica lly states that “referenc e in the briefs to the record sha ll be to the page of the record
involved.” Further, Rule 10(b) of the Rules of the Tennessee Court of Appeals states that “[i]ssues which are not
supported by . . . appropriate references to the record will be treated as waived by this court.”

         2
          For example, the trial court ruled that the State could not introduce a statement by Dellinger in which he
threatened to “wipe out the whole hill” of Griffins because there was no evidence that Sutton had adopted the statement.

                                                           -10-
40 (Tenn. Crim. App. 1997); State v. Ensley, 956 S.W.2d 502, 508 (Tenn. Crim. App. 1996).3 In
this case, Appellants have failed to meet their burden of showing that the trial court abused its
discretion. In fact, Appellants have failed to identify a single instance in which one Appellant was
prejudiced by the introduction of evidence that was only admissible against the other Appellant. In
addition, Appellants have failed to identify any other way in which the trial court’s denial of their
motion prevented them from having a fair trial. This issue has no merit.

      III. SEPARATE JURIES DURING THE GUILT AND SENTENCING PHASES
         Appellants contend that the trial court erred when it denied their motion for separate juries
during the guilt and sentencing phases of trial. We disagree.4
         First, Appellants contend that having the same jury during the guilt and sentencing phases
is unconstitutional because it deprived them of their right to a fair trial. Specifically, Appellants
contend that the current system is unfair because the State’s ability to challenge jurors that have
personal views against the death penalty5 leads to a system where the jury is more likely to convict.
However, the Tennessee Supreme Court has previously considered and rejected this argument. See
State v. Harbison, 704 S.W.2d 314, 318–319 (Tenn. 1986) (rejecting the argument that a defendant
is entitled to separate juries during the guilt and sentencing phases of a capital trial in order to
guarantee a fair trial by a jury that represented a cross section of the community); State v. Zagorski,
701 S.W.2d 808, 814–15 (Tenn. 1985) (rejecting the argument that a defendant is entitled to separate
juries during the guilt and sentencing phases of a capital trial on the theory that a “death qualified”
jury is skewed toward a finding of guilt in contravention of the right to a fair and impartial jury
composed of a cross-section of the community); see also State v. Hall, 958 S.W.2d 679, 717 (Tenn.
1997) (rejecting the argument that the manner of selecting “death qualified” jurors results in juries
that are prone to conviction); State v. Teel, 793 S.W.2d 236, 246 (Tenn. 1990) (rejecting the
argument that the process of “death qualifying” prospective jurors produces a jury that is biased in
favor of the State on the issue of guilt or innocence and is not fairly representative of the
community).
         Second, Appellants contend that having the same jury during the guilt and sentencing phases
is unconstitutional because it violates the constitutional right to be tried by an impartial jury.
Essentially, Appellants contend that it is impossible for a jury that has convicted a defendant of first-
degree murder to be impartial when it decides whether to impose a death sentence on that defendant.


         3
           While these authorities applied this rule in the context of a motion for separate trials, we see no reason why
the rule should be any different in the context of a m otion for separate juries.

         4
          Initially, we note that a trial court does not have any discretion to grant a motion for separate juries during the
guilt and sentencing phases of trial. Indeed, Tennessee law specifically requires that following a conviction for first
degree murder, a “sentencing hearing shall be conducted as soon as practicable before the same jury that determined
guilt.” Tenn. Code Ann. § 39-13-204(a) (1991).

         5
          W e note that it is well-settled that a criminal defendant’s constitutional rights are not violated by excusing
prospective jurors for cause when their personal beliefs concernin g the death p enalty would prevent or substantially
impair their performance as a juror in accordance with their ins tructions and their oath. See State v. Hutchison, 898
S.W.2d 161, 167 (Tenn. 1994 ) (citing Wainw right v. Witt , 469 U .S. 412, 4 24, 105 S.Ct. 844 , 852, 83 L.Ed.2 d 841
(1985)).

                                                           -11-
However, Appellants have failed to cite any authority or anything in the record in support of this
proposition. We cannot agree that the mere fact that a jury has convicted a defendant of first degree
murder automatically renders that jury incapable of impartially deciding whether to impose a death
sentence. This issue has no merit.


                    IV. CONSTITUTIONALITY OF THE DEATH PENALTY
        Appellants contend that the trial court erred when it failed to declare that Tennessee’s death
penalty statutes and procedures are unconstitutional. We disagree.
        First, Appellants contend that Tennessee’s death penalty statutes and procedures are
unconstitutional because the jury is required to impose a death sentence if it finds that the
aggravating circumstances outweigh the mitigating circumstances and thus, the jury has no discretion
when it decides whether to impose a death sentence. 6 This argument has previously been
considered and specifically rejected by the Tennessee Supreme Court. See State v. Smith, 857
S.W.2d 1, 22 (Tenn. 1993) (holding that Tennessee’s death penalty statutes “do[] not in any way
constitutionally deprive the sentencer of the discretion mandated by the individualized sentence
requirements of the constitution”).
        Second, Appellants contend that Tennessee’s death penalty statutes and procedures are
unconstitutional because imposition of the death penalty is cruel and unusual punishment. This
argument has also been considered and specifically rejected by the Tennessee Supreme Court. See
State v. Black, 815 S.W.2d 166, 187–91 (Tenn. 1991) (holding that the death penalty is not
unconstitutional per se as cruel and unusual punishment).
        Third, Appellants contend that Tennessee’s death penalty statutes and procedures are
unconstitutional because the Tennessee legislature has concluded that juries are incapable of
rendering fair and just verdicts. In addition to the fact that this argument makes no mention of either
the federal or the state constitutions, this argument is also inaccurate. Appellants’ argument ignores
the fact that the Tennessee Legislature has expressly and specifically required that the jury impose
the sentence in capital cases. See Tenn. Code Ann. § 39-13-204(a) (1991). Contrary to Appellants’
assertions, it is clear that in enacting this statutory scheme, the legislature has manifested a belief that
juries are capable of rendering fair and just verdicts in capital cases.
        Fourth, Appellants contend that Tennessee’s death penalty statutes and procedures are
unconstitutional because the immediate sentencing of a capital defendant after pronouncement of
the verdict does not afford the capital defendant the same rights as other defendants who are
sentenced by the trial court during a separate sentencing hearing. Specifically, Appellants contend
that this sentencing procedure violates the constitutional right of capital defendants to equal
protection. Appellants have cited no authority in support of this proposition and we reject it. Equal
protection requires that all persons who are similarly situated must be treated alike. See State ex rel.
Stewart v. McWherter, 857 S.W.2d 875, 876 (Tenn. Crim. App. 1992). It is obvious that capital



         6
           At the time of the homicides Tennessee Code Annotated section 39 -13-204 provided , in relevant part, that the
jury shall impose a sentence o f death if it finds that the State has proven beyond a reasonable doubt that the aggravating
circumstances outweigh the mitigating circumstances. Tenn. Code Ann. § 39-13-204(g)(1) (1991).

                                                          -12-
defendants and defendants in all other cases are not similarly situated and thus, principles of equal
protection are simply not implicated here.7
         Fifth, Appellants contend that Tennessee’s death penalty statutes and procedures are
unconstitutional because the statutes do not narrow the class of death eligible defendants. As support
for this proposition, Appellants cite State v. Middlebrooks, in which the Tennessee Supreme Court
held that when a defendant is convicted of first-degree murder solely on the basis of felony-murder,
the felony-murder aggravating circumstance does not narrow the class of death eligible murderers
sufficiently to satisfy the federal and state constitutions. 840 S.W.2d 317, 346 (Tenn. 1992).
However, in this case, Appellants were charged and convicted of deliberate and premeditated first
degree murder, not felony murder. Further, the State sought imposition of the death penalty based
on Appellants’ prior convictions for felonies involving violence to the person and not on the felony
murder aggravating circumstance. Thus, Middlebrooks is inapplicable to this case.
         Finally, Appellants contend that Tennessee’s death penalty statutes and procedures provide
for constitutionally inadequate appellate review because the statutes do not require the jury to issue
a finding as to what mitigating circumstances were found and why the aggravating circumstances
outweighed the mitigating circumstances. This argument has previously been considered and
specifically rejected by the Tennessee Supreme Court. See State v. Brimmer, 876 S.W.2d 75, 87
(Tenn. 1994) (rejecting the argument that there is no meaningful appellate review of death sentences
because there is no requirement for written findings concerning mitigating circumstances). This issue
has no merit.

                                            V. VENUE
        Appellants contend that the trial court erred when it denied their request for a change of
venue. We disagree.
        “In all criminal prosecutions the venue may be changed upon motion of the defendant . . . if
it appears to the court that, due to undue excitement against the defendant in the county where the
offense was committed or any other cause, a fair trial probably could not be had.” Tenn. R. Crim.
P. 21(a). However, “[t]he mere fact that jurors have been exposed to pre-trial publicity will not
warrant a change of venue.” State v. Mann, 959 S.W.2d 503, 532 (Tenn. 1997). “The matter of
change of venue addresses itself to the sound discretion of the trial court, and a denial of a change
of venue will only be reversed on appeal for an affirmative and clear abuse of discretion.” State v.
Vann, 976 S.W.2d 93, 114 (Tenn. 1998). In addition, “[b]efore an accused is entitled to a reversal
of his conviction on the ground that the trial judge erroneously denied his motion for a change of
venue, he must demonstrate . . . that the jurors who actually sat were biased and/or prejudiced.”
Mann, 959 S.W.2d at 532 (citation and internal quotations omitted).


         7
           We note that even if we were to find that principles of equal protection were applicable, we would still find
that requiring ca pital defend ants to be sen tenced imm ediately b y a jury does not violate the right to equal protection.
When no suspect class and no fundamental right is involved, a classification by the State is valid if som e reasona ble basis
can be found for the classification, or if any state of facts may reasonably be conceived to justify it. See State v. Tester,
879 S.W.2d 823, 828–2 9 (Tenn . 1994). C apital defend ants are not a suspect class for equal protection analysis and there
is no fundam ental right to be sentenced by a judge in a separate sentencing hearing. In addition, requiring capital
defendan ts to be sentenced immediately by a jury is neither arbitrary nor unreasonable. Thus, the sentencing procedure
for capital defendants does not violate the right to equal protection.

                                                           -13-
        On January 6, 1996, Appellants filed a motion for change of venue in which they referred to
an article in that day’s edition of the Daily Times.8 Although the trial court’s order of January 31,
1996, which denied the motion states that the court heard testimony from witnesses and argument
from counsel, the record does not contain a transcript of this hearing. However, the record does
contain two volumes of excerpts from the voir dire that was conducted in this case. A review of
these excerpts indicates that the trial court carefully and meticulously orchestrated the jury selection
process to ensure the selection of an impartial jury. The trial court conducted individual voir dire
of the potential jurors in order to determine whether they had heard anything about the facts of this
case and the Connie Branam case that would interfere with their impartiality. The trial court then
gave counsel for the State and the defense the opportunity to ask further questions. The trial court
then excused any potential jurors who indicated that they would have difficulty being impartial.
        In this case, Appellants have failed to specifically identify any pretrial publicity that would
suggest that there was any “undue excitement against [them]” in Blount County or any other reason
why a fair trial could not be had in Blount County. Moreover, Appellants have failed to identify a
single juror who was allegedly biasedl. Quite simply, Appellants have failed to meet their burden
of showing that any of the jurors who sat during trial were actually biased or prejudiced against them.
This issue has no merit.

                                           VI. VOIR DIRE
        Appellants contend that the trial court erred when it limited the amount of questions that
could be asked during voir dire. We disagree.9
        “The ultimate goal of voir dire is to insure that jurors are competent, unbiased and impartial,
and the decision of how to conduct voir dire of prospective jurors rests within the sound discretion
of the trial court.” State v. Stephenson, 878 S.W.2d 530, 540 (Tenn. 1994).
        The record indicates that after five and one half days of voir dire, the trial court decided that
the process was taking too long. The trial court therefore decided that it would conduct the
individual voir dire of the potential jurors and it would then give counsel for the State and the
defense the opportunity to question the potential jurors about any ambiguous answers. The trial
court then conducted individual voir dire and defense counsel was allowed to question the potential
jurors about pretrial publicity and about their views on the death penalty.
        Appellants’ only allegation as to how they were prejudiced by the trial court’s method of
conducting voir dire is the vague statement that “they could not get a feel of the true feeling of the
jurors concerning the death penalty.” Indeed, Appellants have failed to indicate anything they could
or would have done differently if the trial court had conducted voir dire differently. In addition,
Appellants have failed to identify a single instance in which they were prevented from asking
questions of a potential juror. Further, Appellants have not even argued that any of the jurors who
were actually selected through this method of voir dire were biased or prejudiced. Indeed, the partial
excerpts that are contained in the record indicate that the trial court excused jurors who indicated that
they would be unable to be impartial. Under these circumstances, we conclude that the trial court


        8
            This article is not in the record.

        9
            Initially, we note that b ecause the re cord on ly contains pa rts of the voir dire , our review is lim ited.

                                                               -14-
did not abuse its discretion when it conducted voir dire in the manner that it did. This issue has no
merit.



