        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  May 12, 2015 Session

           STATE OF TENNESSEE v. DENNIS ALLEN RAYFIELD

                  Appeal from the Circuit Court for Wayne County
                        No. 15198 Jim T. Hamilton, Judge


              No. M2013-02167-CCA-R3-CD – Filed September 28, 2015


The Defendant, Dennis Allen Rayfield, was convicted of first degree murder by a Wayne
County Circuit Court jury. See T.C.A. § 39-13-202 (2014). He was sentenced to life in
prison. On appeal, he contends that (1) the evidence is insufficient to support the
conviction, (2) the trial court erred in allowing the State to call a witness for the sole
purpose of impeaching him, (3) the trial court erred in failing to dismiss the alternate
jurors at the close of the proof, and (4) the trial court erred in permitting the sequestered
jurors to have their cell phones in their possession during the trial. We affirm the
judgment of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Michael L. Freeman, Nashville, Tennessee, for the appellant, Dennis Allen Rayfield.

Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior
Counsel; T. Michael Bottoms, District Attorney General; Joel Douglas Dicus and Brent
A. Cooper, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                        OPINION
       The Defendant‘s conviction relates to the homicide of his twenty-six-year-old
wife, Julie Rayfield. At the trial, the State presented evidence that that the Defendant had
moved out of the marital home about six months before the deceased victim was found in
her home on Sunday, March 18, 2012. The victim died from a gunshot wound to the
head. The Defendant and the victim had a four-year-old son who was alone elsewhere in
the home at the time of the shooting. The victim had retained an attorney to assist her
with divorce proceedings, and in the days before her death, her attorney prepared
pleadings to initiate a divorce based upon irreconcilable differences.
       Wayne County Sheriff‘s Lieutenant Donnie Carroll testified that while he was on
patrol on March 18, 2012, he saw a truck in the parking lot of Mount Hope United
Methodist Church around 9:18 p.m. He ―ran‖ the license plate number and determined
the truck was registered to the victim. Other evidence established that the Defendant
drove the truck. Lieutenant Carroll did not see anyone around the truck. He said that by
traveling through a field, the victim‘s house was about one-fourth of one mile from the
church.

        Lieutenant Carroll testified that he had worked an incident involving a vehicle and
a deer at 8:14 p.m. on March 18. He said he only called for identifying information for
one license plate number that night. He initially stated that he did not go home for dinner
that night, but after he was asked about GPS logs from his patrol car showing he had been
parked near his house for about five minutes, he conceded the possibility he had gone
home. He said his home was seven to eight minutes from Mount Hope United Methodist
Church. He acknowledged the GPS information showing he had driven more than sixty
miles per hour to the church after leaving his house and agreed he slowed to around
thirty-one miles per hour when he was near the church. Lieutenant Carroll said that the
victim had been his good friend and that he knew her family.

       James Turnbow, the Wayne County E-911 director, identified a documentary
record of Lieutenant Carroll‘s radio call regarding Lieutenant Carroll‘s sighting of a truck
at Mount Hope United Methodist Church on March 18, 2012. Mr. Turnbow testified that
according to the document, Lieutenant Carroll requested a registration check for a license
tag, which other evidence showed had the same license plate number as the truck the
Defendant drove. Mr. Turnbow identified an audio recording of Lieutenant Carroll‘s
radio call requesting the registration information, and the recording was played for the
jury. Mr. Turnbow said the records about which he had testified could not be edited
without generating a ―paper trail.‖ He said the records had not been edited.

       The victim‘s grandmother testified that she lived across the driveway from the
victim. She said the victim and the victim‘s four-year-old son had been at the
grandmother‘s house until about 7:45 p.m. on March 18, 2012. The victim‘s
grandmother testified that the victim‘s son had a dog that barked a lot around strangers
but should have been familiar with the Defendant. She said she went to bed around 10:00
p.m. She slept in her living room, and she could see the victim‘s house from her living
room window. She did not see anything unusual at the victim‘s house or hear barking,
although she awoke during the night and noticed the victim‘s porch light was not
illuminated, which she said was unusual.


                                            -2-
      The victim‘s grandmother said that her usual practice was to go to the victim‘s
house around 7:15 a.m. to help with the victim‘s son while the victim prepared for work.
On March 19, the victim‘s grandmother went to the victim‘s house, but received no
answer when she knocked. She went inside the house and found the deceased victim in a
bathroom and the victim‘s son asleep in the master bedroom.

       The victim‘s grandmother testified that a barrel that had previously been behind
the victim‘s house was in front of the house below double windows. A window screen,
which she had never seen previously, was on the ground. She said the front storm door
was ajar and the door was unlocked, although the victim normally locked the door‘s
deadbolt. She said that inside the house, a loveseat had been moved away from the
window below which the barrel had been placed outside.

       When shown her telephone records, reflecting a call to the Defendant‘s cell phone
on the morning of March 19, 2012, the victim‘s grandmother testified that if she called
the Defendant that day, it had been unintentional. She said that after she found the
deceased victim, she had tried to call family members using a list of telephone numbers
the victim had made for her, that the Defendant‘s name and number were on it, and that
she ―could have misthought.‖

       Police officers and emergency medical personnel responded to the scene after the
victim‘s grandmother called 9-1-1. At the scene, Lieutenant Carroll reported to
Investigator Kenneth Martin and Sheriff Ric Wilson about having seen the Defendant‘s
truck in the church parking lot the previous night.

       Investigator Kenneth Martin testified that no spent cartridges were recovered at
the scene. He said the police observed no signs of a struggle in the house. He said he
later went to the Lawrence County jail, where he observed the Defendant shaking and
shivering uncontrollably. The Defendant agreed to go to Wayne County for questioning.

       Investigator Martin testified that he interviewed the Defendant in Wayne County.
He said the Defendant continued to shake and shiver. He said that the Defendant recalled
―rock climbing‖ with a friend and going to the friend‘s house on Sunday, March 18, but
that the Defendant could not recall what happened after he left the friend‘s house.
Investigator Martin said the Defendant never asked about the victim, his son, or what
happened. He said the Defendant did not mention receiving a telephone call from a
member of the victim‘s family stating that the victim was dead. He said that when he
told the Defendant that the truck the Defendant drove had been seen at the church, the
Defendant declined to answer further questions.


                                          -3-
       Investigator Martin testified that the Defendant was arrested, at which time the
Defendant‘s clothes were collected, and search warrants were executed for the truck and
the Defendant‘s mother‘s house, where the Defendant lived. The police recovered a
Cricket .22 caliber bolt-action weapon and a .22 caliber Ruger from the Defendant‘s
bedroom at his mother‘s house. Several rounds of .22 caliber ammunition were also
recovered from the house. The police recovered ammunition of various calibers,
including .22 caliber ammunition, from the truck.

       Eric Rayfield testified that he was a Lawrence County correctional officer. He
said his sister, Pamela Rayfield, called him on the morning of March 19, 2012, and asked
him to meet the Defendant and her at the Lawrence County Sheriff‘s Department with
―no questions asked.‖ He said that when he arrived, he spoke with the Defendant.
Officer Rayfield stated, ―He said that he felt like he was caught in a dream and that his
wife was dead.‖ He acknowledged that in a written statement he gave a few days after
the incident, he stated that when he asked the Defendant what was going on, the
Defendant responded ―that he thought he was dreaming that his wife, Julie, was dead.
But the more he thought, and sobered up, the more he was not sure if it was a dream and
wanted to turn himself in and find out at that point.‖ At the time of his trial testimony,
Officer Rayfield did not recall the Defendant‘s saying he wanted to ―turn himself in.‖
Officer Rayfield said the term referred to someone who came voluntarily to the sheriff‘s
department but did not refer to a person who came to report a crime.

        Lawrence County Sheriff‘s Department Chief Deputy Willie Anthony Crouch
testified that on March 19, 2012, he was at work when Officer Rayfield stated that
Officer Rayfield‘s sister and the Defendant were in the lobby. Deputy Crouch stated that
Officer Rayfield said the Defendant thought he had hurt or killed someone and was there
to ―turn himself in.‖ Deputy Crouch said that in his experience, the terminology ―turn
himself in‖ meant the person was there for questioning but did not indicate the person
wanted to report a crime in which the person was uninvolved. Deputy Crouch conceded
the possibility that the term might refer to a person who was trying to learn the facts of a
situation.