                                VII. JURY SELECTION EXPERT
        Appellants contend that the trial court erred when it revoked its authorization for funds to pay
for a jury selection expert. We find no error here.
        The record indicates that on March 7, 1994, the trial court granted Appellants’ request for
funds to pay for a jury selection expert. Appellants then had the assistance of jury selection expert
Margie Fargo during the initial jury selection that began on January 22, 1996. Although it is not
clear from the record, the trial court apparently did not empanel this jury because the jury pool was
too small. Subsequently, during an ex parte hearing on June 18, 1996, the trial court revoked its
authorization of funds to pay for a jury selection expert. The trial court reasoned that because
defense counsel had spent approximately one and one-half weeks working with Fargo during the first
jury selection process, defense counsel had acquired the knowledge that was necessary to effectively
select a jury. Thus, the trial court ruled that continued employment of a jury selection expert was
not necessary to ensure that Appellants received a fair trial.
        During an ex parte hearing on July 29, 1996, Appellants asked the trial court to reconsider
its denial of funds for a jury selection expert. Appellants argued that a jury selection expert was
necessary in every capital case and in addition, a jury selection expert was needed in this case
because defense counsel had never selected a “death qualified” jury before. The trial court ruled that
Appellants’ right to a fair trial would not be violated by discontinuing the jury selection expert
services. The trial court stated that because defense counsel had already been instructed by Fargo
about how to select a jury and because three of the defense attorneys had over twenty years of almost
exclusive trial experience, defense counsel would be able to competently select a jury. In addition,
the trial court noted that Appellants had a right to have a jury that would apply the law fairly and
impartially, but Appellants did not have the right to have a jury that would never impose a death
sentence.
         Tennessee Code Annotated section 40-14-207 provides, in relevant part, that when a capital
defendant has been found to be indigent, the trial court “may in its discretion determine that
investigative or expert services or other similar services are necessary to ensure that the
constitutional rights of the defendant are properly protected.” Tenn. Code Ann. § 40-14-207(b)
(1990). “Absent an abuse of discretion, the trial court’s ruling on the necessity for an expert will be
upheld.” Ruff v. State, 978 S.W.2d 95, 101 (Tenn. 1998). In addition, the Tennessee Supreme
Court has expressly stated that a trial court may deny a defendant the assistance of a jury selection
expert when the defendant has failed to demonstrate a particularized need for the expert services.
Mann, 959 S.W.2d at 526; Black, 815 S.W.2d at 180.
        In this case, Appellants have failed to establish that they had a “particularized need” for the
continued use of the jury selection expert. Essentially, Appellants argue that because none of the
defense attorneys had ever selected a “death qualified” jury before, they were incapable of effectively




                                                 -15-
selecting a jury in this case without continued employment of the jury selection expert.10 The mere
fact that defense counsel had never selected a jury in a capital case before, standing alone, is
insufficient to establish a “particularized need” for the continued services of a jury selection expert
in this case. Indeed, as noted by the trial court, two of the defense attorneys had worked closely with
Fargo for one and one half weeks during the previous jury selection process.11 Further, defense
counsel stated at the hearing that Fargo had already collected information from Appellants and
defense counsel and had prepared two pages of questions for defense counsel to ask the potential
jurors. Under these circumstances, we conclude that the trial court did not abuse its discretion when
it revoked the funds for continued employment of Fargo. This issue is without merit.12

                         VIII. INTELLIGENCE QUOTIENT TESTING
        Appellants contend that the trial court erred when it failed to order that an intelligence
quotient (“IQ”) test be administered to Appellants while they were under the influence of alcohol.
We disagree.
        On July 27, 1995, Appellants filed a motion asking the court to order that they be tested for
IQ while they were under the influence of alcohol. At the hearing on the motion on January 30,
1996, Appellants argued that their consumption of alcohol shortly before the time that Griffin was
killed may have lowered their IQ level below 70, which would have rendered them statutorily
ineligible for the death penalty. 13 However, Appellants argue on appeal that their IQ level while they
were intoxicated was relevant to the elements of intent and premeditation.
        Dr. Peter Young testified for the defense that according to the results of IQ testing, Dellinger
had an IQ level of 72 in March of 1995 and Sutton had an IQ level of 76 in November of 1993. Dr.
Young then opined that Appellants’ use of alcohol could have reduced their IQ level to below 70 at
the time that Griffin was killed. On cross-examination, Dr. Young admitted that the authorities upon
which he based his opinion actually contradicted his opinion. Dr. Young also admitted that there
was no recognized statistical data that could be used to adjust Appellants’ IQ levels while they were
functioning in an intoxicated state.


         10
            Appellan ts also contend that they were entitled to a jury selection expert because a jury selection expert is
necessary for an effective defense in every capital case. However, this concluso ry statement is insufficient to establish
a “particularized need” for a jury selection expert in this case.

         11
              The record indicates that Fargo was paid $ 11,120.00 for these services.

         12
             W e note that in the argument for this issue, Appellants also make the conclusory allegations that the
revocation of funds for continued employment of Fargo violated: their right to due process, their right to equal protection,
their right to effective assistan ce of coun sel, and their righ t to compu lsory proce ss of witnesses. Howev er, Appe llants
have failed to supp ort these allega tions with any arg ument othe r than vague c itations to authorities that stand for the
general proposition that criminal defendants have constitutional rights to due process, equal protection, effective
assistance of counsel, and compulso ry process. Thus, Appellants have waived these arguments. Tenn. Ct. Crim. App.
R. 10(b).

         13
            Tennessee Code Annotated section 39-13-203 prohibits imposition of a death sentence on any defendant who,
at the time of the offense, had an IQ level of 70 or less, had deficits in adaptive behavior, and had mental retardation
manifested during the developmental period or by age eighteen. Tenn. Code Ann. § 39-13-203(a)–(b) (1991).

                                                            -16-
         Dr. Eugene Cord testified for the State that the results of an IQ test would be invalid if the
test had been given to an intoxicated person. Dr. Cord also testified that while intoxication would
impair performance, it would not affect IQ level. Dr. Cord testified that he was unaware of any
statistical data that could be used to adjust an individual’s IQ level while in an intoxicated state.
         At the conclusion of the hearing, the trial court found that there was no proof that alcohol use
had any effect on IQ level. The trial court also found that it would be useless to test Appellants for
IQ level while they were intoxicated because there was no recognized test for doing so. Moreover,
the trial court found that Appellants had also failed to prove that they had deficits in adaptive
behavior or that they had mental retardation that was manifested during the developmental period
or by age eighteen.
         We conclude that the evidence in the record does not preponderate against the trial court’s
findings that alcohol use does not effect IQ level and that there is no recognized test for determining
the IQ level of an intoxicated person. Thus, testing Appellants for IQ level while they were
intoxicated would have been an exercise in futility. In addition, the trial court’s refusal to order the
IQ tests did not prevent Appellants from showing that they did not have the required mental state for
first degree murder because they were intoxicated at the time of the offense. Indeed, there was a
great deal of evidence that Appellants had been drinking shortly before Griffin was killed and the
trial court instructed the jury that “[i]f you find that [Appellants] were intoxicated to the extent that
they could not have possessed the required culpable mental state, then they cannot be guilty of the
offense charged.” In short, the trial court did not err when it refused to order that Appellants be
tested for IQ levels while they were intoxicated. This issue has no merit.

   IX. ADMISSION OF EVIDENCE SEIZED PURSUANT TO A SEARCH WARRANT
        Appellant Dellinger contends that the trial court erred when it failed to suppress evidence that
was seized from his residence and the surrounding area pursuant to a search warrant.
        On February 28, 1992, Detective Widener obtained a search warrant for Dellinger’s
residence, outbuildings, and land. Later that same day, Widener and some other officers searched
Dellinger’s property. During the search, the officers discovered and seized numerous shotgun shells,
several shells form other weapons, a .303 rifle, and a Mossberg shotgun barrel. Dellinger contends
that these items were inadmissible evidence because the search of his property was invalid under the
Fourth Amendment to the United States Constitution and Article I, Section 7 of the Tennessee
Constitution.14

                         A. Validity of the Search Warrant on its Face
        Dellinger contends that the search warrant is void on its face because the supporting affidavit
does not create a nexus between his property and the murder of Griffin. We disagree.
        An affidavit which establishes probable cause is an indispensable prerequisite to the issuance
of a search warrant. See Tenn. Code. Ann. § 40-6-103 (1997); Tenn. R. Crim. P. 41(c). “An


         14
           The United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures . . . .” U.S. Const. amend. IV. The Tennessee
Constitution similarly provid es “[t]hat the pe ople shall be secure in their persons, houses, papers a nd possessions, from
unreasonable searches and seizures . . . .” Tenn. Const. art I, § 7.

                                                           -17-
affidavit in support of a search warrant must set forth facts from which a reasonable conclusion
might be drawn that the evidence is in the place to be searched.” State v. Smith, 868 S.W.2d 561,
572 (Tenn. 1993). “The nexus between the place to be searched and the items to be seized may be
established by the type of crime, the nature of the items, and the normal inferences where a criminal
would hide the evidence.” Id.
        The affidavit provide by Detective Widener in support of the search warrant in this case
provides:
        Affiant . . . has good ground and belief, and does believe that James A. Dellinger is in
        possession of . . . [o]ne 12 gauge shotgun, make and model unknown, and 12 gauge “00”
        shotgun shells, Remington Peters Brand.
                ....
        [A]ffiant has information to show that at approximately 7:11 p.m., 21 February 1992,
        Tommy Griffin was involved in a fight with James Dellinger and Gary Sutton. Tommy
        Griffin was arrested at Blount County and booked at approximately 7:35 p.m. At
        approximately 9:30 p.m. this same night, Tommy Griffin’s mobile home located in the same
        proximity as that of James Dellinger’s home burned to the ground. At 11:25 p.m. this night
        of 21 February 1992, at the Blount County Jail, James Dellinger and Gary Sutton showed up
        and made bail for Tommy Griffin, who was last seen alive leaving the Blount County Jail at
        11:25 p.m. on 21 February 1992, with Dellinger and Sutton. Affiant has further information
        to show that at 11:55 p.m. Tommy Griffin was shot dead with a 12 gauge shotgun; one blast
        striking him in the back of the head—that blast being “00” buckshot; and two spent 12 gauge
        “00” buckshot hulls, Remington Peters Brand, were found near the body.

        We conclude that this affidavit is sufficient on its face to establish that there was probable
cause to believe that the twelve gauge shotgun that was used to kill Griffin, as well as some shotgun
shells, would be found at Dellinger’s residence. The affidavit states that Dellinger had been in an
altercation with Griffin a few hours before Griffin was killed, that Griffin was last seen alive when
Dellinger bailed him out of jail thirty minutes before he was killed, and that Griffin was killed by
a shot from a twelve gauge shotgun. This information establishes probable cause to believe that
Dellinger participated in the murder of Griffin.15 In addition, it is reasonable to conclude that a
shotgun is an item that would be kept at the owner’s residence. Indeed, as noted by the Tennessee
Supreme Court in Smith,
        Where the object of the search is a weapon used in the crime or clothing worn at the time of
        the crime, the inference that the items are at the offender’s residence is especially
        compelling, at least in those cases where the perpetrator is unaware that the victim has been
        able to identify him to the police. Other instrumentalities are also likely to be in the
        offender’s home, especially when there is reason to believe he would make use of them there.

868 S.W.2d at 572. Thus, we conclude that the affidavit does establish a nexus between Dellinger’s
property and the items sought pursuant to the warrant. This issue has no merit.


        15
          W e note that “[o]nly the probability and not a prima facie showing of criminal activity is the standard of
probable cause.” State v. Do well, 705 S.W.2d 138 , 140 (Tenn. Crim. App. 1985).

                                                        -18-
                                        B. Truthfulness of the Affidavit

        Dellinger contends that the search warrant is invalid because it contains false statements and
misrepresentations. Specifically, Dellinger contends that the statement in the affidavit that “at
approximately 7:11 p.m., 21 February 1992, Tommy Griffin was involved in a fight with James
Dellinger and Gary Sutton” is false and misleading. We disagree.
        The Tennessee Supreme Court has set forth two circumstances which authorize impeachment
of a facially valid search warrant affidavit: (1) when “a false statement [is] made with intent to
deceive the Court, whether material or immaterial to the issue of probable cause, and (2) [when] a
false statement, essential to the establishment of probable cause, [is] recklessly made.” State v.
Little, 560 S.W.2d 403, 407 (Tenn. 1978). The trial court concluded that neither of these
circumstances was present and rather, the statements in the affidavit were merely reasonable
conclusions based on information that Officer Widener possessed at the time. We agree with the
trial court.
         During the hearing on this issue, Widener testified that he had not seen the altercation
between Appellants and Griffin and that none of the witnesses who had seen the altercation could
identify Appellants. However, Widener testified that he had received statements from the bartenders
at Howie’s Hideaway in which they stated that Appellants and Griffin had left the bar in a dark
Camaro at approximately 7:00 p.m. Widener also testified that he had statements from Mr. and Mrs.
Walker in which they stated that they had seen a fight while they were on the Alcoa Highway at 7:10
p.m. in which they saw two men attempting to pull a third man out of a dark-colored Camaro.
Widener further testified that he had statements from Mr. and Mrs. Davis in which they related how
they had seen a shirtless man staggering around by the Alcoa Highway sometime after 7:00 p.m. and
they had subsequently seen a dark-colored Camaro and a man who appeared to looking for
something in the same area. Widener also testified that he had received statements from Alcoa
police officers in which they related that they had found Griffin in this area at approximately 7:15
p.m. and that Griffin was bruised and he told them that he had been in a fight with some friends.
        We agree with the trial court that Widener’s statement in the affidavit that he had received
information that Griffin was involved in a fight with Appellants at approximately 7:11 p.m., on
February 21, 1992, was not a false statement that was made with intent to deceive the court or a false
statement that was made recklessly. Rather, as the trial court stated, it was merely a reasonable
conclusion based on the information that Widener had at the time. This issue has no merit.16

         C. Compliance with Rule 41(c) of the Tennessee Rules of Criminal Procedure


         16
             Dellinger also contends that W idener’s affidavit contains false statements about the source of the information
that prevented the magistrate fro m judging th e credibility of the source . Despite Dellinger’s contention, it is clear that
Widener made no representation that he had personally observed any of the events listed in the affidavit. In addition,
it is clear that the information contained in the affidavit, by its very nature, is information that was provided either by
other police officer s or by citizen w itnesses and n ot from a crim inal informant or tipster from “the criminal milieu.”
Thus, the informatio n is presume d to be reliab le. See State v. Stevens, 989 S.W.2d 290, 293 (Tenn. 1999) (citing State
v. Melson, 638 S.W.2d 342 , 354 (Tenn. 1982)).




                                                           -19-
      Dellinger contends that the search warrant is invalid because execution of the warrant failed
to comply with Rule 41(c) of the Tennessee Rules of Criminal Procedure. We disagree.


        Rule 41(c) provides:
        A warrant shall issue only on an affidavit or affidavits sworn to before the magistrate and
        establishing the grounds of issuing the warrant. . . . The magistrate shall prepare an original
        and two exact copies of the search warrant, one of which shall be kept by the magistrate as
        a part of his or her official records, and one of which shall be left with person or persons on
        whom the search warrant is served. . . . Failure . . . of the serving officer where possible to
        leave a copy with the person or persons on whom the search warrant is being served, shall
        make any search conducted under said search warrant an illegal search and any seizure
        thereunder an illegal seizure.
Tenn. R. Crim. P. 41(c).
         First, Dellinger contends that the search of his property was invalid because Widener failed
to leave a copy of the warrant with the person on whom it was served. Although Linda Dellinger,
who was at home during the execution of the warrant, denied that Widener had left a copy of the
warrant with her, Widener expressly testified that he did leave a copy of the warrant with her.
Although the trial court made no express finding on this issue, the trial court’s ruling upholding the
validity of the search necessarily implies that the court found that Widener did leave a copy of the
warrant with Linda Dellinger. The record does not preponderate against that finding.
        Second, Dellinger contends that the search of his property was invalid because Widener
failed to note on the officer’s return that he had left a copy of the warrant with Linda Dellinger.
However, nothing in Rule 41(c) requires this; the rule only requires that a copy of the warrant be left
with the person on whom it was served.
        Third, Dellinger contends that the search of his property was invalid because the warrant does
not indicate the time at which it was issued. However, the warrant expressly states that it was issued
at 2:25 p.m. on February 28, 1992, by Judge Charles S. Sexton. This issue has no merit.

             D. Compliance with Tennessee Code Annotated Section 40-6-104
       Dellinger contends that the search warrant is invalid because the supporting affidavit does
not comply with the requirements of Tennessee Code Annotated section 40-6-104. We disagree.
       Tennessee Code Annotated section 40-6-104 states that
              The magistrate, before issuing the warrant, shall examine on oath the
              complainant and any witness he may produce, and take their
              affidavits in writing, and cause them to be subscribed by the persons
              making them. The affidavits must set forth facts tending to establish
              the grounds of the application, or probable cause for believing that
              they exist.

Tenn. Code Ann. § 40-6-104 (1990). Dellinger contends that the affidavit supporting the warrant
is invalid because it contains no indication that it was subscribed and sworn before the warrant was
issued. Although the affidavit does not indicate what it time it was subscribed and sworn to, the


                                                 -20-
affidavit states that it was “[s]worn and subscribed before [Judge Charles S. Sexton] this 28 day of
February, 1992.” In addition, the warrant expressly states that “[p]roof by [a]ffidavit having been
made before [Judge Charles S. Sexton] by Detective Jim Widener.” This clearly indicates that the
affidavit was subscribed and sworn to before the warrant was issued. This issue has no merit.

       E. Execution of the Warrant in Sevier County by Officers from Blount County
        Dellinger contends that even if the search warrant was valid, the search of his property in
Sevier County was illegal because it was conducted by officers from Blount County. We disagree.
        Detective Widener of the Blount County Sheriff’s Department testified that when he executed
the search warrant for Dellinger’s property, he was accompanied by Captain McMahan of the Sevier
County Sheriff’s Department and approximately three other officers from the Sevier County Sheriff’s
Department. Widener also testified that he witnessed Dellinger’s step-daughter, Angela Gray, give
consent to search the trailer in which she resided on Dellinger’s property.
        Dellinger contends that because Rule 41(c) of the Tennessee Rules of Criminal Procedure
requires that a search warrant be “directed to and served by the sheriff or any deputy sheriff of the
county wherein issued, any constable, or any other peace officer with authority in the county,”
Widener had no authority as a Blount County officer to execute a warrant in Sevier County.
However, in Smith,, the Tennessee Supreme Court upheld a search that was conducted in Robertson
County by a Metropolitan Nashville police officer who was accompanied by an officer from the
Robertson County Sheriff’s Department. 868 S.W.2d at 572-73. The supreme court stated that the
Metropolitan Nashville police officer’s “participation in procuring the warrant and executing it d[id]
not invalidate the warrant.” Id. at 573. In addition, the Tennessee Supreme Court held in State v.
Pigford, 572 S.W.2d 921 (Tenn. 1978), that the issuance of a warrant to a federal officer and the
participation of the federal officer in the execution of the warrant did not invalidate the warrant so
long as it met all statutory requirements. Id. at 922. Thus, we conclude that because Widener was
accompanied by Captain McMahan when he executed the warrant for Dellinger’s property and the
warrant met all statutory requirements, the execution of the search warrant was valid.17
        Dellinger also contends that Gray’s consent to search the trailer in which she was living was
invalid merely because it was given to an officer from the Blount County Sheriff’s Department.
Dellinger has cited no authority for this proposition, and we conclude that the fact that the consent
was given to officers from Blount County is completely irrelevant in this case. This issue has no
merit.

                                      F. The Items Seized in the Search




         17
           Dellinger also challenges the manner in which the warrant was returned to the issuing magistrate. However,
as previously noted by this Court, “[an] improper return cannot negate the validity of an otherwise lega l search.” State
v. Robinson, 622 S.W.2d 62, 75 (Tenn. Crim. App. 1980).

                                                         -21-
         Dellinger contends that because the warrant only authorized a search for a twelve gauge
shotgun and Remington Peters Brand twelve gauge “00” shotgun shells, the seizure of all other
brands of shotgun shells was invalid.18 We disagree.
         As this Court has previously stated, “[t]here is no prohibition against the seizure of other
property not specifically mentioned in a valid search warrant, if such is relevant to the crimes
suggested by the warrant.” State v. Wright, 618 S.W.2d 310, 318 (Tenn. Crim. App. 1981); see
Vermilye v. State, 584 S.W.2d 226, 230 (Tenn. Crim. App. 1979). Because Griffin was killed by
a shot from a twelve gauge shotgun, it is obvious that all twelve gauge shotgun shells and hulls were
relevant to the crime, no matter what brand they were. Thus, the officers properly seized the shells
and hulls. This issue has no merit.

                              X. EVIDENCE OF OTHER CRIMES
        Appellants contend that the trial court erred when it admitted evidence about the altercation
that occurred on the Alcoa Highway, the burning of Griffin’s trailer, and the murder of Branam.
Specifically, Appellants contend that this evidence was inadmissible because its only purpose was
to show that they had violent character traits and even if it had been relevant to some other purpose,
its probative value was outweighed by its prejudicial effect. We disagree.
        Under Rule 404(b) of the Tennessee Rules of Evidence:
        Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person
        in order to show action in conformity with the character trait. It may, however, be admissible
        for other purposes. The conditions which must be satisfied before allowing such evidence
        are:
                (1) The court upon request must hold a hearing outside the jury’s presence;
                (2) The court must determine that a material issue exists other than conduct
                conforming with a character trait and must upon request state on the record the
                material issue, the ruling, and the reasons for admitting 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). A fourth prerequisite to admission is that the court find by clear and
convincing evidence that the defendant committed the other crime. Tenn. R. Evid. 404 (Advisory
Commission Comments); State v. DuBose, 953 S.W.2d 649, 654 (Tenn. 1997); State v. Parton, 694
S.W.2d 299, 303 (Tenn. 1985). When a trial court substantially complies with the procedural
requirements of the rule, its determination will not be overturned absent an abuse of discretion.




         18
            W e note that in the arg ument sectio n for this subissue , Dellinger d oes not spe cifically challenge the
admissibility of any other evidence seized during the search. Thus, we do not address the propriety of the seizure of the
other items tha t were not exp ressly identified in the warrant.

                                                         -22-
DuBose, 953 S.W.2d at 652. Where a court fails to substantially comply with these requirements,
the court’s decision is afforded no deference. Id.19

       A. The Altercation on the Alcoa Highway and the Burning of Griffin’s Trailer
        The trial court ruled that evidence about the altercation on the Alcoa Highway and the
burning of Griffin’s trailer was relevant to establishing the sequence of events on the night of
Griffin’s murder. In addition, the trial court also found that the probative value of this evidence was
not outweighed by danger of unfair prejudice.
        We conclude that the trial court did not abuse its discretion when it ruled that this evidence
was admissible. The evidence that showed that Appellants were involved in an altercation with
Griffin and that they set fire to Griffin’s trailer on the night that he was killed was relevant to
establishing Appellants’ intent and motive for killing Griffin. Indeed, the Tennessee Supreme Court
has previously recognized that evidence of prior acts of violence against the victim are admissible
under Rule 404(b) because the evidence is relevant to show the defendant’s hostility toward the
victim, malice, intent, and a settled purpose to harm the victim. State v. Smith, 868 S.W.2d 561, 574
(Tenn. 1993). Moreover, the evidence that tied Appellants to the other crimes against Griffin that
were committed just hours before Griffin was killed was also relevant to establishing the identity of
Griffin’s killers. Indeed, Rule 404(b) provides for the admissibility of evidence about other crimes
when relevant to issues of identity, intent, and motive. See Tenn. R. Evid. 404(b) (Sentencing
Commission Comments). We also conclude that the probative value of this evidence was not
outweighed by danger of unfair prejudice. This issue has no merit.

                                    B. The Connie Branam Murder
         The trial court ruled that the State could introduce evidence about the murder of Branam, but
the State could not introduce the fact that Appellants had been convicted of the Branam murder. The
trial court found that the evidence about the Branam murder was admissible because it was relevant
to establishing the identity of Griffin’s killers.
         We conclude that the trial court did not abuse its discretion when it ruled that this evidence
was admissible. The evidence regarding the Branam murder showed that when Appellants went to
Howie’s Hideaway with Branam the day after Griffin was killed, they acted suspiciously by
repeatedly questioning the barmaids about whether they remembered seeing them with Griffin on
the previous day and by attempting to fabricate a story about drinking at the bar with Griffin after

         19
            Although it is not clear, Appellants apparently do no t challenge the trial court’s compliance with the
procedural aspects of Rule 404(b) and instead, they only challenge the trial court’s conclusion that the evidence was
relevant to issues other than Appellants’ characters and that the probative value of the evidence was not outweighed by
danger of unfair preju dice. Thus, we do not address the trial court’s compliance with Rule 404(b)’s procedural
requirements. Indeed, although the record indicates that the trial court c onducted a hearing on this issue, the recor d only
contains a brief excerpt of the hearing. Therefore, we would be precluded from reviewing the trial court’s compliance
with the proced ural requirem ents even if Ap pellants had challenged it. It is the duty of the party seeking appellate review
to prepare a record which conveys a fair, accurate and complete account of what transpired with respect to the issues
raised by the party. State v. Ballard, 855 S.W.2d 557, 56 0–61 (T enn. 199 3); State v. Rob erts, 755 S.W.2d 833, 836
(Tenn. Crim. App. 1988). When the record is incomplete, and does not contain a transcript of the proceedings relevant
to an issue presented for review, this Court is pre cluded fro m conside ring the issue. State v. Matthews, 805 S.W.2d 776,
784 (Tenn. Crim. App. 1990 ).

                                                            -23-
he had been released from jail. In addition, the evidence showed that when Newman told Appellants
that she remembered them from the day before, Sutton attempted to convince Newman to come with
them. When Newman refused, Sutton threatened her. This evidence suggests that Appellants had
the intent to silence any witness who could connect them with Griffin’s murder. Thus, the evidence
of Branam’s murder was highly relevant to establishing the identity of Griffin’s killers because it
tended to show that Appellants had killed Branam in order to conceal the fact that they had murdered
Griffin. In addition, we conclude that the highly probative value of this evidence was not
outweighed by the danger of unfair prejudice. Under these circumstances, we cannot say that the
trial court abused its discretion when it admitted this evidence. This issue has no merit.20

               XI. ADMISSION OF A RIFLE AND SHELLS INTO EVIDENCE
         Appellant Sutton contends that the trial court erred when it admitted the .303 rifle and the
.303 shells that were found at Dellinger’s residence into evidence. Specifically, Sutton contends that
this evidence was inadmissible because it was not relevant to any issue in the case. We disagree.
         As this Court has previously stated, the determination of whether evidence is relevant is
within the sound discretion of the trial court. State v. Griffis, 964 S.W.2d 577, 594 (Tenn. Crim.
App. 1997). In this case, investigators testified that a .303 rifle shell had been found in the burned
car that contained Branam’s body. In addition, Carmen testified that he had determined that this rifle
shell was fired from the .303 rifle that was found in Dellinger’s residence. This evidence helped
connect Appellants to the Branam murder and as we have previously stated, evidence regarding the
Branam murder was very relevant to establishing the identity of Griffin’s killers. Thus, we conclude
that the trial court did not abuse its discretion when it admitted this evidence. This issue has no
merit.

           XII. ADMISSION OF GRIFFIN’S STATEMENTS INTO EVIDENCE
       Appellants contend that the trial court erred when it allowed the State to introduce the
statements that Griffin made to Officer Roberts concerning the incidents on the Alcoa Highway.
Specifically, Appellants contend that Griffin’s statements were inadmissible hearsay. We disagree.

         Rule 803 of the Tennessee Rules of Evidence provides, in relevant part,
         The following are not excluded by the hearsay rule:




         20
             Appellan ts also conten d that eviden ce abou t Branam ’s murder was inadm issible becau se the State failed to
prove that the body that was found in the burned vehicle was that of Branam. However, Dr. Bass testified that the body
had been identified as that of Branam by use of dental records. Although Appellants now claim th at Dr. Ba ss’s
identification of the body was improper, the record indicates that Appellants did not object to Dr. Bass’s testimony or
otherwise contest his identification of the body. Thus, they have waived any objec tion to the iden tification of Bra nam’s
body by Dr. B ass. See Tenn. R. App. P . 36(a) (“N othing in this rule shall be con strued as req uiring relief be gr anted to
a party . . . who failed to take whate ver action wa s reasonab ly available to prevent or nullify the harmful effect of an
error.”).




                                                            -24-
                  (2) Excited Utterance. A statement relating to a startling event or condition made
                  while the declarant was under the stress of excitement caused by the event or
                  condition.