        Lawrence County Sheriff‘s Department Captain Adam Brewer testified that he
saw Chief Deputy Crouch in the sheriff‘s department parking lot on March 19, 2012. He
stated that Chief Deputy Crouch related, ―[T]here is a man in the lobby that had a dream
that he had killed his wife. And that, the more he sobered up, the more the dream seemed
a reality.‖ He acknowledged that he thought Chief Deputy Crouch had spoken with the
man‘s uncle, rather than the man.



                                            -4-
       Captain Brewer testified that he waited in a Lawrence County interview room with
the Defendant until Wayne County authorities arrived to transport the Defendant to
Wayne County. Captain Brewer said the Defendant did not appear to be intoxicated or
smell of alcohol.

       The Defendant‘s mother, Pamela Rayfield, testified that she did not recall when
the Defendant came home on the evening of Sunday, March 18. She said that she was
asleep on the couch and was not wearing her glasses but that she woke when he came
home. She said it was possible it was midnight or later. She said that on the morning of
March 19, she heard the Defendant‘s cell phone ring a couple of times. She said the
Defendant told her that morning that something had happened to the victim and that he
wanted to go to the sheriff‘s department.

       Ms. Rayfield testified that she had been confused and intimidated when she gave a
statement to the police in which she stated that the Defendant told her at her house on the
morning of March 19 that ―he thought he was dreaming and can‘t wake up, and he
thought Julie was dead[.]‖ She later said she did not know when he said he told her he
was dreaming and thought the victim was dead. She acknowledged that in her
preliminary hearing testimony, she said the Defendant stated, ―I think I‘m dreaming and
can‘t wake up, Julie is dead,‖ and that he wanted to go to the sheriff‘s department. Ms.
Rayfield later testified that she felt intimidated by the prosecutor and had ―jumbled‖
things because she could not remember the Defendant‘s exact words. She recalled,
though, the Defendant‘s stating at some point that he was dreaming.

        Ms. Rayfield testified that when she was at the sheriff‘s department with the
Defendant on March 19, she asked a couple of times what had happened to the victim or
if the victim was dead. She said no one would give them any information.

       Ms. Rayfield testified that the Defendant was a good father but acknowledged he
had a wage garnishment for child support. She said the Defendant liked to hunt.

        Carl Alexander, a dog handler and expert in tracking and trailing, testified that his
dogs performed searches at the victim‘s house on March 24, 2012. Relative to the search
he and his certified purebreed bloodhound Zuke conducted, he said Zuke was given a
―scent item,‖ which other evidence established was the Defendant‘s clothing. He said
that after being exposed to the scent item, Zuke went immediately to the front porch and
to the area near the white barrel and the porch steps. He said Zuke then ran along a one-
fourth of one mile trail, which ended in the Mount Hope United Methodist Church
parking lot.


                                            -5-
        Mika Davis testified that he and the Defendant went ―rock crawling‖ in Mr.
Davis‘s four-wheel-drive truck on Sunday, March 18, 2012. He said that they left his
house at 6:00 a.m., that they returned that evening, and that the Defendant left Mr.
Davis‘s house around 8:10 or 8:15 p.m. He identified a photograph of the truck the
Defendant drove, which other evidence established was the truck that Lieutenant Carroll
saw parked at Mount Hope United Methodist Church later that evening. Mr. Davis said
that when the Defendant left, the Defendant drove toward Highway 13 South and that the
victim lived north of his house. Mr. Davis testified that although he and the Defendant
drank beer during the day, he did not know how many beers the Defendant drank. He
characterized the Defendant as a heavy drinker but did not think the Defendant was
―drunk‖ that day. He sent text messages to the Defendant that night to see if the
Defendant reached home safely but did not receive a response until around 10:00 a.m. the
following day. He said that because the Defendant had been drinking on March 18, he
asked the Defendant to spend the night at Mr. Davis‘s house. Mr. Davis said the
Defendant preferred to go home because the Defendant had to prepare for work-related
travel the next day.

      Mr. Davis testified that he saw the Defendant‘s employer‘s service truck at a
convenience market around 5:00 a.m. on March 19, 2012. Mr. Davis did not see the
Defendant with the crew.

       Tennessee Bureau of Investigation (TBI) Special Agent Forensic Scientist Steve
Scott, an expert in firearms identification, testified that both of the firearms found at the
Defendant‘s mother‘s house were in working order. He said that the bullet that was
recovered from the victim‘s body during the autopsy was .22 caliber but that it was
deformed to the extent he could not make a more specific identification or determine if it
had been fired from either of the weapons recovered from the Defendant‘s mother‘s
house. He said the bullet was consistent with .22 caliber ammunition recovered from the
console of the truck the Defendant drove and the Defendant‘s mother‘s house. He
acknowledged that the type of .22 caliber bullets recovered from the truck and the house
was common. He said this type of ammunition was more commonly used for target
shooting than hunting.

       The victim‘s mother testified that she had paid the victim‘s attorney‘s fees for the
divorce the Thursday or Friday before the victim‘s death. The victim‘s mother said that
she spoke to the victim during the weekend and that the victim did not say she had
changed her mind about the divorce. She acknowledged she had not wanted the victim to
date the Defendant at first but said she had paid for the wedding. She said the
Defendant‘s drinking became worse during the marriage.


                                             -6-
       The victim‘s attorney testified that the victim had hired him to represent her in
divorce proceedings and that the victim‘s mother hired him to obtain guardianship of the
Defendant and the victim‘s son after the victim‘s death. The attorney said that against his
advice, the victim had insisted upon calculation of the Defendant‘s child support
obligation after the divorce at a much lower rate than provided by the child support
guidelines. The attorney said the Defendant and the victim‘s tax return reflected the
Defendant‘s monthly income as $2946.66 and the victim‘s monthly income as $1560.
The attorney said the victim also insisted upon assuming most of the marital debt and had
allowed the Defendant to keep the personal property he wanted. The attorney said the
victim was in an abusive relationship. He said that he recommended to the victim that
she obtain an order of protection against the Defendant but that she thought an order of
protection would exacerbate the situation. The attorney said the victim was supposed to
meet with the Defendant about signing the divorce papers on March 17 or 18, 2012. The
attorney said he was concerned, based upon the information the victim had given him,
about the victim‘s presenting the paperwork to the Defendant. He said, however, that the
victim felt comfortable doing so and that she thought the Defendant would sign the
papers and be happy to have her out of his life. The victim‘s attorney testified that the
victim had been scheduled to return to his office with the signed documents on Monday,
March 19, and that he had anticipated filing them the next day.

        Alexandria Pope, the victim‘s friend and ―cousin by marriage,‖ testified that she
had been aware of the Defendant and the victim‘s marital problems before they separated.
She recalled that about a year before the victim‘s death, the victim and the victim‘s son
came to Ms. Pope‘s house unannounced. She said the victim cried and was
hyperventilating. After the victim calmed herself, she showed Ms. Pope a handprint on
the left side of her face in her neck area.

        Ms. Pope testified that on May 1, 2011, she and the victim were at a party. She
said the victim continued receiving cell phone calls and having short conversations. Ms.
Pope said that she could hear the Defendant‘s voice ―hollering‖ and that the victim was
irritated that he continued calling. She said the victim eventually left but returned about
forty-five minutes later. After the victim returned, she showed Ms. Pope a round red
mark about the size of a baseball on her right chest.

       Ms. Pope testified that at 10:00 p.m. on March 11, 2012, about one week before
the victim‘s death, she saw the truck the Defendant drove on Venable Road. She said the
area was rural, the road was a dead end, and the victim‘s parents lived there. She said
that the Defendant turned and drove toward the victim‘s house and that he had ―no
reason‖ to be there. Ms. Pope said that she called the victim and told her what she had


                                            -7-
seen and that the victim was scared and asked Ms. Pope to stay on the phone with her.
Ms. Pope said she stayed on the phone with the victim for about one hour.

       Ms. Pope acknowledged that she did not approve of the Defendant‘s lifestyle. She
said she and her husband had not socialized with the Defendant because he drank heavily.

       Amanda Dixon testified that she saw the victim on the evening of March 18, 2012,
when their children had a playdate. Her impression, after her conversation with the
victim that night, was that the Defendant was unhappy about the amount of child support
the victim sought. She had understood that the victim was seeking less child support than
allowed by the child support guidelines. Ms. Dixon said she had been around the
Defendant and the victim during their marriage and that the couple did not fight, although
the victim had told her about the arguments the couple had when Ms. Dixon was not
present. Ms. Dixon said the topics of the Defendant and the victim‘s arguments had been
typical marital disagreements.

       Amanda Isbell testified that she had been dating the Defendant for about one
month on March 18, 2012. She said the Defendant was upset because the victim wanted
the same amount of child support the Defendant‘s former wife received for their two
children.

       Ms. Isbell testified that she received text messages from the Defendant on the
weekend of the victim‘s death that were uncharacteristic of their typical conversations.
She said that on March 16, 2012, the Defendant stated in a text message that he was
looking for answers in life and mentioned his ―[s]oon to be ex-wife.‖ She said that on
March 18, the Defendant was supposed to come to her house at 8:30 p.m. She said that
she received a text message around 8:00 p.m. stating he was on his way but that he never
arrived. She sent him a text message at 8:34 p.m. and inquired if he was coming, but she
did not receive a response. She sent a text message at 7:41 a.m. on March 19 asking if
the Defendant was okay, and he responded quickly that he was fine. She said that she
asked what happened and that he responded he was busy and would talk to her later. She
said she had not heard from him since she received this message.

       Ms. Isbell testified that the Defendant‘s work involved overnight travel from
Sunday night or early Monday morning until Thursday or Friday. She said her house was
about fifteen minutes from the Defendant‘s mother‘s house and required driving through
Lawrenceburg. She agreed that a person who was ―a little drunk‖ would be unwise to
drive through Lawrenceburg.



                                           -8-
       Dr. Amy Hawes, an expert in forensic pathology, performed the autopsy of the
victim. She testified that the victim‘s cause of death was a gunshot wound to the left eye
and that the manner of death was homicide. She was unable to determine how long the
victim had been dead and was unable to determine from the examination the type of
weapon used.

       Malia Catherine Brazier, the Defendant‘s previous wife, testified for the defense
that she and the Defendant had two children together. She characterized the Defendant as
a good, involved father who saw his children at least once every weekend, but she
acknowledged he had been delinquent in his child support payments more frequently than
he had been current.

       Ms. Brazier testified that she had felt intimidated by Investigator Carroll‘s
repeated attempts to interview her relative to this case. She perceived he had threatened
to involve the Department of Human Services (DHS) if she did not cooperate. She
agreed Investigator Carroll had mentioned involving DHS to help him interview Ms.
Brazier‘s children but said she thought he was threatening to have DHS take away her
children. She said that Investigator Carroll had been persistent about wanting to question
her and that she thought he wanted to find something from the Defendant‘s past to use
against him. She agreed Investigator Carroll later apologized.

      Ms. Braizer testified that the Defendant had not been abusive during their
marriage and that his drinking had not been problematic. She said she was never
concerned about his being at home with her children and that she did not feel threatened
by him.

       The Defendant testified that he and the victim began dating in 2005. He said he
had not wanted a divorce. He thought the reasons for the divorce were his out-of-town
work, his not being around, and the victim‘s family‘s influence. He said the victim and
he argued at times. He said that the victim had hinted about a divorce and that she had
mentioned hiring a lawyer but that they had not discussed it. He said that they never
discussed divorce papers and that he had been unaware they had been drafted. He
acknowledged drinking beer daily by the time of the separation but said his drinking was
not part of the marital problem.

      The Defendant testified that he had difficulty remaining current in his child
support obligations to his first wife. He said he paid about $600 per month to his first
wife. He said that when he learned he might have to pay about that much to the victim,
he was a little ―upset,‖ but it did not ―bother‖ him.


                                           -9-
       The Defendant testified that he moved out of the marital home after the victim‘s
family accused him of whipping his son with a belt. He said he had whipped the child
and that if he had bruised the child, he did not want the bruise to be misinterpreted. He
called the sheriff‘s department and reported the family‘s allegation, and he was not
charged. He said that he would never hit his son hard enough to bruise him and that he
had never hit the victim or caused a bruise on her chest or neck.

       The Defendant testified that two days after the victim‘s death, the victim‘s family
obtained a restraining order. He said he was unable to attend the victim‘s funeral or
contact his son.

      Regarding the text messages he exchanged with Ms. Isbell on March 16, 2012, the
Defendant testified that he was probably depressed when he said he was looking for
answers in life. He said he was upset and sad about the divorce but was not angry.

        The Defendant testified that he spent the night of March 17, 2012, at Mika Davis‘s
house because they were going rock crawling early the next morning. He said that he and
Mr. Davis returned to Mr. Davis‘s house from rock crawling around 8:00 p.m. on March
18 and that he left about twenty to thirty minutes later. He said he had planned to see Ms.
Isbell later that evening. He acknowledged a text message he sent her at 8:00 p.m. that
night stated he was on his way. He said that he did not respond to a text message she sent
asking him to call her. He said that ultimately, he did not go to Ms. Isbell‘s house
because he was too intoxicated to drive across town. He said he changed his mind about
going to her house while he was driving after he left Mr. Davis‘s house. He said that the
drive from Mr. Davis‘s house to his mother‘s house took about one and one-half hours
and that he probably drove slower when he was intoxicated. He thought he might have
stopped on the side of the road to urinate. He said he arrived at his mother‘s house at
10:00 p.m. and went to bed.

       The Defendant testified that he drank eighteen beers during the day of March 18,
2012, beginning at 8:00 a.m. He said that he bought twelve additional beers after they
left the rock crawling location. He began drinking them after he purchased them,
although he did not recall how many he drank.

       The Defendant testified that his cell phone woke him on March 19, 2012. He said
he did not answer but recognized the number as the victim‘s grandmother‘s. He said he
returned the call at 7:30 a.m. He said the victim‘s grandmother stated that the victim was
dead and that he had killed her. He said that after the call, he expressed his concern to his
mother and asked if they could go to the sheriff‘s department.


                                            -10-
       When shown his cell phone records for March 19, 2012, the Defendant did not
recall having made a call at 6:05 a.m. or having received a call before the call from the
victim‘s grandmother.

       The Defendant testified that they met his uncle, Eric Rayfield, at the sheriff‘s
department and that he told his uncle he needed to talk to someone. He did not recall
whether his uncle asked for an explanation. He did not know why his uncle would claim
the Defendant had stated that he felt like he was dreaming the victim was dead and that
after he ―sobered up‖ and thought about it, he wanted to turn himself in. The Defendant
did not recall saying this. He said that when they were inside the sheriff‘s department, he
told his mother he felt like this was a dream and he could not believe he was not waking.
He acknowledged he had been upset and his memory might not be accurate.

       The Defendant testified that he was not given any information at the sheriff‘s
department about what was happening, that he was handcuffed and read his rights, and
that he did not find out the victim had been shot until a few days later. He acknowledged
he had not asked if the victim was dead or if his son was okay.

       When shown a photograph of the truck he drove around the time of the victim‘s
death, he said he knew no reason why it would have been parked in the Mount Hope
United Methodist Church parking lot on March 18, 2012, at 9:18 p.m. He said that at the
same time, he would have been driving the truck from Mr. Davis‘s house to his mother‘s
house. He said that he did not drive to Mount Hope Road on the night of March 18 and
that his route would not have taken him there. He said the officer who testified about
seeing the truck and the truck‘s license plate number was wrong, notwithstanding the
Defendant‘s having heard the recording of the officer‘s radio transmission about the truck
and tag that was played during the State‘s case-in-chief. When shown a photograph of
the marital home, he denied he had gone there on the night of March 18 and said he had
last been there about one month before the victim‘s death. He denied that he had been to
Venable Road the week before the victim‘s death and said the person who claimed to
have seen him was incorrect.