Tenn. R. Evid. 803(2). The Tennessee Supreme Court has stated that in order for a statement to be
admissible under this rule, (1) there must be a startling event or condition, (2) the statement must
relate to the startling event or condition, and (3) the statement must be made while the declarant is
under the stress or excitement from the event or condition. State v. Gordon, 952 S.W.2d 817, 820
(Tenn. 1997). In addition, “[i]t is well established that trial courts have broad discretion in
determining the admissibility of evidence, and their rulings will not be reversed absent an abuse of
that discretion.” State v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996).
         During the hearing on this issue, Officer Roberts testified that on the night of February 21,
1992, he received a report of a possible fight involving individuals in a black Camaro with one
headlight. When Roberts arrived at the scene approximately two minutes later, he found Griffin
sitting in the bed of a pickup truck. Upon viewing Griffin, Roberts concluded that Griffin had been
in a fight because he was not wearing a shirt, he had scratches on his upper body, and he had a cut
behind his left ear. Roberts testified that when he asked Griffin what had happened, Griffin stated
that he had been in an argument with some friends and they had put him out of a car. Roberts
testified that at this time, Griffin’s voice was shaky, his lip was quivering, and he appeared to be
scared. When Roberts asked for further information, Griffin said, “I just can’t tell you man,” and
he looked like he was going to cry. Griffin also looked around as if he was looking for someone.
         We conclude that the trial court did not abuse its discretion when it admitted Griffin’s
statements under Rule 803(2). First, it is clear that the altercation during which Griffin sustained
scratches and a cut qualifies as a startling event under the rule. As noted by the supreme court, “the
possibilities are endless because any event deemed startling is sufficient.” Gordon, 952 S.W.2d at
820 (citation and internal quotations omitted). Second, Griffin’s statements all related to the
altercation. As noted by the supreme court, “considerable leeway is available, because the statement
may describe all or part of the event or condition, or deal with the effect or impact of that event or
condition.” Id. (citation and internal quotations omitted). Third, Griffin made his statements while
he was still under the stress or excitement of the altercation. For this third requirement, “[t]he
ultimate test is spontaneity and logical relation to the main event and where an act or declaration
springs out of the transaction while the parties are still laboring under the excitement and strain of
the circumstances and at a time so near it as to preclude the idea of deliberation and fabrication.”
Id. (citation omitted). In this case, Roberts testified that he responded to the scene within two
minutes of receiving the call and that when he talked to Griffin, Griffin’s voice was shaky, his lip
was quivering, and he appeared to be scared and ready to cry. Thus, the evidence shows that Griffin
was still under the stress or excitement of the altercation when he made his statements.21 This issue
has no merit.


         21
            Appellan ts contend that because Griffin’s statements were given in response to Roberts’ questions, the
statements were not spontaneous and thus, were not made while under stress or excitement. However, the Tennessee
Supreme Court stated in Gordon that “statements made in response to questions may still be admissible if the declarant
is under the ex citement or stre ss of the event.” 9 52 S.W .2d at 820 –21.

                                                        -25-
                  XIII. ADMISSION OF THE TRANSCRIPT OF SUTTON’S
                          PRETRIAL STATEMENT INTO EVIDENCE
        Appellant Sutton contends that the trial court erred when it allowed the State to introduce a
transcript of his pretrial statement into evidence. We disagree.
        Initially, we note once again that “[i]t is well established that trial courts have broad
discretion in determining the admissibility of evidence, and their rulings will not be reversed absent
an abuse of that discretion.” McLeod, 937 S.W.2d at 871.
        Detective Widener testified that he had interviewed Sutton at the Sevier County Sheriff’s
Department on February 25, 1992. Widener also testified that this interview had been electronically
recorded. The State then introduced the audiotape of the interview and began playing the tape for
the jury. After a few minutes, the trial court stopped the tape and asked the jurors whether they could
understand the tape. The jurors indicated that they could not.
        During a subsequent jury out hearing, Widener testified that he was present when Sutton gave
his statement, that he had heard Sutton’s words, that he had previously listened to the tape and
verified that the transcript of the tape was accurate. Widener testified that he had listened to the tape
when it was in “better shape” than it was at trial and he had compared it to the transcript several
times. Widener acknowledged that there were many instances in which the transcript indicated that
a part of the tape was “unintelligible.” The trial court subsequently allowed the State to introduce
the transcript into evidence.
        Sutton essentially argues that the transcript should not have been admitted because it was not
accurate. This argument ignores the testimony of Widener that he heard Sutton give the statement,
that he had reviewed the tape, that he had reviewed the transcript, and that he had determined that
the transcript was accurate. The fact that the transcript contains numerous indications that a part of
the tape was “unintelligible” does not mean that the transcript was inaccurate. Thus, we conclude
that the trial court did not abuse its discretion when it admitted this evidence. This issue has no
merit.

         XIV. ADMISSION OF MISSING PERSON REPORTS INTO EVIDENCE
        Appellants contend that the trial court erred when it allowed the State to introduce the two
missing persons reports filed by Viola Griffin in which she stated that she had not seen or heard from
Griffin since February 21, 1992, at 11:45 p.m. and she had not seen or heard from Branam since
February 22, 1992, at 1:00 p.m. We conclude that Appellants have waived this issue.
        The record indicates that when the State sought to introduce the reports during rebuttal,
Appellant Sutton objected on the ground that the reports were not proper rebuttal evidence. After
a bench conference, Sutton objected again on the ground that the reports were irrelevant and
immaterial. The trial court overruled the objection.
        On appeal, Appellants have abandoned the argument that the reports were improper rebuttal
evidence. Thus, we do not address it. Instead, Appellants argue for the first time on appeal that the
reports were inadmissible hearsay evidence.22 “It is elementary that a party may not take one position
regarding an issue in the trial court, change his strategy or position in mid-stream, and advocate a


        22
           The record indicates that although Appellants made one vague reference to hearsay during the bench
conferenc e, that was clear ly not the basis o f their objectio n to this eviden ce.

                                                    -26-
different ground or reason in this Court.” State v. Dobbins, 754 S.W.2d 637, 641 (Tenn. Crim. App.
1988). Thus, this issue is waived.

                           XV. EXPERT TESTIMONY IN REBUTTAL
         Appellants contend that the trial court erred when it allowed Dr. Harlan to testify for the State
in rebuttal. We disagree.
         The determination of the admissibility of rebuttal evidence lies in the discretion of the trial
court and this Court will not interfere with the exercise of this discretion unless there has been clear
abuse of discretion appearing on the face of the record. State v. Kendricks, 947 S.W.2d 875, 884
(Tenn. Crim. App. 1996).
         The record indicates that when the State attempted to call Dr. Cleland Blake, Appellants
objected and the trial court conducted a jury out hearing. Although the record indicates that the trial
court subsequently ruled that Dr. Blake would not be allowed to testify, the transcript of the hearing
was not included in the record pursuant to instructions from defense counsel. The State therefore
relied on the testimony of Dr. Ellington and Jason McDonald to establish the time of Griffin’s death.
         As part of the defense proof, Dr. Wolfe opined that Griffin had died between twenty-four and
thirty-six hours before his body was discovered on February 24, 1992. Thereafter, the State called
Dr. Harlan in rebuttal and Appellants objected. The trial court overruled the objection, and Dr.
Harlan testified that it was his opinion that Griffin died between 6:00 p.m. on February 21, 1992, and
8:00 a.m. on February 22, 1992. Dr. Harlan also testified that he had reviewed the testimony of Dr.
Wolfe and he disagreed with many of the conclusions that Dr. Wolfe had made from viewing the
evidence in the case. The trial court then asked whether Appellants had anything in surrebuttal, and
Appellants stated that they did not.
         Appellants essentially argue that because Dr. Harlan could have testified during the State’s
case in chief, he should not have been allowed to testify during rebuttal. However, this Court has
previously stated that “we have observed that it is within the discretion of the trial court to permit
the state, in a criminal case, to introduce in rebuttal even testimony which should have been
introduced in chief.” Kendricks, 947 S.W.2d at 884 (citation omitted). It is clear that the State could
have called Dr. Harlan during its case in chief. However, although the record is not entirely clear
because defense counsel prevented the relevant hearing from being transcribed into the record, a
reading of the record indicates that the State’s purpose in calling Dr. Blake was to elicit expert
testimony about the time of Griffin’s death. When the trial court ruled that Dr. Blake could not
testify, the State decided to rely on what was essentially lay testimony from Ellington and McDonald
about the time of death. Once Appellants proffered the testimony of Dr. Wolfe, it was within the
trial court’s discretion to allow the State to call its own expert to rebut Wolfe’s opinion.23
         Appellants also contend that it was improper for Dr. Harlan to testify in rebuttal because the
State did not disclose Dr. Harlan’s identity to Appellants before trial. However, it is clear that the

         23
           In support o f their argumen t that Dr. Ha rlan should not have been allowed to testify during rebuttal because
he could hav e testified during the State’s case in chief, Appe llants cite State v. West , 825 S.W.2d 695 (Tenn. Crim. App.
1992). However West is distinguishable from this case because in West , this Court held th at the testimony during
rebuttal was impro perly admitted b ecause the tes timony did n ot rebut anyth ing and thus, it should have been proffered
during the State’s case in chief. Id. at 698. In this case, Dr. Harlan’s testimony clearly rebutted the testimony of Dr.
Wolfe.

                                                           -27-
State did not disclose Dr. Harlan’s identity before trial because it intended to call Dr. Blake as its
expert. In addition, it is well-established that the State’s duty to disclose the names of its witnesses
is merely directory, not mandatory. State v. Harris, 839 S.W.2d 54, 69 (Tenn. 1992). In addition,
a defendant will be entitled to relief for nondisclosure only if he or she can demonstrate prejudice,
bad faith, or undue advantage. Id. In this case, Appellants claim that they were prejudiced because
the fact that Dr. Harlan testified without prior notice prevented them from offering anything in
surrebuttal. However, the record indicates that when the trial court asked Appellants whether they
had anything in surrebuttal, Appellants neither expressed an intention to offer surrebuttal nor asked
for a continuance in order to call other witnesses. Thus, Appellants have waived any claim that they
were prevented from calling further witnesses to offer surrebuttal. See Tenn. R. App. P. 36(a). This
issue has no merit.

                           XVI. SUFFICIENCY OF THE EVIDENCE
         Both Appellants contend that the evidence was insufficient to support their convictions for
first degree murder because the State failed to establish all of the elements of the offense beyond a
reasonable doubt. In addition, Appellant Sutton contends that the evidence was insufficient to
support his conviction under the theory that he was criminally responsible for the conduct of
Appellant Dellinger.
         When an appellant challenges the sufficiency of the evidence, this Court is obliged to review
that challenge according to certain well-settled principles. A verdict of guilty by the jury, approved
by the trial judge, accredits the testimony of the State’s witnesses and resolves all conflicts in the
testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). Although an
accused is originally cloaked with a presumption of innocence, a jury verdict removes this
presumption and replaces it with one of guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
Hence, on appeal, the burden of proof rests with Appellant to demonstrate the insufficiency of the
convicting evidence. Id. On appeal, “the [S]tate is entitled to the strongest legitimate view of the
evidence as well as all reasonable and legitimate inferences that may be drawn therefrom.” Id.
Where the sufficiency of the evidence is contested on appeal, the relevant question for the reviewing
court is whether any rational trier of fact could have found the accused guilty of every element of the
offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789,
61 L.Ed.2d 560 (1979). In conducting our evaluation of the convicting evidence, this Court is
precluded from reweighing or reconsidering the evidence. State v. Morgan, 929 S.W.2d 380, 383
(Tenn. Crim. App. 1996). Moreover, this Court may not substitute its own inferences “for those
drawn by the trier of fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779. Finally,
Rule 13(e) of the Tennessee Rules of Appellate Procedure provides, “findings of guilt in criminal
actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support
the findings by the trier of fact beyond a reasonable doubt.”

                         A. The Elements of First Degree Murder
      Appellants contend that the State failed to establish all of the elements of first degree murder
beyond a reasonable doubt. We disagree.




                                                 -28-
         When Griffin was killed in 1992, Tennessee’s first-degree murder statute provided that
“[f]irst degree murder is: [a]n intentional, premeditated and deliberate killing of another.” Tenn.
Code Ann. § 39-13-202 (1991).24
         First, Appellants contend that the evidence was insufficient to support their convictions
because the State failed to prove that Appellants were the individuals who killed Griffin. However,
we conclude that when the evidence is viewed in the light most favorable to the State, as it must be,
the evidence was clearly sufficient for a rational jury to find beyond a reasonable doubt that
Appellants killed Griffin.
         Carr saw Appellants and Griffin come to Howie’s Hideaway on February 21, 1992, in a dark
blue Camaro or Trans Am. Newman observed Appellants and Griffin when they left Howie’s
Hideaway at approximately 7:00 p.m. Approximately ten minutes later, Mr. and Mrs. Walker
observed an altercation on the Alcoa Highway in which a person standing outside of a dark-colored
Camaro with one headlight appeared to be fighting with a person inside the Camaro. That same
night, Davis saw a shirtless man stumbling around by the Alcoa Highway and she subsequently saw
two men standing by a dark-colored Camaro in the same area who appeared to be looking for
something.
         When Officer Roberts responded to the call about the altercation on the Alcoa Highway, he
found a shirtless Griffin sitting on the bed of a pickup truck. Griffin initially stated that an argument
had taken place and that some friends put him out of a car, but when questioned further, he stated
that the men were not really his friends. Griffin refused to give any other information and Roberts
subsequently arrested Griffin for public intoxication and took him to the Blount County Jail.
Sergeant Herron participated in the booking of Griffin into the jail at 7:40 p.m. Approximately forty-
five minutes later, Dellinger approached Herron and asked when Griffin could be released. Herron
told Dellinger that the victim would be kept a minimum of four hours.
         At approximately 9:00 p.m., Henry saw Dellinger’s white pickup truck drive up the road from
the direction of Griffin’s trailer and pull into Dellinger’s driveway. A few seconds later, Henry saw
flames shooting out of Griffin’s trailer. Clabo subsequently investigated the fire and concluded that
the fire had been set by human hands using a liquid accelerant.
         When Jennifer Branam learned that Griffin’s trailer was on fire, she went to Dellinger’s
trailer and asked Appellants to accompany her to Griffin’s trailer. Dellinger then stated that he could
not go because he was in enough trouble already. Later that night, Jennifer Branam saw Appellants
move an object that looked like a shotgun from Dellinger’s truck to Linda Dellinger’s car.
         Griffin was subsequently released from jail at 11:25 p.m. when Dellinger returned to the jail
and posted a cash bond. Shortly thereafter, Lieutenant Defoe saw Appellants leave the jail with an
individual who had just been released.
         At 11:55 p.m., McDonald heard two or three gunshots coming from the Blue Springs/Blue
Hole area near his home. On February 24, 1992, Carter found the body of a man in the Blue Hole
area. Hamilton stated that he subsequently located the body and he also found two spent twelve-
gauge shotgun shells and two empty beer cans by the body. Agent Carman subsequently determined
that shotgun shells found in Dellinger’s yard and the surrounding area and the shells found near


        24
          A 1995 amendment eliminated deliberation as an element of first-degree murder. See Tenn. Code Ann. § 39-
13-202(a)(1) (1997) (“First degree murder is: A premeditated and intentional killing of another.”).