        The Defendant testified that he had a shotgun and a rifle in his truck when he went
rock crawling but denied that he had a .22 caliber pistol or rifle with him. He recognized
the two rifles previously introduced as exhibits as his. He said he stored ammunition in
his truck because he liked to hunt.

      After receiving the proof, the jury found the Defendant guilty of first degree
premeditated murder, and he was sentenced to life in prison. This appeal followed.


                                           -11-
                                              I

                               Sufficiency of the Evidence

       The Defendant contends that the evidence is insufficient to support his conviction.
He notes the proof of his intoxication, the police‘s failure to determine that any of the .22
caliber weapons recovered fired the fatal shot, Lieutenant Carroll‘s unprompted patrol in
the area of Mount Hope United Methodist Church on March 18, the proof the victim had
gunshot residue on her hands but he did not, and the failure of the police to preserve the
crime scene. The State responds that the evidence is sufficient and that the Defendant is
not entitled to relief.

        In determining the sufficiency of the evidence, the standard of review is ―whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.‖
Jackson v. Virginia, 443 U.S. 307, 319 (1979); see State v. Vasques, 221 S.W.3d 514,
521 (Tenn. 2007). The State is ―afforded the strongest legitimate view of the evidence
and all reasonable inferences‖ from that evidence. Vasques, 221 S.W.3d at 521. The
appellate courts do not ―reweigh or reevaluate the evidence,‖ and questions regarding
―the credibility of witnesses [and] the weight and value to be given the evidence . . . are
resolved by the trier of fact.‖ State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see
State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).

       ―A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.‖ State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see also State
v. Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). ―The standard of review ‗is the same
whether the conviction is based upon direct or circumstantial evidence.‘‖ State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265,
275 (Tenn. 2009)).

       Relevant to this case, first degree murder is the unlawful, intentional, and
premeditated killing of another. T.C.A. §§ 39-13-201 (2014), 39-13-202(a)(1). In the
context of first degree murder, intent is shown if the defendant has the conscious
objective or desire to cause the victim‘s death. State v. Page, 81 S.W.3d 781, 790-91
(Tenn. Crim. App. 2002); T.C.A. § 39-11-106(a)(18) (2010) (amended 2011, 2014)
(defining intentional as the ―conscious objective or desire to engage in the conduct or
cause the result‖). A premeditated act is one which is

       done after the exercise of reflection and judgment. ―Premeditation‖ means
       that the intent to kill must have been formed prior to the act itself. It is not

                                            -12-
       necessary that the purpose to kill preexist in the mind of the accused for any
       definite period of time. The mental state of the accused at the time the
       accused allegedly decided to kill must be carefully considered in order to
       determine whether the accused was sufficiently free from excitement and
       passion as to be capable of premeditation.

Id. § 39-13-202(d). The question of whether a defendant acted with premeditation is a
question of fact for the jury to be determined from all of the circumstances surrounding
the killing. State v. Davidson, 121 S.W.3d 600, 614 (Tenn. 2003). Proof of
premeditation may be shown by direct or circumstantial evidence. State v. Brown, 836
S.W.2d 530, 541 (Tenn. 1992).

        We note, first, the Defendant‘s failure to cite to the record in his statement of the
facts and in his argument relative to the sufficiency of the evidence. Tennessee Rule of
Appellate Procedure 27(a)(6) requires that an appellate brief include ―[a] statement of
facts, setting forth the facts relevant to the issues presented for review with appropriate
references to the record[.]‖ (Emphasis added.) Likewise, Rule 27(a)(7) provides that the
argument section of a brief shall set forth ―the contentions of the appellant with respect to
the issues presented, and the reasons therefor, including the reasons why the contentions
require appellate relief, with citations to the authorities and appropriate references to the
record (which may be quoted verbatim) relied on[.]‖ T.R.A.P. 27(a)(7) (emphasis
added). The rules of this court provide, ―Issues which are not supported by argument,
citation to authorities, or appropriate references to the record will be treated as waived in
this court.‖ Tenn. Ct. Crim. App. R. 10(b) (emphasis added).

        Our review of the Defendant‘s sufficiency of the evidence issue is frustrated by his
failure to include citations to the record. We note, particularly, the Defendant‘s failure to
provide any citation for his statement the proof showed gunshot residue on the victim‘s
hands, but not the Defendant‘s hands. Our review of the record has not revealed any
evidence that gunshot residue was collected and that testing occurred. To the extent that
the Defendant‘s argument is otherwise supported by the facts in the record, we will
consider it despite his failure to cite to the record. We caution the Defendant, though,
that compliance with the Rules of Appellate Procedure and the rules of this court is
expected and that failure to do so risks waiver of the affected issue.

       Viewed in the light most favorable to the State, the evidence shows that the
Defendant did not want a divorce and was upset about the amount of child support he
would be required to pay. The Defendant had existing problems with remaining current
in his child support obligations for his children from his first marriage. Although the
victim‘s attorney thought, based upon the information he had been provided, that the

                                            -13-
victim should seek an order of protection against the Defendant and that the victim
should not personally present the divorce paperwork to the Defendant, the victim planned
to meet with the Defendant on March 17 or 18 and provide him with the documents. The
victim was found dead from a gunshot wound to the head on March 19.

       Despite having made plans to visit Ms. Isbell on the evening of March 18, 2012,
the Defendant never appeared at her house and failed to communicate with her about his
change in plans. The truck the Defendant drove was seen at Mount Hope United
Methodist Church around 9:18 p.m., and no person was seen near the truck. On March
24, a bloodhound tracked the Defendant‘s scent from the front steps of the victim‘s home
to the same location in the Mount Hope United Methodist Church parking lot where the
truck the Defendant drove was parked on the night of March 18.

       Although the bullet removed from the victim‘s body was too damaged to be
matched through ballistics testing to a particular weapon, .22 caliber weapons were found
in the Defendant‘s mother‘s home, and .22 caliber ammunition was recovered from the
truck the Defendant drove and the Defendant‘s mother‘s house. The Defendant
acknowledged owning .22 caliber weapons and admitted he had two .22 caliber weapons
with him when he went rock crawling on March 18, 2012. The bullet removed during the
autopsy was consistent with the caliber and brand of ammunition recovered from the
truck the Defendant drove.

       The Defendant offered proof of his intoxication on the night of the offense, and
despite his contention to the contrary, the record reflects that the trial court instructed the
jury on voluntary intoxication. Although voluntary intoxication is not a defense to a
crime, evidence of intoxication is relevant to determining whether a defendant was
capable of forming the required mental state for the charged offense. See T.C.A. § 39-
11-503 (2014). ―The weight to be given the evidence and the determination of whether
the voluntary intoxication negated the culpable mental elements were matters for the
jury.‖ State v. Morris, 24 S.W.3d 788, 796 (Tenn. 2000).

        The Defendant testified that he drank eighteen beers throughout the day on March
18, 2012, and that he bought twelve additional beers and continued drinking in the
evening. In his brief, the Defendant notes his testimony that he was afraid he was too
intoxicated to drive to Ms. Isbell‘s house after he left Mr. Davis‘s house on March 18 and
that he went to his mother‘s house instead. The Defendant‘s position at the trial was that
he did not commit the offense, not that he was too intoxicated to have premeditated the
killing, and he did not offer any proof that his level of intoxication would have rendered
him incapable of premeditation. The evidence shows that the Defendant drank at least
eighteen and no more than thirty beers, albeit over a period of about sixteen hours. The

                                             -14-
Defendant testified that he did not want to drive through Lawrenceburg to Ms. Isbell‘s
house due to his intoxication. Mr. Davis testified that although he had asked the
Defendant if the Defendant wanted to spend the night of March 18 at Mr. Davis‘s house
due to the Defendant‘s alcohol consumption, the Defendant ―seemed fine to drive.‖

       From the proof, the jury could infer that the Defendant traveled about one-fourth
of one mile on foot from Mount Hope United Methodist Church to the victim‘s house,
where he placed a barrel under a window, removed the screen, entered the house through
the open window, shot the victim in the head with a .22 caliber weapon, left through the
front door, went to his mother‘s house, and waited until the body had been discovered the
next day before initiating any contact with the authorities. The Defendant‘s actions are
inconsistent with a conclusion he was incapable, due to intoxication, of premeditating the
victim‘s killing. The evidence is sufficient to show the Defendant intentionally and with
premeditation killed the victim. He is not entitled to relief on this basis.

                                            II

                              Testimony of Eric Rayfield

        The Defendant contends that the trial court erred in permitting the State to offer
the testimony of the Defendant‘s uncle, Eric Rayfield, for the sole purpose of impeaching
the testimony relative to a statement the Defendant made to Mr. Rayfield at the Lawrence
County Sheriff‘s Department on the morning of March 19, 2012. The Defendant
contends that despite the fact Mr. Rayfield had previously repudiated Mr. Rayfield‘s prior
written statement in his preliminary hearing testimony, the State called Mr. Rayfield and
was permitted to impeach his trial testimony with evidence of the written statement as
well as Mr. Rayfield‘s oral statements to other law enforcement officers about what the
Defendant said to Mr. Rayfield. The State counters that the trial court did not abuse its
discretion in denying the Defendant‘s motion for a mistrial on this basis.

        As we have stated previously, Mr. Rayfield met the Defendant and the
Defendant‘s mother at the sheriff‘s department on the morning of March 19, 2012, at the
Defendant‘s mother‘s request. Mr. Rayfield‘s undated written statement, which he
testified he prepared ―a couple of days after‖ Monday, March 19, 2012, states in pertinent
part:

      Dennis Allen Rayfield said to me that he thought that he was dreaming that
      his wife Julie was dead but the more he thought and sobered up the more he
      was not sure it was a dream and wanted to turn himself in and find out[.]


                                          -15-
       At the preliminary hearing, Mr. Rayfield testified relative to when he first spoke
with the Defendant at the sheriff‘s department, ―I asked him why they wanted me to
meet, and he told me he felt like he was caught in a bad dream, and that his wife was
dead.‖ After the prosecutor at the preliminary hearing refreshed Mr. Rayfield‘s
recollection with the prior written statement, which the prosecutor had Mr. Rayfield read,
Mr. Rayfield acknowledged that the statement reflected ―[p]retty much‖ what the
Defendant told Mr. Rayfield on the morning of March 19. Mr. Rayfield said the
Defendant had not said anything about receiving a telephone call in which someone told
him the victim was dead, but Mr. Rayfield said he had cut off the Defendant because Mr.
Rayfield did not want to know anything else about the situation. Mr. Rayfield was not
questioned at the preliminary hearing about the portion of the written statement in which
he said the Defendant wanted to ―turn himself in,‖ although this information was part of
what he read aloud when the prosecutor refreshed Mr. Rayfield‘s recollection with the
prior written statement.

       At the trial, the State called Mr. Rayfield as a witness during its case-in-chief. Mr.
Rayfield testified that on March 19, 2012, the Defendant‘s mother called and asked him
to meet her and the Defendant at the sheriff‘s department with ―no questions asked.‖ He
said she did not provide an explanation for her request. The prosecutor asked what the
Defendant told Mr. Rayfield when the Defendant arrived, and Mr. Rayfield responded,
―He said that he felt like he was caught in a dream and that his wife was dead.‖ Mr.
Rayfield agreed that his recollection of the details of the events when he first spoke with
his nephew might have been more clear when he prepared a written statement at Chief
Deputy Crouch‘s request a few days after March 19. When the prosecutor asked him to
read a portion of the statement, Mr. Rayfield said:

       I asked okay, what‘s up? And her son, Dennis Allen Rayfield, said to me
       that he . . . thought that he was dreaming that his wife, Julie, was dead. But
       the more he thought, and sobered up, the more he was not sure it was a
       dream and wanted to turn himself in and find out at that point.

The statement was received as an exhibit. The prosecutor then questioned Mr. Rayfield
about the events that occurred later at the sheriff‘s department.

       On cross-examination, defense counsel asked Mr. Rayfield to repeat his
recollection of what the Defendant first said to him at the sheriff‘s department. Mr.
Rayfield said, ―This is a year later. I‘m really not remembering too well. But he
basically told me that he had felt like he was caught in a bad dream and that his wife,
Julie, was dead.‖ Mr. Rayfield said that to the best of his recollection, his testimony at
the preliminary hearing had been ―pretty consistent‖ with his current testimony. At

                                            -16-
defense counsel‘s request, Mr. Rayfield read the relevant portion of the written statement
a second time. Mr. Rayfield agreed the statement was ―pretty much consistent‖ with his
trial and preliminary hearing testimony. He said his impression of the Defendant‘s
statement was that the Defendant ―thought he was caught in a bad dream.‖

       On redirect examination, the following occurred:

               Q.    Well, [defense counsel] paints your statements as being
       consistent and I guess that‘s up for the jury to decide. But I want to point
       out that, what you said at the preliminary hearing and what you said today
       is not exactly what you said to the statements you wrote . . . two days . . .
       after, which said, ―He said to me that he thought he was dreaming that his
       wife Julie was dead. But the more he thought, and sobered up, the more he
       was not sure it was a dream and wanted to turn himself in.‖ Those are your
       words, written two days after it happened, correct?

              A.     That is correct, sir.

The prosecutor and defense counsel continued questioning Mr. Rayfield, but their
questioning focused primarily on his use and the meaning of the phrase ―turn himself in‖
in reference to the Defendant‘s appearance at the sheriff‘s department.

      Defense counsel did not object to the State‘s calling Mr. Rayfield as a witness, nor
did counsel make any contemporaneous objections to the State‘s questioning of Mr.
Rayfield.

       After Mr. Rayfield testified, the State called Chief Deputy Crouch and Captain
Brewer as witnesses. The prosecutor asked Chief Deputy Crouch about the events of
March 19, 2012, and Chief Deputy Crouch related that Mr. Rayfield approached him in
the lobby of the sheriff‘s department and asked to speak with him. When the prosecutor
inquired what Mr. Rayfield told Chief Deputy Crouch, the Defendant objected on the
basis the answer would be hearsay. The prosecutor said the question was asked to elicit
―specific things that Mr. Rayfield . . . said for impeachment purposes of Eric Rayfield . . .
[b]ased on his testimony about turning yourself in being a term of law enforcement
officers.‖ The trial court overruled the objection. Chief Deputy Crouch then testified
that Mr. Rayfield said the Defendant thought he had hurt or killed someone and was there
to ―turn himself in.‖ Chief Deputy Crouch said that in his thirty years of law
enforcement experience, the phrase ―turn himself in‖ meant the person was there for
questioning. When the prosecutor asked if the phrase could refer to a person‘s presence
to report a crime in which the person was uninvolved, the defense objected on the basis

                                             -17-
the question had been asked and answered. The court overruled the objection. Chief
Deputy Crouch then testified that in his experience, the phrase ―turn himself in‖ did not
refer to a person who was reporting a crime in which the person was uninvolved. On
cross-examination, Chief Deputy Crouch conceded the ―[p]ossibility‖ that the phrase
could refer to a person who was trying to learn the facts of a situation.

       During Captain Brewer‘s testimony, he said Chief Deputy Crouch told him in the
parking lot of the sheriff‘s department, ―Well, there‘s a guy in the lobby that says that he
had a dream that he may have killed his wife.‖ The Defendant made a hearsay objection,
and the court sustained the objection and instructed the prosecutor to rephrase the
question. The State did not ask the question again on direct examination. Captain
Brewer testified that he showed Chief Deputy Crouch a photograph of a person who was
a person of interest in the possible homicide case and that Chief Deputy Crouch said the
person in the photograph was the person in the lobby. Captain Brewer then testified
about his advising the Defendant of his Miranda rights and their engaging in small talk
while waiting for Wayne County authorities to arrive. Captain Brewer said he did not
question the Defendant.

       On cross-examination, defense counsel asked Captain Brewer how he connected
the information between the photograph of the person of interest and the person in the
lobby. Captain Brewer said Chief Deputy Crouch did not tell him the identity of the
person in the lobby but did tell him the person was concerned about the death of a spouse.
Captain Brewer said he connected the person of interest with the person in the lobby
based upon this information. The defense questioned Captain Brewer further about the
events after he approached Mr. Rayfield in the lobby.