                                                      -29-
Griffin’s body had been fired from the same shotgun. Dr. Harlan opined that Griffin died between
6:00 p.m. on February 21, 1992, and 8:00 a.m. on February 22, 1992.
        The next day, Appellants went to Howie’s Hideaway with Branam. While they were there,
Dellinger repeatedly asked Carr and Newman whether they remembered Appellants from the
previous day. Sutton subsequently attempted to get Newman to leave with Appellants and when
she refused, Sutton threatened her. Appellants and Branam left at 6:30 p.m., and the flames from
the vehicle that contained Branam’s body were seen at 8:00 p.m. Clabo subsequently concluded that
the fire had been set by human hands with the use of an outside ignition source. Carman
subsequently determined that the .303 rifle shell recovered from the scene of the burned vehicle was
fired from the rifle that was found in Dellinger’s home.
        It is clear that the above evidence, when viewed in the light most favorable to the State, is
sufficient for a rational jury to find beyond a reasonable doubt that Appellants were the individuals
who killed Griffin. A rational jury could conclude from this evidence that Appellants fought with
Griffin at approximately 7:10 p.m., set fire to Griffin’s trailer at approximately 9:00 p.m., and then
retreived a shotgun. A rational jury could also conclude that Griffin was killed at 11:55 p.m., only
thirty minutes after he was last seen alive in the presence of Appellants. A rational jury could also
conclude that Appellants had murdered Branam in order to cover-up the murder of Griffin. Thus,
a rational jury could certainly conclude that because Appellants fought with Griffin five hours before
he was killed, that Appellants set fire to Griffin’s trailer three hours before he was killed, that
Appellants bailed Griffin out of jail and took him with them thirty minutes before he was killed, that
the shotgun hulls found near Griffin’s body had been fired from the same gun as the hulls found in
Dellinger’s yard, and that Appellants killed Branam in order to conceal the murder of Griffin, that
Appellants were the individuals who killed Griffin.25
        Appellants also claim that the evidence was insufficient to support their conviction because
the State failed to prove that the murder was committed with premeditation and deliberation.
Premeditation requires a showing of a previously formed design or intent to kill. State v. West, 844
S.W.2d 144, 147 (Tenn. 1992). Deliberation requires that the offense be committed with cool
purpose, free of the passions of the moment. Id. Although premeditation “may be formed in an
instant, deliberation requires some period of reflection, during which the mind is ‘free from the
influence of excitement, or passion.’” State v. Brown, 836 S.W.2d 530, 538 (Tenn. 1992) (citation
omitted). While it remains true that no specific length of time is required for the formation of a cool,
dispassionate intent to kill, more than a “split-second” of reflection is required in order to satisfy the
elements of premeditation and deliberation. Id. at 543.
        The elements of premeditation and deliberation are questions for the jury which may be
established by proof of the circumstances surrounding the killing. State v. Bland, 958 S.W.2d 651,
660 (Tenn. 1997); State v. Bordis, 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995). Tennessee courts
have delineated several circumstances that may be indicative of premeditation and deliberation,
including planning activity prior to the actual killing, State v. Schafer, 973 S.W.2d 269, 273 (Tenn.
Crim. App. 1997); facts from which motive may be inferred, Bordis, 905 S.W.2d at 222; the use of


         25
            Although it is not clear, Ap pellants app arently claim that the evidence was also insufficient beca use the State
failed to prove tha t the body fou nd in the Blu e Hole ar ea was th at of Griffin. We reject this contention because the
evidence clearly shows that the State established that the body was that of Griffin.

                                                            -30-
a deadly weapon upon an unarmed victim, Brown, 836 S.W.2d at 841; and facts about the nature of
the killing. Bordis, 905 S.W.2d at 222.
         We conclude that the above evidence, when viewed in the light most favorable to the State,
was sufficient for a rational jury to conclude beyond a reasonable doubt that Appellants killed Griffin
with both premeditation and deliberation. First, there was evidence that Appellants planned the
murder of Griffin before they killed him. Indeed, the evidence shows that after fighting with Griffin,
Appellants attempted to bail him out of jail. When this attempt failed, Appellants burned down
Griffin’s trailer and then retrieved a shotgun. Appellants then returned to the jail, successfully
obtained Griffin’s release, and then killed him thirty minutes later. Second, there was evidence that
Appellants had a motive to kill Griffin. For whatever reason, Appellants were angry enough with
Griffin to fight with him and then set fire to his residence. Third, there is absolutely no indication
that Griffin was armed when he was shot with the shotgun. Fourth, the fact that Griffin was taken
to a remote area and was then shot in the back of the head indicates that the killing was done as part
of a preconceived design. In short, a rational jury could conclude from these circumstances that
Appellants decided to kill Griffin and then reflected on that decision with cool purpose for some
period that was at least more than a “split-second” before they shot and killed him. This issue has
no merit.

                                      B. Criminal Responsibility
        Sutton contends that the evidence was insufficient to support his conviction because there
was no proof that he fired the shot that killed Griffin or that he did anything to assist Dellinger. We
disagree.
        Tennessee Code Annotated section 39-11-402 states in relevant part that
        A person is criminally responsible for an offense committed by the conduct of another if .
        . . [a]cting with intent to promote or assist the commission of the offense, or to benefit in the
        proceeds or results of the offense, the person solicits, directs, aids, or attempts to aid another
        person to commit the offense.”
Tenn. Code Ann. § 39-11-402(2) (1991). In order to establish that the defendant had the intent
required by this subsection, it must be shown “that the defendant in some way associate[d] himself
with the venture, act[ed] with knowledge that an offense [wa]s to be committed, and share[d] in the
criminal intent of the principal in the first degree.” State v. Maxey, 898 S.W.2d 756, 757 (Tenn.
Crim. App. 1994) (citation and internal quotations omitted). “The defendant must knowingly,
voluntarily and with common intent unite with the principal offenders in the commission of the
crime.” Id. (citation and internal quotations omitted).
        The evidence in this case showed that both Appellants were drinking with Griffin in Howie’s
Hideaway on February 21, 1992. Both Appellants and Griffin subsequently left the establishment
in Sutton’s Camaro. Ten minutes later, the Walkers observed the altercation on the Alcoa Highway.
Two hours later, Henry saw Dellinger’s truck driving away from Griffin’s burning trailer. When
Jennifer Branam then went to Dellinger’s trailer to obtain help, Sutton lied to her and stated that
Griffin was in Blount County with a woman. Later that night, Jennifer Branam saw both Appellants
take an object that looked like a shotgun out of Dellinger’s truck and place it in a car. Both
Appellants subsequently went to the Blount County Jail and obtained Griffin’s release thirty minutes
before he was killed. The next day, Appellants and Branam went back to Howie’s hideaway. When


                                                  -31-
Newman stated that she remembered Appellants and Griffin from the previous day, Sutton attempted
to get Newman to come with them and when she refused, he threatened her. We conclude that this
evidence is clearly sufficient for a rational jury to find beyond a reasonable doubt that, even if Sutton
had not fired the shot that killed Griffin, Sutton was criminally responsible for the murder of Griffin
by Dellinger because Sutton had aided Dellinger with the intent of promoting or assisting the murder
of Griffin. This issue has no merit.26

                            XVII. FAILURE TO REMOVE A JUROR
         Appellants contend that the trial court erred when it failed to remove a juror whose ex-wife
had engaged in misconduct. We disagree.
         “Whether to remove jurors who become or are found to be unable or disqualified to perform
their duties lies in the discretion of the trial court.” State v. Forbes, 918 S.W.2d 431, 451 (Tenn.
Crim. App. 1995) (citation and internal quotations omitted).
         The record indicates that at the conclusion of the proof and closing arguments in this case,
one of the jurors reported that earlier that day he had received a phone call from his ex-wife in which
she had stated that “they” would give him $500.00 in return for a not guilty verdict for Sutton. The
juror reported the call to a court officer, and the officer told the juror that he would notify the court
and he told the juror not to tell any other jurors about the call.
         After the juror explained what had happened, the trial court commended him for the way that
he had handled the situation. The trial court then asked the juror how the phone call would affect
his feelings about serving on the jury and about following the court’s instructions. The juror
responded, “I already told her, it’s not going to change. I’m not going to change what I already
decided on. They can take the money and do whatever they want with it. It just made me mad . .
. .” After this somewhat ambiguous statement, the trial court asked the juror whether he would be
able to vote according to the dictates of his conscience based on the proof and the instructions from
the court. The juror responded that he would. After a brief bench conference, the trial court asked
the juror whether he had told any other jurors about the phone call and the juror responded that he
had not. The trial court then asked the juror again whether the phone call would inhibit his ability
to reach a verdict based on the facts and the law. The juror responded that it would not.
         Appellants’ argument as to why this juror should have been removed is far from clear.
However, it appears that their contention is that the juror’s statement that the phone call would not
“change what I already decided on” demonstrates that the juror was biased against them and that he
had a preconceived judgment about the case. This statement could have any number of meanings
in the context in which it was given, including an assertion that the phone call would not affect his
ability to be impartial. In any case, the trial court clarified the meaning of the statement by asking
the juror about whether the phone call would affect his ability to impartially reach a verdict based
on the proof and the court’s instructions about the law. On two occasions, the juror responded that
he would follow the law and apply it to the proof that had been presented. Under these


         26
           Appellant Sutton also contends that the trial court erred when it failed to grant their motion for judgment of
acquittal. A motion for judgment of acquittal requires that the trial court determine the sufficiency of the evidence.
Tenn. R. Crim. P. 29(a). For the same reasons we conclude th at the evidence was sufficient to support A ppellants’
convictions, we also conclude that the trial court did not err when it failed to grant the mo tion for judg ment of acq uittal.

                                                            -32-
circumstances, we conclude that the trial court did not abuse its discretion when it failed to remove
this juror. This issue has no merit.



                          XVIII. FAILURE TO GRANT A MISTRIAL

         Appellants contend that the trial court erred when it failed to grant a mistrial after jurors
where exposed to evidence indicating that Appellants had already been tried for the Branam murder.
We disagree.
         The decision of whether to grant a mistrial is within the sound discretion of the trial court.
State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996). This Court will not disturb that
decision absent a finding of an abuse of discretion. State v. Adkins, 786 S.W.2d 642, 644 (Tenn.
1990). “Generally, a mistrial will be declared in a criminal case only when there is a ‘manifest
necessity’ requiring such action by the trial judge.” State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn.
Crim. App. 1991). “The purpose for declaring a mistrial is to correct damage done to the judicial
process when some event has occurred which precludes an impartial verdict.” State v. Williams, 929
S.W.2d 385, 388 (Tenn. Crim. App. 1996). In determining whether there is a “manifest necessity”
for a mistrial, “‘no abstract formula should be mechanically applied and all circumstances should
be taken into account.’” State v. Mounce, 859 S.W.2d 319, 322 (Tenn. 1993) (citation omitted).
         The record indicates that while Larry Muncy was testifying about the chain of custody of
various pieces of evidence, he stated that certain evidence had been turned over to Jenny Noe “during
the course of the trial.” Defense counsel then objected and moved for a mistrial on the ground that
the jurors could assume based on Muncy’s use of the word “trial” that Appellants had previously
been charged and tried for the murder of Branam. The court overruled the motion.
         The record also indicates that the trial court subsequently received a note from an alternate
juror in which the juror indicated that he had seen a bag with the words “not admitted in Sevier
County trial” sitting on a table. When the trial court questioned the juror about this incident, the
juror stated that because he had seen the bag and because Muncy had previously used the word
“trial,” he assumed that there had already been a trial in Sevier County. The juror then stated that
he had mentioned the bag to one other juror, but she had given no response. The trial court then
asked the juror whether seeing the bag or hearing the word “trial” would have any influence on his
ability to base his verdict on the proof presented in this case and the juror responded, “None
whatsoever.” Defense counsel renewed the motion for a mistrial and the court overruled it.
         Appellants argue that they were entitled to a mistrial based on the authority of State v. Fleece,
925 S.W.2d 558 (Tenn. Crim. App. 1995). In Fleece this Court held that a defendant who was
convicted of driving under the influence was entitled to a new trial because the prosecutor had
improperly created the inference that the defendant had a previous conviction for driving under the
influence by repeatedly questioning the defendant about restrictions on his license while waving the
folder from the previous case in front of the jury. Id. at 560–61. The two incidents in this case fall
far short of the impermissible conduct of the prosecutor in Fleece. Unlike the intentional conduct
by the prosecutor in Fleece, there is no indication that Muncy’s use of the word “trial” and the
placement of the bag on the table were anything more than inadvertent mistakes. Further, the use


                                                  -33-
of the word trial and the writing on the bag did not create any inference whatsoever about the verdict
in the Sevier County trial. In fact, when the trial court specifically asked the juror whether anything
he had seen or heard had indicated what the outcome of the Sevier County trial had been, the juror
responded no. Under these circumstances, we conclude that the trial court did not abuse its
discretion when it ruled that there was no “manifest necessity” for a mistrial in this case. This issue
has no merit.

       XIX. THE STATE’S CLOSING ARGUMENT DURING THE GUILT PHASE
        Appellants contend that the State’s closing argument was improper and prejudicial. We
conclude that Appellants have waived this issue.
        Initially, we note that the record indicates that Appellant’s did not make a single objection
to anything that either of the two prosecutors said during their closing arguments. By failing to make
a contemporaneous objection, Appellants waived this issue. See State v. Farmer, 927 S.W.2d 582,
591 (Tenn. Crim. App. 1995); Tenn. R. App. P. 36(a). Moreover, Appellants have failed to identify
which of the two prosecutors gave the allegedly improper argument and they have failed to identify
even a single statement that they claim was improper. It is not the function of this Court to speculate
as to what portions of the arguments Appellants would contend were improper. By failing to include
appropriate citations to the record, Appellants have waived this issue. Tenn. Ct. Crim. App. R.
10(b).