        On redirect examination, the prosecutor asked, ―Captain, now that [defense
counsel has] asked you what caused you to connect the dots between the driver‘s license
picture that you had and the person in the lobby; what did [Chief Deputy] Crouch tell you
about that person in the lobby?‖ Defense counsel objected on the basis of hearsay, and
the trial court overruled the objection. Captain Brewer testified, ―He said that there was a
man in the lobby that had had a dream that he had killed his wife. And that, the more that
he had sobered up, the more the dream seemed a reality.‖ The prosecutor asked if the
statement was the reason he thought the person in the lobby might be the person of
interest, and Captain Brewer agreed that it was. He said the statement was the reason he
showed Chief Deputy Crouch the photograph.

      On recross-examination, defense counsel asked questions to clarify that the
statement about the dream attributed to the Defendant had been relayed from the
Defendant to Mr. Rayfield to Chief Deputy Crouch to Captain Brewer.

                                           -18-
        The day after Mr. Rayfield, Chief Deputy Crouch, and Captain Brewer testified,
the Defendant filed a motion for a mistrial in which he alleged that the State‘s calling of
Mr. Rayfield as a witness violated Tennessee Rule of Evidence 607 because the State had
called Mr. Rayfield with the sole purpose of impeaching his testimony with otherwise
inadmissible hearsay evidence. He complained that Chief Deputy Crouch and Captain
Brewer were permitted to testify that Mr. Rayfield had stated previously that the
Defendant dreamed he had killed his wife. In support of the argument Mr. Rayfield‘s
testimony had been offered for the sole purpose of impeaching it, defense counsel noted
that the State had been aware of Mr. Rayfield‘s preliminary hearing testimony, which
counsel argued was different from the written statement Mr. Rayfield gave a few days
after the relevant events. In responding to the motion for a mistrial, the prosecutor noted
that the State had been aware of Mr. Rayfield‘s written statement, the verbal statement to
Chief Deputy Crouch, and the preliminary hearing testimony, but that the State ―had no
idea which one he was going to stick with.‖ The prosecutor noted, as well, that Mr.
Rayfield‘s preliminary hearing testimony ―was not even exactly like‖ his trial testimony.
The trial court denied the motion without elaboration.

       Questions regarding the admissibility and relevancy of evidence generally lie
within the discretion of the trial court, and the appellate courts will not ―interfere with the
exercise of that discretion unless a clear abuse appears on the face of the record.‖ State v.
Franklin, 308 S.W.3d 799, 809 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d 136, 141
(Tenn. 2007)).

       Tennessee Rule of Evidence 607 provides, ―The credibility of a witness may be
attacked by any party, including the party calling the witness.‖ The Advisory
Commission Comments state, ―Decisional law prohibits a lawyer from calling a witness –
knowing the testimony will be adverse to the lawyer‘s position – solely to impeach that
witness by an inconsistent statement.‖ Rule 613 permits impeachment of a witness with
a prior inconsistent statement. See Tenn. R. Evid. 613. A prior inconsistent statement
may be used as substantive evidence. Tenn. R. Evid. 803(26). However, ―a witness may
not be impeached primarily for the purpose of introducing the prior inconsistent
statement.‖ Neil P. Cohen et al., Tennessee Law of Evidence § 6.13[2][d] (6th ed. 2011);
see State v. Jones, 15 S.W.3d 880, 891-92 (Tenn. Crim. App. 1999).

       In previous cases involving allegations that a party offered a witness‘s testimony
for the sole purpose of impeaching the testimony with otherwise inadmissible evidence,
this court has considered whether the prior statement and the testimony were inconsistent,
whether the party calling the witness was aware the witness had disavowed the previous
statement, and whether evidence existed to show the witness had been called for the sole

                                             -19-
purpose of impeachment. See Jones, 15 S.W.3d at 892; Mays v. State, 495 S.W.2d 833,
836-37 (Tenn. Crim. App. 1972); State v. Harold Francis Butler, No. E2014-00631-
CCA-R3-CD, 2015 WL 2233122, at *7-8 (Tenn. Crim. App. May 11, 2015), perm. app.
filed (Tenn. July 10, 2015); State v. Deundrick Laran Coble, No. W2001-00039-CCA-
R3-CD, 2002 WL 31259501, at *3 (Tenn. Crim. App. Aug. 30, 2002); State v. Roy L.
Payne, No. 03C01-9202-CR-00045, 1993 WL 20116, at *1-2 (Tenn. Crim. App. Feb. 2,
1993).

        The Defendant argues that at the preliminary hearing, Mr. Rayfield disavowed the
prior written statement by ―stat[ing] that the assertion [in the written statement relative to
what the Defendant said to Mr. Rayfield at the sheriff‘s department] was incorrect‖ and
stated that what he had actually been told by the Defendant was that the Defendant felt he
was ‗caught in a bad dream and his wife was dead.‘‖ Although the wording of Mr.
Rayfield‘s preliminary hearing testimony was not exactly the same as his written
statement, the general import of both was that Mr. Rayfield reported that the Defendant
had said he felt like he was dreaming or like he was caught in a dream.

       At the preliminary hearing, Mr. Rayfield acknowledged the contents of the written
statement and said it ―[p]retty much‖ reflected what the Defendant told him, although his
preliminary hearing testimony tended to minimize the Defendant‘s culpability by
omitting the reference to the Defendant‘s turning himself in. Mr. Rayfield was not
specifically asked, though, at the preliminary hearing about the portion of the written
statement in which he said the Defendant wanted to ―turn himself in and find out‖ about
the victim.

       At the trial, Mr. Rayfield did not disavow the accuracy of his written statement
about the Defendant‘s desire to turn himself in. To the extent that Mr. Rayfield
addressed this portion of the written statement in his trial testimony, he explained his
understanding of the phrase‘s meaning in law enforcement parlance. His understanding
of the meaning tended to minimize the Defendant‘s culpability, but it was not
inconsistent with the portion of the written statement in which he said the Defendant
―wanted to turn himself in and find out.‖

       At the hearing on the motion for a new trial, the prosecutor addressed the
allegation the State had called Mr. Rayfield as a pretext to impeach him with his written
statement and to call Chief Deputy Crouch and Captain Brewer to impeach Mr.
Rayfield‘s testimony with his prior statements to them. The prosecutor stated that the
State had prepared Mr. Rayfield for trial and expected him to testify a certain way but
that Mr. Rayfield had been disingenuous with the State about his testimony. The
prosecutor stated that the impeachment was prompted because Mr. Rayfield‘s testimony

                                            -20-
had been different than Mr. Rayfield had led the State to believe it would be, and the
prosecution argued that the State was permitted to impeach its own witness pursuant to
Tennessee Rule of Evidence 607.

        Based upon the prosecutor‘s statement to the court about the State‘s preparing Mr.
Rayfield for his trial testimony and Mr. Rayfield‘s deception relative to the content of his
trial testimony, we conclude that the Defendant has not shown that the State was aware,
when it called Mr. Rayfield as a trial witness, that Mr. Rayfield had disavowed his
written statement. In the absence of such evidence, we cannot conclude that Mr. Rayfield
was called as a witness as a pretext to introducing his written statement and that the
testimony of Chief Deputy Crouch and Captain Brewer should not have been allowed to
impeach Mr. Rayfield‘s testimony.

       We turn to the question of whether the trial court erred in denying the Defendant‘s
motion for a mistrial. A trial judge should declare a mistrial if manifest necessity arises.
Arnold v. State, 563 S.W.2d 792, 794 (Tenn. Crim. App. 1977). Manifest necessity
occurs when ―no feasible alternative to halting the proceedings‖ exists. State v. Knight,
616 S.W.2d 593, 596 (Tenn. 1981). ―The granting or denial of a mistrial is within the
sound discretion of the trial court.‖ State v. McKinney, 929 S.W.2d 404, 405 (Tenn.
Crim. App. 1996); see State v. Jones, 802 S.W.2d 221, 222 (Tenn. Crim. App. 1990).
This court will only disturb that decision if the trial court abused its discretion. State v.
Adkins, 786 S.W.2d 642, 644 (Tenn. 1990).

       In the present case, the Defendant has failed to establish the underlying legal
errors upon which he contends the trial court should have granted a mistrial. For this
reason, he cannot establish that the court abused its discretion in denying his motion for a
mistrial. He is not entitled to relief on this basis.