           XX. FAILURE TO INSTRUCT ON A LESSER INCLUDED OFFENSE
        Appellant Sutton contends that the trial court erred when it failed to instruct the jury on the
lesser included offense of facilitation of a felony. We disagree.
        Tennessee Code Annotated section 39-11-403 provides in relevant part that
                 A person is criminally responsible for the facilitation of a felony if, knowing
                 that another intends to commit a specific felony, but without the intent
                 required for criminal responsibility under § 39-11-402(2), the person
                 knowingly furnishes substantial assistance in the commission of the felony.
Tenn. Code Ann. § 39-11-403(a) (1991). As previously noted, the intent required for criminal
responsibility under section 39-11-402(2) is “intent to promote or assist the commission of the
offense, or to benefit in the proceeds or results of the offense.” Tenn. Code Ann. § 39-11-402(2)
(1991).
        In State v. Burns, 6 S.W.3d 453 (Tenn.1999) the Tennessee Supreme Court concluded that
an offense is a lesser-included offense of another if:
        (a) all of its statutory elements are included within the statutory elements of the
        offense charged; or
        (b) it fails to meet the definition in part (a) only in the respect that it contains a
        statutory element or elements establishing
        (1) a different mental state indicating a lesser kind of culpability; and/or
        (2) a less serious harm or risk of harm to the same person, property or public interest;
        or
        (c) it consists of


                                                 -34-
        (1) facilitation of the offense charged or of an offense that otherwise meets the
        definition of lesser-included offense in part (a) or (b); or
        (2) an attempt to commit the offense charged or an offense that otherwise meets the
        definition in part (a) or (b); or
        (3) solicitation to commit the offense charged or an offense that otherwise meets the
        definition of lesser-included offense in part (a) or (b).


Id. at 466-67. The supreme court thus concluded, and recently reiterated, that facilitation is a
lesser-included offense when a defendant is charged with criminal responsibility for the conduct of
another. Id. at 470; State v. Fowler, 23 S.W.3d 285, 288 (Tenn. 2000).
         “This does not mean, however, that an instruction must be given simply because an offense
is a lesser-included offense of another.” Fowler, 23 S.W.3d at 288. “First, the trial court must
determine whether ‘any evidence exists that reasonable minds could accept as to the lesser included
offense.’” Id. at 289 (citing Burns, 6 S.W.3d at 469). “Second, the trial court must determine
whether the evidence viewed in this light is legally sufficient to support a conviction for the lesser-
included offense.” Id.
          In this case, there is absolutely no evidence in the record from which a rational jury could
conclude that Dellinger forced Sutton to participate in the murder against his will. Further, we hold
that a rational jury could not conclude from the evidence in the record that Sutton was merely a
bystander during the murder of Griffin. The State’s theory of the case, which was supported by
extensive proof, was that Dellinger and Sutton acted in unison with a common purpose and design
to kill Griffin. Indeed, the State’s theory was that both Appellants fought with Griffin, attempted
to bail Griffin out of jail, set fire to Griffin’s trailer, transferred the murder weapon from a truck to
a car, successfully bailed Griffin out of jail, and then were present while one of them fired the fatal
shot. The defense theory for both Appellants was that neither one of them committed the murder.
Indeed, much of the defense proof went to establishing that they were friends with Griffin and had
no reason to kill him, that Griffin died long after he was last seen with Appellants, and that there
were several other possible culprits in this case. Thus, the evidence in the record created an “all or
nothing” situation in which Sutton and Dellinger both actively participated and promoted the murder
of Griffin or neither one of them did. There is simply no evidence in the record from which a
rational jury could conclude that Sutton provided substantial assistance to Dellinger without having
the intent to promote or assist the commission of the offense. Therefore, the trial court did not err
when it failed to instruct the jury on the lesser included offense of facilitation of a felony. This issue
has no merit.

               XXI. SPECIAL INSTRUCTION ON REBUTTAL EVIDENCE
        Appellants contend that the trial court erred when it failed to give the jury a special
instruction about rebuttal evidence. We conclude that Appellants have waived this issue.
        Appellants claim that the trial court should have instructed the jury that it could only consider
the State’s rebuttal evidence for the impeachment of defense witnesses and it could not consider the
testimony as substantive evidence. However, Appellants have failed to provide a specific
explanation for why this instruction should have been given. In addition, Appellants have failed to


                                                  -35-
cite any authority for their proposition that this instruction should have been given and they have also
failed to provide a proper citation to the record. Thus, Appellants have waived this issue. Tenn. Ct.
Crim. App. R. 10(b).

                 XXII. SPECIAL INSTRUCTION ON “LAST SEEN ALIVE”
         Appellants contend that the trial court erred when it refused to instruct the jury that it could
not convict Appellants simply because Griffin was last seen alive in their presence. We disagree.
         The record indicates that the trial court refused to give this special instruction because “the
charge sets out very clearly . . . what has to be proven to establish guilt.” Indeed, the charge clearly
instructs the jury that it can only convict Appellants of an offense if the State proves the elements
of that offense beyond a reasonable doubt. In addition, the charge clearly instructs the jury on the
elements of first degree murder and its lesser included offenses and the charge also instructs the jury
about criminal responsibility for the conduct of another. In short, the charge accurately and correctly
instructs the jury on burden of proof, presumption of innocence, elements of the offenses, and the
nature of different kinds of evidence. “When the instructions given by the trial judge are a correct
statement of the law, and the instructions fully and fairly set forth the applicable law, it is not error
for a trial judge to refuse to give a special instruction requested by a party.” State v. Bohanan, 745
S.W.2d 892, 897 (Tenn. Crim. App. 1987). This issue has no merit.

                        XXIII. CHARGING THE JURY ON SUNDAY
        The record indicates that the proof was closed and closing arguments were made on Saturday,
August 31, 1996. After the trial court informed the jury that it would be instructed the next day,
court was adjourned at 8:55 p.m. Court was resumed at 1:15 p.m. on Sunday, September 1, 1996,
and the trial court immediately conducted the hearing about the juror who had been contacted by his
ex-wife. Shortly thereafter, the trial court charged the jury. The jury began deliberations at 2:20
p.m. and returned with the verdicts at 7:35 p.m.
        Following this Court’s decision in State v. Debiasi Sinard King & Dewayne King, No.
03C01-9801-CR-00015, 1999 WL 281080 (Tenn. Crim. App., at Knoxville, April 30, 1999), the
Appellants raised the issue of whether the trial court’s having instructed the jury on a Sunday
coupled with the jury’s deliberations and return of verdicts on Sunday required a new trial. In that
case this Court held that as late as 1965 the Tennessee Supreme Court reaffirmed the ancient
common law rule that judicial proceedings conducted on a Sunday are void. See Smith v. State, 215
Tenn. 314, 385 S.W.2d 748 (1965). As of the time of this Court’s decision in King, this rule had not
been altered by either the legislature or the Tennessee Supreme Court. Thus, this Court granted a
new trial to the defendants in King since a portion of their trial had occurred on a Sunday.
        When the Appellants raised this issue by way of a supplemental brief this Court ordered a
response by the State. The State responded, conceded that the instant case was indistinguishable
from King, but indicated that it was pursuing an appeal to the Tennessee Supreme Court in the King
case. The State asked this Court to stay its decision in the instant case until such time as our
Supreme Court resolved the issue of the propriety of Sunday court proceedings. Without objection
from the Appellants, this Court granted the State’s request to stay our opinion in this case until the
Tennessee Supreme Court resolved this issue.



                                                  -36-
         On January 19, 2001, the Tennessee Supreme Court handed down its decision in State v.
Debiasi Sinard King and Dewayne King, No. E1998-00283-SC-R11-CD, 2001 WL 46244 (Tenn.
2001). In that decision the Court rejected a per se rule invalidating Sunday Court proceedings. The
Court held whether to conduct court proceedings on a Sunday rests within the discretion of the trial
court. The Court went on to hold:
                In exercising this discretion, the trial court should be deferential to the
                preferences of the litigants, witnesses, jurors, and attorneys and must
                be mindful of the need for every participant in a trial proceedings to
                be prepared and rested. The trial court must also respect and
                accommodate the genuinely-held religious view of any litigant,
                witness, juror, or attorney. Finally, the trial court must weigh all of
                these concerns against whatever pressing need or compelling interest
                may necessitate a Sunday proceeding.
Id. at * 8

       In the instant case the trial had been lengthy and hard fought. The jury had been sequestered.
When the trial court proposed giving his instructions to the jury and having the jury deliberate on
Sunday the jurors indicated that was fine with them. No attorney or either of the Appellants voiced
any objection to the Sunday proceedings. The trial court made appropriate arrangements for jurors
who wished to attend religious services. Under these circumstances, we find no abuse of discretion
in conducting Sunday court proceedings in the instant case. This issue is without merit.

                   XXIV. USE OF APPELLANTS’ CONVICTIONS FOR
                        THE BRANAM MURDER IN SENTENCING
        Appellants contend that the trial court erred when it allowed the State to introduce their
convictions for the Branam murder into the sentencing phase of trial. We disagree.
        Appellants contend that because the trial court allowed the State to introduce facts about the
Branam murder into evidence in order to establish the identity of Griffin’s killers, the trial court
should not have allowed the State to introduce Appellants’ convictions for the Branam murder
during the sentencing phase of trial in order to establish the aggravating circumstance that Appellants
had previously been convicted of a felony involving violence to the person.27 As authority for this
proposition, Appellants cite State v. Bigbee, 885 S.W.2d 797 (Tenn. 1994), in which the Tennessee
Supreme Court held that when the State is seeking imposition of a death sentence on the basis that
the defendant has previously been convicted of a felony involving violence to the person, the State
may not introduce evidence about the specific facts of the prior crime during the sentencing phase
when the conviction shows on its face that it involved violence to the person. Id. at 811.
        We conclude that Appellants’ reliance on Bigbee is misplaced. Nothing in Bigbee prevents
the State from relying on a previous conviction for a felony involving violence to the person as an


         27
           Tennessee Code Annotated section 39-13-204 provided that one of the aggravating circumstances that can
be used as a basis for imposing a death sentence is the fact that the defendant has previously been convicted of one or
more felonies whose statutory elements involve the use of violence to the person. Tenn. Code Ann. § 39-13-204(i)(2)
(1991).

                                                        -37-
aggravating circumstance after the State has introduced the facts of the prior conviction during the
guilt phase of trial in order to establish an element of first degree murder. Rather, Bigbee simply
precludes the State from introducing the specific facts of the prior offense during the sentencing
phase itself. Indeed, the State fully complied with this requirement. The record indicates that the
State introduced no evidence about the specific facts of the Branam murder during the sentencing
phase and the prosecutors made no mention of the specific facts during their closing arguments.
Instead, the State merely used Appellants’ convictions to establish that Dellinger had one prior
conviction for felonies involving violence against the person and that Sutton had two prior
convictions for a felony involving violence to the person.28 Further, the trial court instructed the jury
that in imposing sentence, it could only consider “any of the statutory aggravating circumstances
which have been raised during the sentencing phase” and that it “shall not take account of any other
aggravating facts or circumstances as the basis for deciding whether the death penalty would be
appropriate in this case.” The jury is presumed to have followed those instructions. See State v.
Nesbit, 978 S.W.2d 872, 885 (Tenn. 1998). Under these circumstances, we conclude that the trial
court did not err when it allowed the State to introduce Appellants’ convictions for the Branam
murder during the sentencing phase. This issue has no merit.29

   XXV. THE STATE’S CLOSING ARGUMENT DURING THE SENTENCING PHASE
        Appellants contend that the State’s closing argument during the sentencing phase was
improper and prejudicial. We disagree.
        Initially, we note that the record indicates that Appellants did not make a single objection to
anything that either of the two prosecutors said during their closing arguments during the sentencing
phase. By failing to make a contemporaneous objection, Appellants waived this issue. Farmer, 927
S.W.2d at 591); Tenn. R. App. P. 36(a). However, notwithstanding waiver, we conclude that
Appellants are not entitled to relief even on the merits.
        Essentially, Appellants claim that the closing arguments of both prosecutors were improper
because they included references to the fact that each Appellant had been previously convicted of
first-degree murders. As support for this proposition, Appellants cite State v. Smith, 755 S.W.2d
757 (Tenn. 1988) and State v. Bigbee, 885 S.W.2d 797 (Tenn. 1994). However, Smith and Bigbee
are clearly distinguishable from this case. In Smith, the Tennessee Supreme Court held that because
the jury had been informed that the defendant had received a life sentence for one murder conviction,
it was improper for the prosecutor to argue that the jury would be imposing no punishment at all if
it imposed another life sentence for the second murder conviction. 755 S.W.2d at 767–68. In


         28
              The State introduced evidence th at Sutton had a prior co nviction in G eorgia for ag gravated a ssault.

         29
             In a related issue , Appellan ts contend tha t the trial court erre d when it failed to strike the State’s notice of
intent to seek the death penalty. Specifically, Appellants contend that because the trial court had ruled that the State
would be allowed to introduce facts about the B ranam mu rder into evid ence in ord er to establish the identity of Griffin’s
killers, the trial court sho uld have stric ken the State’s notice of intent to seek the death penalty because it relied on
Appellants’ convictions for the Branam murder as the aggravating circumstance upon which the death penalty was
sought. For the same reasons t hat we conclude that the trial court did not err when it allowed the State to introduce
Appellants’ convictions for the Bra nam murd er into evidence during the sentencing phase, we also conclude that the trial
court did n ot err when it failed to strike the State ’s notice of intent to seek the dea th penalty.

                                                             -38-
Bigbee, the supreme court held that the prosecutor’s argument was improper because he had strongly
implied that imposition of a death sentence for a second murder conviction would be an appropriate
way to punish the defendant for a previous murder conviction for which the defendant received a life
sentence. 885 S.W.2d at 812. The prosecutors in this case did neither of these things. First, the
prosecutors never mentioned the fact that Appellants had received a life sentence for the Branam
murder and they never argued that imposition of a life sentence in this case would be no punishment
at all. Second, the prosecutors never stated or implied that imposition of a life sentence for the
Griffin murder would be an appropriate punishment for the Branam murder. Instead, the prosecutors
only mentioned the Branam murder in the context of arguing that because the State had proven the
existence of the aggravating circumstance and had proven that the aggravating circumstance
outweighed the mitigating circumstances, the death sentence was the appropriate sentence in this
case. There is nothing improper about arguing that the existence of the prior conviction as an
aggravating circumstance supports imposition of a death sentence. See id. This issue has no merit.

                     XXVI. FAILURE TO INFORM THE JURY ABOUT
                                THE PREVIOUS LIFE SENTENCE
        Appellants contend that the trial court erred when it failed to instruct the jury that Appellants
had received life sentences for their convictions in the Branam murder case. We disagree.
        Appellants concede that under current law, the trial court properly refused to instruct the jury
about the sentences in the Branam murder case. Indeed, the Tennessee Supreme Court has
specifically held that it is improper to inform a jury in a capital case that the defendant received a life
sentence for a previous first degree murder conviction. State v. Smith, 857 S.W.2d 1, 24–25 (Tenn.
1993). This Court has neither the authority nor the desire to overrule the supreme court on this issue.
This issue has no merit.

                   XXVII. INSTRUCTION ABOUT PROOF OF IDENTITY
        Appellants contend that the trial court failed to properly instruct the jury about the State’s
burden of proof in establishing that Appellants were the same individuals who were convicted of
prior felonies involving violence to the person. We disagree.
        The record indicates that during the sentencing phase, the trial court instructed the jury that
                The burden of proof is upon the state to prove any statutory aggravating
                circumstance or circumstances beyond a reasonable doubt. A reasonable
                doubt is a doubt based upon reason and common sense after careful and
                impartial consideration of all the evidence in this case, and is an inability
                after such investigation to let the mind rest easily.
The trail court then instructed the jury that in order to show the existence of the aggravating
circumstance for Sutton, the State was relying on a Sevier County first degree murder conviction and
on a Georgia aggravated assault conviction. The trail court further instructed the jury that in order
to show the existence of the aggravating circumstance for Dellinger, the State was relying on a
Sevier County first degree murder conviction. Thereafter the trial court gave the following
instruction:
        Members of the Jury, the court has read to you the aggravating circumstances which the law
        requires you to consider if you find beyond a reasonable doubt that the evidence was


                                                   -39-
         established. You shall not take account of any other aggravating facts or circumstances as
         the basis for deciding whether the death penalty would be appropriate punishment in this
         case.
         As support for their proposition, Appellants rely on Lowe v. State, 805 S.W.2d 368 (Tenn.
1991). However, Lowe is clearly distinguishable from this case. In Lowe, the Tennessee Supreme
Court held that the trial court erred when it instructed the jury pursuant to a habitual criminal statute
that “a judgment of conviction of any person under the same name as that of the defendant is prima
facie evidence that the identity of such person is the same as the defendant” and defined the term
“prima facie” to mean that the evidence “is to be taken as an established fact unless and until it is
overturned or rebutted by proof.” Id. at 371. The supreme court held that the trial court erred
because its instruction impermissibly shifted the burden of proof to the defendant. Id. In this case,
nothing in the trial court’s instructions shifted the burden of proving identity to Appellants. The trial
court never informed the jury that it could consider the fact that Appellants were named in the
judgements of conviction from the prior cases as prima facie evidence that they had in fact been
convicted of the named offenses. To the contrary, the trial court clearly informed the jury that the
State had the burden of proving the existence of the aggravating circumstance beyond a reasonable
doubt. Thus, the jury was clearly aware that in order to prove that the aggravating circumstance
existed, the State had to establish beyond a reasonable doubt that Appellants were the people who
had been convicted of the prior felonies involving violence against the person. This issue has no
merit.

                       XXVIII. PROOF OF APPELLANTS’ IDENTITIES
         Appellants contend that the State failed to prove the existence of the aggravating factor in
this case beyond a reasonable doubt. Specifically, Appellants contend that the State failed to prove
that they were the same individuals who were named in the judgments of conviction for the prior
felonies. We disagree.
         During the sentencing hearing, Scott Greene, Assistant District Attorney General for Sevier
County, testified that he was present in the Criminal Court of Sevier County on February 24, 1993.
Greene then testified that he was acquainted with James Dellinger and he identified Dellinger on the
record. Greene subsequently identified a judgment of conviction for first degree murder in Sevier
County case 5035. Greene testified that he had prepared the judgment form and the form had been
signed by Judge Rex Henry Ogle. Green then testified that the defendant who was named in the
judgment form was James Dellinger, the individual whom he had just identified. Shortly thereafter,
the judgment of conviction was admitted into evidence.
         Green also testified that he was acquainted with Gary Sutton, and he identified Sutton on the
record. Green then identified a document dated February 24, 1993, as a judgment of conviction for
first degree murder in Sevier County case 5033. Greene testified that he had also prepared this
judgment form and this form had likewise been signed by Judge Rex Henry Ogle. Green then
testified that the defendant who was named in the judgment form was Gary Wayne Sutton. Shortly
thereafter, the judgment of conviction was admitted into evidence.
         Anthony Rollins of the Cobb County, Georgia Sheriff’s Department subsequently identified
some documents pertaining to indictment number 82-2313. Rollins testified that the name of the
person identified in the records was Gary Wayne Sutton and that the records included a photograph


                                                  -40-
and rolled fingerprint impressions of Gary Wayne Sutton. The documents were then admitted into
evidence. One of the documents is a judgment of conviction which indicates that Gary Dewayne
Sutton had entered a guilty plea to the charge of aggravated assault as charged in indictment number
82-2313.
        Crime Scene Technician Larry Muncy testified that he had previously prepared a card that
contained the fingerprints of Appellant Gary Wayne Sutton. Muncy then testified that he had
compared the fingerprint card that he had prepared with the fingerprint card obtained from the Cobb
County Sheriff’s Department and he had concluded that the fingerprints on both cards were from the
same individual.
        We conclude that the above evidence is sufficient to establish beyond a reasonable doubt that
both Appellants had previously been convicted of felonies involving violence to the person. First,
the evidence was clearly sufficient to establish beyond a reasonable doubt that Appellant Dellinger
had previously been convicted of first degree murder in Sevier County. Greene identified Dellinger,
identified the judgment of conviction that he had prepared which showed that James Dellinger had
been convicted of first degree murder in Sevier County, and testified that Appellant Dellinger was
the same James Dellinger named in the judgment of conviction. Second, the evidence was sufficient
to establish beyond a reasonable doubt that Appellant Sutton had previously been convicted of first
degree murder in Sevier County. Greene identified Sutton, identified the judgment of conviction that
he had prepared which showed that Gary Wayne Sutton had been convicted of first degree murder,
and testified that the defendant who was named in the judgment form was Gary Wayne Sutton.
Appellant Sutton is correct that Greene did not specifically testify that Appellant Sutton was the
same Gary Wayne Sutton named in the judgment of conviction. However, it is obvious from
Greene’s prior identification of Appellant Gary Sutton, his testimony that he was present in the
Criminal Court of Sevier County on February 24, 1993; his testimony that he had prepared the
judgment of conviction, and his testimony that the defendant named in the judgment of conviction
was Gary Wayne Sutton that Greene was indicating that Appellant Sutton is the same individual that
was named in the judgment of conviction for first degree murder in Sevier County.30 Third, the
evidence was clearly sufficient to establish beyond a reasonable doubt that Appellant Sutton had
previously been convicted of aggravated assault. The State introduced the judgment of conviction
and Muncy testified that he had examined the fingerprints and determined that the individual
convicted of aggravated assault was Appellant Sutton. This issue has no merit.

     XXIX. INSTRUCTION ON REASONABLE DOUBT DURING SENTENCING
       Appellants contend that the trial court erred when it instructed the jury about reasonable
doubt during the sentencing phase of trial. We disagree.


         30
            In support of his proposition that the State failed to establish beyond a reasonable doubt that he was the same
individual who was convicted of first degree murder in Sevier County, S utton cites State v. Robert Williams, No.
03C01-9302-CR-00050, 1996 WL 146696, at *4–5 (Tenn. Crim. Ap p., at Knoxville, April 2, 1996), in which this Court
held that the State failed to establish beyond a reasonable doubt that the defendant had previously been convicted of
violent felonies when the State simp ly admitted judgments of convictions for prior felonies committed by an individual
with the same n ame as the d efendant. T his case is distingu ishable from Williams because in addition to the judgment
of conviction, the State introduced the testimony of Greene in which he he identified Sutton and then stated that he had
prepared the judgment form.

                                                          -41-
        In its charge to the jury during the sentencing phase, the trial court instructed the jury that
                 The burden of proof is upon the state to prove any statutory aggravating circumstance
        or circumstances beyond a reasonable doubt. A reasonable doubt is a doubt based upon
        reason and common sense after careful and impartial consideration of all the evidence in this
        case, and is an inability after such investigation to let the mind rest easily.
                 It is not necessary that the aggravating circumstance or circumstances be proved
        beyond all possible doubt, as absolute certainty is not demanded by the law.
                 A reasonable doubt is just that—a doubt that is reasonable after an examination of
        all the facts of this case.

Appellants contend that this charge was improper in that the use of the phrase “let the mind rest
easily” violated their right to due process because the fact that the phrase is not qualified or otherwise
explained makes the instruction impermissibly vague and ambiguous.
         Tennessee courts have repeatedly upheld the use of the phrase “let the mind rest easily” in
instructions about reasonable doubt. In State v. Bush, 942 S.W.2d 489 (Tenn. 1997), the Tennessee
Supreme Court held that the trial court did not err when it instructed the jury that
                  Reasonable doubt is that doubt engendered by an investigation of all
                  the proof in the case and an inability, after such investigation, to let
                  the mind rest easily as to the certainty of guilt. Reasonable doubt
                  does not mean a captious, possible, or imaginary doubt. Absolute
                  certainty of guilt is not demanded by the law to convict of any
                  criminal charge, but moral certainty is required, and this certainty is
                  required as to every element of proof necessary to constitute the
                  offense.
Id. at 520–21. Similarly, in State v. Nichols, 877 S.W.2d 722 (Tenn. 1994), the supreme court held
that the trial court did not err when it instructed the jury that it must find proof “beyond a reasonable
doubt” and be convinced to a “moral certainty” of the existence of the aggravating circumstances and
of the fact that they outweighed the mitigating circumstances in conjunction with an instruction that
“[r]easonable doubt is that doubt engendered by an investigation of all the proof in the case and an
inability, after such investigation, to let the mind rest easily upon the certainty of your verdict.” Id.
at 734. The supreme court stated that “[t]he context in which the instruction was given clearly
conveyed the jury’s responsibility to decide the verdict based on the facts and the law.” Id. Further,
in Pettyjohn v. State, 885 S.W.2d 364 (Tenn. Crim. App. 1994), this Court held that the trial court
did not err when it instructed the jury that
                  Reasonable doubt is that doubt engendered by an investigation of all the
                  proof in the case and an inability, after such investigation, to let the mind rest
                  easily as to the certainty of guilt. Reasonable doubt does not mean a captious,
                  possible, or imaginary doubt. Absolute certainty of guilt is not demanded by
                  the law to convict of any criminal charge, but moral certainty is required, and
                  this certainty is required as to every proposition of proof to constitute the
                  offence [sic].
                  It is not necessary that each particular fact should be proved beyond a
                  reasonable doubt[ ] [i]f enough facts are proved to satisfy the jury beyond a


                                                  -42-
                   reasonable doubt, of all the facts necessary to constitute the crime charged.
                   Before a verdict of guilty is justified that [sic] circumstances taken together
                   must be of a conclusive nature and tendency, leading on the whole to
                   satisfactory conclusion and producing in effect a “moral certainty” that the
                   defendant committed the offence [sic].
Id. at 365–66.
         We conclude that, just like the instructions in Bush, Nichols, and Pettyjohn, the instruction
in this case was proper because it sufficiently informed the jury about the standard against which it
was to examine the evidence. Contrary to Appellants’ contention, the fact that the phrase “let the
mind rest easily” was not qualified in this case by something such as “to the certainty as to the
establishment of the aggravating factor” does not make the statement impermissibly vague. As
stated by the supreme court in Bush, “[i]n order to meet the requirements of due process, the jury
instructions must be examined as a whole, without considering particular phrases out of context.”
942 S.W.2d at 521. It is absolutely obvious that when the phrase “let the mind rest easily” is
considered in context, it is referring to the jury’s determination, based on a consideration of all the
evidence, that the State has satisfied its burden of establishing the existence of the aggravating
circumstance and establishing that the aggravating circumstance outweighs the mitigating
circumstances beyond a reasonable doubt. In short, the trial court’s instruction on reasonable doubt
properly reflects the evidentiary certainty required by principles of due process. This issue has no
merit.31

                      XXX. FAILURE TO INSTRUCT THE JURY THAT
                              APPELLANTS ARE HUMAN BEINGS
        Appellants contend that their death sentences must be vacated because the trial court failed
to instruct the jury that Appellants are human beings and that the jury can consider that fact as a
mitigating circumstance. We disagree.
        In support of their argument that their death sentences must be vacated because the trial court
failed to instruct the jury that they are human beings, Appellants cite Tennessee Code Annotated
section 39-13-204, which states in relevant part,
        The trial judge shall also include in the instructions for the jury to weigh and consider any
        mitigating circumstances raised by the evidence at either the guilt or sentencing hearing, or
        both, which shall include, but not be limited to, those circumstances set forth in subsection
        (j). No distinction shall be made between mitigating circumstances as set forth in subsection
        (j) and those otherwise raised by the evidence which are specifically requested by either the
        state or the defense to be instructed to the jury. These instructions and the manner of



         31
            In a related issue, Appellants contend that the trial court erred when it refused to consider their motion
challenging the validity of this jury ins truction even though the m otion was no t filed until after the trial court had
conducted a hearing on their motion for a new trial and denied the motion for a new trial. However, Rule 33(b) of the
Tennessee Rules of Criminal Procedure clearly states that a motion for a new trial must be in writing, must be made
within thirty days of sentencing, and amendments to the motion shall be allowed un til the day of the hearing on the
motion. Thus, the trial co urt did not er r when it refused to conside r the motion th at was filed after the hearing on the
motion for a new trial. In any ca se, Appe llants’ challenge to the jury charge has no mer it.