                                             III

                          Failure to Dismiss Alternate Jurors

        The Defendant contends that the trial court erred in failing to dismiss the alternate
jurors at the close of the proof and by requiring the alternate jurors to remain available
until the verdict was reached. He acknowledges the court‘s statement at the motion for a
new trial hearing that the alternate jurors were kept apart from the jurors during the
deliberations, the court clerk‘s unsworn statement to this effect, and the court‘s statement
that its usual practice was to require the jurors to remain available but not in the jury
room until a verdict was reached. The State contends that the court‘s procedure, though
erroneous, was harmless.

                                            -21-
      Tennessee Rule of Criminal Procedure 24(f) provides:

             (f) Additional Jurors. -- Before jury selection begins, the court may
      call and impanel one or more jurors in addition to the regular jury of twelve
      persons. The following procedures apply:

             (1) Same as Regular Jurors. -- The additional jurors shall be
             drawn in the same manner, have the same qualifications, be
             subject to the same examination and challenges, take the
             same oath, and have the same functions, powers, facilities,
             and privileges as the regular jurors.

             (2) Methods of Impaneling Additional Jurors. -- The trial
             court may use either of the following methods to select and
             impanel additional jurors:

             (A) Single Entity. -- During jury selection and trial of the
             case, the court shall make no distinction as to which jurors are
             additional jurors and which jurors are regular jurors. Before
             the jury retires to consider its verdict, the court shall select by
             lot the names of the requisite number of jurors to reduce the
             jury to a body of twelve or such other number as the law
             provides. A juror who is not selected to be a member of the
             deliberating jury shall be discharged when that jury retires to
             consider its verdict.

              (B) Separate Entities. -- Following the selection of the jury of
             twelve regular jurors, the additional jurors shall be selected
             and impaneled as alternate jurors. Alternate jurors in the
             order in which they are called shall replace jurors who
             become unable or disqualified to perform their duties prior to
             the time the jury retires to consider its verdict. An alternate
             juror who does not replace a regular juror shall be
             discharged when the jury retires to consider its verdict.

(Emphasis added.)

       As the parties have accurately noted, the Rules of Criminal Procedure provide that
alternate jurors shall be discharged once the jury retires to deliberate. The Defendant

                                            -22-
notes that in Patten v. State, 426 S.W.2d 503, 506 (Tenn. 1968), the Defendant was
granted a new trial because the alternate juror remained with the jury during its
deliberations but was instructed not to participate in the deliberations. The Defendant
argues that because no testimony was offered to show that the alternate jurors were not in
the jury room during deliberations, he should be afforded relief. He has cited no
authority, however, to support a conclusion that the error is presumptively prejudicial.

       After the jury returned with its verdict and before the verdict was read, the court
observed, ―Let the record reflect that the jury has returned to the courtroom. And the
alternate jurors are also here, although they have not participated in any deliberations.‖
The record reflects that the Defendant‘s first objection to the trial court‘s deviation from
the rule occurred in the amended motion for a new trial. At the hearing on the motion for
a new trial, the court noted in response to defense counsel‘s assertion that Patten dictated
the Defendant should receive a new trial, ―I don‘t think that the three [alternate] jurors –
it was only twelve jurors that deliberated and arrived at a verdict in this case. The three
alternates weren‘t in there during their deliberations.‖ Defense counsel responded, ―They
indicated that they were, Your Honor.‖ The court disagreed and said the alternate jurors
had been in the courtroom or a ―private room.‖ The court clerk agreed that the alternate
jurors had been in a private room. Defense counsel did not offer any proof to support his
assertion that the alternate jurors had been in the jury room, and no evidence supporting
this conclusion appears in the record.

       We conclude that although the trial court erred in failing to dismiss the alternate
jurors at the appropriate time, the Defendant has not shown that they were present during
the jury‘s deliberations or that their retention in any way affected the deliberations. The
Defendant is not entitled to relief on this basis.

                                            IV

           Sequestered Jurors’ Possession of Cell Phones During the Trial

       The Defendant contends that a separation of the sequestered jury occurred because
the jurors were allowed to keep their cell phones during the trial. The State responds that
the jurors‘ cell phone access created nothing more than the possibility of separation and
that the Defendant is not entitled to relief because he has not shown that the jurors were
exposed to extraneous prejudicial information.

       Immediately after the jury was sworn, the trial court gave its preliminary jury
instructions, which included admonitions not to talk to the attorneys, the witnesses, or the
Defendant. The court also provided the following instruction:

                                           -23-
             During the course of the trial, you will receive all the evidence you
      may properly consider to decide this case. Because of this, you should not
      attempt to do any research on your own, or gather any information on your
      own, that you think might be helpful. Do not engage in any outside
      reading, visit any places mentioned in this case, or try to learn about the
      case outside of this courtroom in any other manner.

       At the end of the second day of the trial, which was the same day the jury was
sworn and given the preliminary instructions, the trial court gave the following
instruction:

      Please remember what I told you about don‘t discuss this case with anyone,
      certainly don‘t discuss it among yourselves, or watch any TV accounts of
      this trial. I haven‘t seen any of the cameramen around, so I doubt there will
      be, but even if it is, don‘t watch that and don‘t listen to any radio accounts.

      ....

      Don‘t read any of the newspapers [sic] articles, regardless of where they
      are.

      On the third day of the trial, which was the day after the jury was sworn, defense
counsel stated:

             Also, Your Honor, if you don‘t mind I want to . . . We discussed this
      briefly, yesterday, in chambers, I wanted to put on the record. I noticed,
      yesterday, as the jury was coming out as many of five of them had cellular
      telephones strapped to their belts. And I know the Court has sequestered
      the jury, has instructed them not to have contact with anyone concerning
      this case, has gone so far as to put them into a hotel here in town. And I
      wanted to lodge my objection, to the Court, allowing them to maintain
      possession of their cell phones while this case is proceeding.

             I know the Court ruled on it yesterday, that you were not going to
      take their phones away from them. And if that‘s your decision –

The judge responded, ―I‘ll talk to them about that.‖ When the jurors returned to the
courtroom, the judge gave the following instruction:


                                           -24-
       Ladies and gentlemen of the jury, let me caution you one more time: I
       know all of you – or maybe not all of you, but most of you, I guess – have
       one of those cell phones. I don‘t want you to be carrying on any
       conversations with anybody using those instruments while you‘re on this
       case, as a jury, that‘s the same as if you talked to them. Does everybody
       understand? I don‘t want to take them up.

              And I‘ll even further instruct you that, if you should get a call on one
       of those machines, and you tell whoever is calling that you can‘t discuss
       anything with them. In fact, just hang up the phone. Don‘t talk to them.

Relative to this instruction, the record reflects, ―Whereupon, jurors nod heads in the
affirmative[.]‖

        The Defendant argues that he has established a separation and that the State failed
to present any evidence to meet its burden of establishing ―that nothing occurred to allow
the jury to mingle with others in the community and form opinions about the case related
to something other than the evidence developed at trial.‖ The Defendant argues that he is
entitled to a new trial.

         Tennessee Code Annotated section 40-18-116 (2012) provides, ―In all criminal
prosecutions, except those in which a death sentence may be rendered, jurors shall only
be sequestered at the sound discretion of the trial judge, which shall prohibit the jurors
from separating at times when they are not engaged upon actual trial or deliberation of
the case.‖ The purpose of the sequestration rule is to ―preserve a defendant‘s right to a
fair trial and impartial jury by protecting jurors from outside influences so that the verdict
will be based only upon evidence developed at trial[.]‖ State v. Bondurant, 4 S.W.3d
662, 671 (Tenn. 1999) (citing 23A C.J.S. Criminal Law § 1363(a) (1989)). ―[I]t is
perhaps more important in the modern age, considering the pervasiveness of media
coverage and publicity.‖ Id. Once a defendant establishes a separation of a sequestered
jury, the burden shifts to the State to show that the defendant was not prejudiced by the
separation. Bondurant, 4 S.W.3d at 672; Gonzalez v. State, 593 S.W.2d 288, 291 (Tenn.
1980). A mere possibility of a separation, though, is insufficient to place the burden upon
the State to show lack of prejudice. State v. McClain, 667 S.W.2d 64, 66 (Tenn. 1984).
Rather, a defendant must show that an actual separation occurred. Id.