                                                           -43-
         arriving at a sentence shall be given in the oral charge and in writing to the jury for its
         deliberations.
Tenn. Code Ann. § 39-13-204(e)(1) (1991). Appellants argue that because the fact that they are
human beings was raised by the evidence, the trial court was required to grant their request to
instruct the jury that Appellants are human beings.
         The Tennessee Supreme Court has held that the above statute requires a trial court to
“instruct the jury on nonstatutory mitigating circumstances when raised by the evidence and
specifically requested by either the State or the defendant.” State v. Odom, 928 S.W.2d 18, 30
(Tenn. 1996). However, the supreme court has also stated that the right to have the jury instructed
on nonstatutory mitigating circumstances is statutory rather than constitutional in nature and thus,
the failure to instruct the jury on nonstatutory mitigating circumstances when raised by the evidence
is subject to harmless error analysis. State v. Hodges, 944 S.W.2d 346, 351–52 (Tenn. 1997). The
supreme court also stated that “in determining whether instructions are erroneous, this Court must
review the charge in its entirety and read it as a whole.” Id. at 352. “A charge should be considered
prejudicially erroneous if it fails to fairly submit the legal issues or if it misleads the jury as to the
applicable law.” Id. Compare, Brimmer v. State, 29 S.W.3d 497, 520-21 (Tenn. Crim. App. 1998).
         Assuming arguendo that the trial court erred when it failed to instruct the jury about the
obvious fact that Appellants are human beings, it is absolutely clear that any such error was
harmless. The record indicates that the trial court instructed the jury to consider, but not limit its
consideration, to twenty mitigating circumstances for Appellant Dellinger and fourteen mitigating
circumstances for Appellant Sutton. The trial court then instructed the jury that it could also
consider
                  Any other mitigating factor which is raised by the evidence produced by either the
         prosecution or defense at either the guilty or sentencing hearing; that is, you shall consider
         any aspect of the defendant’s character or record, or any aspect of the circumstances of the
         offense favorable to the defendant which is supported by the evidence.
                           ....
                  No distinction shall be made between mitigating circumstances listed above and other
         mitigating circumstances raised by the evidence although not specifically listed.
         It is clear that the trial court’s failure to instruct the jury that Appellants are human beings
did not result in an instruction that “fails to fairly submit the legal issues” or “misleads the jury as
to the applicable law.” Clearly, the trial court’s instruction did not prevent the jury from considering
the obvious and readily apparent fact that Appellants are human beings. Indeed, the instruction
expressly informed the jury that it could consider anything to be a mitigating circumstance if it was
raised by the evidence. Further, the very nature of every one of the specific mitigating circumstances
that were listed necessarily encompassed the fact that Appellants are human beings. In short, we
conclude that even if the trial court erred when it failed to instruct the jury that Appellants are human
beings, it is absolutely clear that any such error was harmless. See Tenn. R. Crim. P. 52(a). This
issue has no merit.

                 XXXI. FAILURE TO ANSWER THE JURY’S QUESTION




                                                  -44-
        Appellants contend that the trial court erred when it failed to answer the jury’s question about
whether life sentences in this case would run concurrently with or consecutively to life sentences
imposed for the Sevier County first degree murder convictions.32 We disagree.
        At some point during deliberations in the sentencing phase, the jury submitted the following
written question to the trial court:
        If James Dellinger and Gary Sutton were given life in prison from Sevier County and they
        are given life in prison in Blount County—will the prison terms be consecutive and/or
        concurrent.
The trial court gave the following written response: “You should concern yourself with the sentences
in these cases only.”
        Appellants have cited no authority for their proposition, and we conclude that the trial court
acted properly. In State v. Smith, 857 S.W.2d 1 (Tenn. 1993), the Tennessee Supreme Court held
that the trial court acted properly when it refused to answer the following questions from the jury:
        (1) Define life sentence;
        (2) Define consecutive and concurrent life terms and which would apply if a second life
        sentence was given;
        (3) When would parole apply.
Id. at 10–11. The supreme court stated that the trial court’s refusal to answer the questions was
proper because providing a jury with this sort of information could result in death sentences that are
based on sheer speculation and on factors other than those enumerated in the governing statutes. Id.
at 11. Similarly, if the trial court had answered the jury’s question in this case, this could have
encouraged the jury to base its decision on whether to impose death sentences on speculation about
what may happen in the future rather than on the factors delineated by the death penalty statutes.
Thus, we conclude that under Smith, the trial court properly refused to answer the jury’s question.
This issue has no merit.

              XXXII. WHETHER THE AGGRAVATING FACTOR APPLIED
                    BY THE JURY IS A DUPLICATION OF THE CRIME
         Appellants contend that their death sentences are unconstitutional because the aggravating
circumstance applied by the jury is a duplication of the offence for which they were convicted. We
disagree.
         Although Appellants’ argument is not entirely clear, they apparently contend that because
the State used evidence of the Branam murder to show that they were the individuals who killed
Griffin, the State was precluded from relying on their convictions for the Branam murder as the
aggravating circumstance upon which the death penalty was sought. As support for this proposition,
Appellants cite State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992). This reliance is completely
misguided. In Middlebrooks, the Tennessee Supreme Court held that when a defendant is convicted
of first degree murder solely on the basis of felony murder, the defendant cannot be sentenced to


         32
            Appellan ts claim that this alleged error was compounded by the trial court’s failure to inform the jury that
life sentences would be imposed in this case if the jury failed to reach a unanimous verdict. However, the Tennessee
Supreme Court has e xpressly reje cted the argu ment that a jury should be informed of the result of a non-unanimous
verdict. See State v. Cribbs, 967 S.W.2d 773 , 796 (Tenn. 1998).

                                                         -45-
death because that same murder was committed during the commission, the attempt to commit, or
the fleeing after the commission or attempt to commit certain felonies. Id. at 347. First, Appellants
were convicted of premeditated and deliberate first degree murder, not felony murder. In addition,
Appellants were convicted in this case of the Griffin murder, not the Branam murder. Thus, it is
obvious that the aggravating circumstance in this case (the convictions for the Branam murder) was
not a duplication of the crime for which Appellants were convicted in this case (the Griffin murder).
This issue has no merit.

                                XXXIII. DOUBLE JEOPARDY
       Appellants contend that the imposition of the death sentence in this case violates principles
of double jeopardy. We conclude that Appellants have waived this issue.
       Appellants have failed to support their contention with any argument other than a one
sentence conclusory statement that their death sentences violate principles of double jeopardy. In
addition, Appellants have failed to cite to the record and they have failed to cite any authority in
support of their claim. Thus, this issue is waived. Tenn. R. Ct. Crim. App. 10(b).

     XXXIV. FAILURE TO CONDUCT AN ADDITIONAL SENTENCING HEARING
         Appellants contend that the trial court erred when it failed to hold a separate sentencing
hearing to determine whether their death sentences should be served concurrently with or
consecutively to their life sentences for the Branam murder. We disagree.
         Appellants have not cited any authority that would support their proposition that the trial
court was required to conduct a separate sentencing hearing. Indeed, the statutes that govern capital
sentencing do not provide for such a hearing. Quite simply, nothing in the law of this State required
the trial court to conduct a separate sentencing hearing and thus, the court did not err in failing to do
so. This issue has no merit.33

  XXXV. SENTENCE REVIEW PURSUANT TO TENNESSEE CODE ANNOTATED
SECTION 39-13-206(c)(1)(1997).
       In all cases involving the sentence of death Tennessee Code Annotated Section 39-13-
206(c)(1)(1997) requires that the appellate courts determine whether:
       (A)     The sentence of death was imposed in an arbitrary fashion:

         (B)       The evidence supports the jury’s finding of statutory aggravating circumstance or
                   circumstances;

         (C)       The evidence supports the jury’s finding that the aggravating circumstance or
                   circumstances outweigh any mitigating circumstances; and




         33
           W e note that bec ause the jud gments in this cas e do not ex pressly indicate whether the death sentences are to
be served concurrently with or consecutively to the previously imposed sentences, the death sentences are to run
concurrently with the other sentences. Tenn. R. Crim. P. 32(c)(2).

                                                           -46-
        (D)     The sentence of death is excessive or disproportionate to the penalty imposed in
                similar cases, considering both the nature of the crime and the defendant.

          Initially we note that there is nothing in this record to indicate that the sentence of death was
imposed arbitrarily. All appropriate statutory sentencing procedures were utilized and the jury was
properly instructed concerning how to reach its decision as to punishment. Secondly, as discussed
previously herein, the evidence is amply sufficient to support the jury’s finding that the appellants
had previous convictions involving violence thereby establishing the aggravating circumstance found
at Tennessee Code Annotated Section 39-13-204(i)(2). Thirdly, the mitigating evidence consisted
largely of testimony concerning the appellants’ troubled lives, injuries, and personal setbacks.
Contrasted with this was proof that the appellants had previously been convicted of a violent felony
involving a death. The jury was justified in determining the aggravating circumstance outweighed
the mitigating proof offered in this case.
          Finally, we discuss whether the sentence of death is proportional in this case when compared
to similar cases. This analysis is designed to identify aberrant, arbitrary or capricious sentences by
determining whether the death penalty in a given case is “disproportionate to the punishment
imposed on others convicted of the same crime.” State v. Bland, 958 S.W.2d at 662 (Tenn. 1997).
If a case is “plainly lacking in circumstances consistent with those in cases where the death penalty
has been imposed,” then the sentence is disproportionate. Id. at 668. However, a sentence of death
is not disproportionate merely because the circumstances of the offense are similar to those of
another offense for which the defendant has received a life sentence. Id. at 665. “Since no crimes
are precisely alike, the precedent seeking method of review is not a rigid, mechanical formula.”
State v. Burns, 979 S.W.2d 276, 283 (Tenn. 1998). Instead, we consider numerous factors regarding
the offense itself: (1) the means of death; (2) the manner of death; (3) the motivation for the killing;
(4) the place of death; (5) the victim’s age, physical and psychological condition; (6) the absence
or presence of premeditation; (7) the absence or presence of provocation; (8) the absence or
presence of justification; and (9) the injury to and effects on nondecedent victims. Bland, 958
S.W.2d at 667. We also consider numerous factors about the defendant: (1) age, race and gender;
(2) prior criminal record; (3) mental, emotional, or physical condition; (4) role in the murder; (5)
remorse; (6) cooperation with authorities; (7) the defendant’s knowledge of a victim’s helplessness;
and (8) the defendant’s potential for rehabilitation. Id.
          The evidence in this case showed that after an afternoon spent drinking with Griffin,
Appellants became angry with Griffin, fought with him, and abandoned him on the side of a
highway. After a subsequent unsuccessful attempt to obtain Griffin’s release from jail, Appellants
set fire to Griffin’s residence and then obtained a shotgun. Appellants then obtained Griffin’s release
from jail, took him to a remote area, and shot him in the back of the head with a shotgun. Appellants
have continued to deny all responsibility for Griffin’s murder and they have failed to show any
remorse for the senseless and unprovoked killing of their supposed friend. The jury sentenced the
Appellants to death after it found one aggravating circumstance: that the Appellants had previously
been convicted of felonies involving the use of violence to the person.
           In State v. Cribbs, 967 S.W.2d 773 (Tenn. 1998), the defendant killed a woman after the
woman and her husband came home while the defendant and an accomplice were burglarizing their
home. The defendant shot the husband in the shoulder, causing him to lose consciousness. The


                                                   -47-
defendant then killed the wife by placing a shotgun against her head and firing. The jury imposed
the death sentence after it found two aggravating circumstances: that the defendant was previously
convicted of one or more felonies involving violence to the person and that the murder was
committed while the defendant was engaged in committing or was attempting to commit a burglary.
The supreme court held that the second aggravating circumstance was invalid, but upheld the death
sentence based on the aggravating circumstance that the defendant had previously been convicted
of felonies involving violence to the person.
          In State v. Hurley, 876 S.W.2d 57 (Tenn. 1993), the defendant killed the victim by shooting
him once in the head. The jury found the defendant guilty of premeditated murder and imposed the
sentence of death upon finding one aggravating circumstance: that the murder was committed while
the defendant was engaged in committing a robbery. The supreme court upheld the death sentence.
          In State v. Howell, 868 S.W.2d 238 (Tenn. 1993), the twenty-seven-year-old defendant
murdered the clerk of a convenience store by shooting him once in the head during the course of a
robbery. The defendant did not cooperate with the authorities and he did not express remorse. The
defendant presented evidence that he had been diagnosed as a slow learner, had been placed in
special education classes, and had dropped out of school in the eighth grade. The jury found the
defendant guilty of first degree felony murder and sentenced him to death upon finding two
aggravating circumstances: that the defendant had previously been convicted of felonies involving
the use of violence to the person, and the murder was committed while the defendant was engaged
in committing a felony. The supreme court found that the jury’s reliance upon the felony murder
aggravating circumstance was invalid, but upheld the death sentence based on the aggravating
circumstance that the defendant had previously been convicted of felonies involving the use of
violence to the person.
         In State v. Van Tran, 864 S.W.2d 465 (Tenn. 1993), the defendant killed a
seventy-four-year-old victim in the course of a robbery. The victim had been shot once and was
lying on the floor when the defendant shot her in the head. The defendant was age nineteen and had
no prior record. Mitigating evidence included the defendant’s good work record, cooperation with
law enforcement, remorse, and educational problems. The jury imposed the death sentence after
finding one aggravating circumstance: that the murder was especially heinous, atrocious, or cruel in
that it involved torture or serious physical abuse beyond that necessary to produce death. The
supreme court upheld the death sentence.
          In State v. Smith, 695 S.W.2d 954 (Tenn. 1985), the defendant robbed and killed a man by
shooting him twice. The defendant confessed to the police. The jury sentenced the defendant to
death after it found that one aggravating circumstance: that the defendant committed the murder
during the perpetration of a robbery. The supreme court upheld the death sentence.
         In State v. Caldwell, 671 S.W.2d 459 (Tenn. 1984), the defendant and the victim were
engaged in a drinking bout that erupted into violence when the victim threw whiskey into the
defendant’s face. The defendant then shot the victim twice in the back of the head with a shotgun.
The jury sentenced the defendant to death after it found that one aggravating circumstance: that the
defendant had been previously convicted of felonies involving the use of violence to the person. The
supreme court upheld the death sentence.
         These cases, although not identical, contain numerous similarities to both the offense and the
defendants before us. As is the case here, only one aggravating circumstance was validly considered


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in all six of the above cases and in three of the cases, the aggravating circumstance was the same one
that the jury found was present in this case. In this case, Griffin was shot once in the head. In all
six of the above cases, the victim was only shot once or twice and in five of the cases, the victim was
shot in the head. Just as Griffin was shot while he was unarmed, the victims in all six of the above
cases were apparently also unarmed. Just as there was evidence that Appellants have a low IQ level,
there was evidence that the defendants in Howell and Van Tran had impaired mental abilities or
educational problems. Like the defendant in Howell and unlike the defendant in Van Tran,
Appellants have never accepted responsibility or expressed remorse for their crime. Finally, the
supreme court upheld the death penalty in all six of the above cases after finding that it was neither
arbitrary nor disproportionate. After reviewing the cases discussed herein, and other cases not herein
detailed, we conclude that the penalty imposed by the jury in this case is not excessive or
disproportionate to the penalty imposed for similar crimes. This issue has no merit.

                                  XXXVI. CONCLUSION
       Based on the foregoing the judgment and sentence of the trial court is AFFIRMED.

                                                        ___________________________________
                                                        JERRY L. SMITH, JUDGE




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