       As our supreme court has noted:

       [A]t common law, the sequestration rule required that jurors be physically
       kept together within the presence of each other without food, drink, fire or

                                            -25-
       light until a verdict was agreed upon. Gonzales v. State, 593 S.W.2d 288,
       292 (Tenn. 1980); Annotation, Separation of Jury in Criminal Case, 34
       A.L.R. 1115, 1117 (1925). The common law rule has been greatly relaxed,
       and currently, sequestration is a creature of statute. Mary Strauss,
       Sequestration, 24 Am.J.Crim. L. 63, 70 (Fall 1996). Moreover, under
       modern law, the test of keeping a jury ―together‖ is not a literal one,
       requiring each juror to be at all times in the presence of all others. The
       practical needs of personal hygiene and separate rooms for sleeping, if
       nothing else, preclude such a literal application. The real test is whether a
       juror passes from the attendance and control of the court officer. State v.
       Bartlett, 137 Vt. 400, 407 A.2d 163, 166 (1979).

               Although the sequestration rule is no longer literally applied, the
       purpose of the rule -- to preserve a defendant‘s right to a fair trial and
       impartial jury by protecting jurors from outside influences so that the
       verdict will be based only upon evidence developed at trial -- is perhaps
       more important in the modern age, considering the pervasiveness of media
       coverage and publicity. 23A C.J.S. Criminal Law § 1363(a) (1989). Many
       years ago, this Court emphasized that ―[t]oo much strictness cannot be used
       to keep a jury charged with the life or liberty of a citizen, from mingling
       with the community during their deliberations, and this the more especially
       where there is any excitement for or against the prisoner.‖ Cochran v.
       State, 26 Tenn. (7 Hum.) 544, 547 (1847).

Bondurant, 4 S.W.3d at 671-72.

        In State v. Smith, 418 S.W.3d 38, 42 (Tenn. 2013), a juror communicated during
the trial via a social media website with a State‘s witness. The court said that despite the
advent of technology and the resulting increasing ease with which jurors could
communicate with third parties and despite the increasing difficulty in detecting such
communications, ―our pre-internet precedents provide appropriate principles and
procedures to address extra-judicial communications[.]‖ Id. at 47. To that end, the
inquiry begins with determining ―whether the trial court received reliable and admissible
evidence that an extra-judicial communication between a juror and a third party
occurred.‖ Id. at 48. Our supreme court has said, ―It is the opportunity of tampering with
a juror, afforded by the separation which constitutes the ground for a new trial, but if such
separation afforded no such opportunity, there can be no cause for a new trial.‖
Cartwright v. State, 80 Tenn, 620, 625 (1883) (quoted in Gonzalez, 593 S.W.2d at 291).



                                            -26-
        In State v. Bondurant, 4 S.W.3d at 670-71, the defendant presented proof that the
sequestered jurors were allowed twice daily during the eight-day trial to drive their
personal vehicles between their hotel and the courthouse. The defendant noted that the
case had been highly publicized and had been covered by newspaper, television, and
radio media outlets. Id. at 671. A court officer stated in an affidavit that he had no
control over the jurors during their travels and that he had no knowledge of their
activities and stops during their travels. Id. The State did not offer proof to rebut the
showing of jury separation. Id. In rejecting the State‘s argument that the facts presented
the possibility of a separation but not an actual separation, the supreme court was
influenced by the officer‘s affidavit indicating his lack of knowledge and control relative
to the jurors during their commutes. Id. at 673.

       In State v. Jackson, 173 S.W.3d 401, 410 (Tenn. 2005), the defendant contended
that the sequestered jury was separated because several jurors encountered the spouse of
a deputy, a juror spoke to an unknown person at a restaurant, and a non-juror was
removed from a buffet line in which the jurors were standing. The supreme court
concluded, though, that the State rebutted the presumption of prejudice by presenting the
testimony of all of the jurors and the deputy that they did not discuss the case with any
non-jurors and with the deputy‘s spouse‘s testimony that he did not know the facts and
circumstances of the case. Jackson, 173 S.W.3d at 410-11.

        In State v. Jeffrey D. Allen, No. W2008-01348-CCA-R3-CD, 2009 WL 2502000,
at *8-9 (Tenn. Crim. App. Aug. 17, 2009), perm. app. denied (Tenn. Feb. 22, 2010), the
defendant contended that a separation of the sequestered jury occurred when some of the
jurors made calls with their cell phones without prior authorization, even though the trial
court had instructed the jurors not to use their cell phones without first informing a court
officer of the intent to do so and of the intended topic of the call. After the matter came
to the trial court‘s attention, it inquired of the jurors, who ―indicated as a whole‖ they had
not discussed or received information relevant to the case during their cell phone
conversations. Id. at *9. The court polled the jurors individually, and each indicated that
any cell phone conversations were limited to personal or family matters. Id. This court
concluded that the State‘s burden to rebut the presumption of prejudice was satisfied by
the jurors‘ assurances they had not engaged in any communication about the case. Id.

      In James Dellinger and Gary Wayne Sutton v. State, No. E2004-01068-CCA-R3-
PC, 2006 WL 1679595, at *22-23 (Tenn. Crim. App. June 19, 2006), perm. app. denied
(Tenn. Oct. 30, 2006), the post-conviction petitioners argued that a separation of the
sequestered jury occurred during a ―family night‖ at which the jurors‘ family members
were allowed to visit the jurors. A juror testified that family night took place in a ―big
room,‖ that the court officers did not monitor his private conversation with his family,

                                            -27-
and that to his knowledge, the jurors did not violate any of the instructions about not
discussing the case. This court determined that the petitioners were not entitled to post-
conviction relief because they failed to establish a separation of the jury because the
evidence did not show ―that the jurors were outside the presence of the court officers
during the family gathering.‖ James Dellinger, 2009 WL 1679595, at *23. The James
Dellinger court contrasted the Bondurant case on the basis that the jurors had been
outside the control of the court officer when they traveled to and from the courthouse and
that Bondurant involved more than a possibility of jury separation.

       In the present case, the Defendant challenges the jurors‘ possession of cell phones
as a prohibited separation of the jury. He has not alleged or offered any proof that they
actually used their phones to communicate with persons outside the jury or to engage in
prohibited internet research about the case. We conclude that he has shown a possibility
of a separation but that he has not shown an actual separation occurred. See McClain,
667 S.W.2d at 66. In reaching our conclusion, we distinguish this case from Jeffrey D.
Allen, in which case a separation was shown because some jurors used their cell phones
to make calls without obtaining permission in advance, contrary to the trial court‘s
instructions, and from Jackson, in which actual separation was shown through jurors‘
contact with third parties. We likewise distinguish the present case from Bondurant, in
which actual physical separation of the jurors from the court officer was shown. Because
the Defendant in the present case did not make a prima facie showing of a jury
separation, prejudice cannot be presumed.

       In reviewing this issue, we have noted that neither the Code nor Tennessee
appellate courts has directly addressed what, if any, electronic devices jury members are
allowed to retain during sequestered trials. The pattern jury instruction regarding
independent research or discussion addresses the matter indirectly:

      I know that many of you use cell phones, Blackberries, the internet and
      other tools of technology. You also must not talk to anyone about this case
      or use these tools to communicate electronically with anyone about the
      case. This includes your family and friends. You may not communicate
      with anyone about the case on your cell phone, through e-mail, Blackberry,
      iPhone, text messaging, or on Twitter, through any blog or website, through
      any internet chat room, or by way of any other social networking websites,
      including, but not limited to, Facebook, My Space, LinkedIn, and
      YouTube.

7 Tennessee Practice, T.P.I.—Crim. 1.09 (18th ed. 2014). The pattern instruction
admonishes jurors not to use electronic devices or social media to communicate ―about

                                          -28-
the case,‖ but it stops short of prohibiting all usage. We acknowledge, though, that the
pattern instruction is not specific to trials in which the jury is sequestered. As our
supreme court noted in Smith, modern communications technology dramatically increases
the risk that jurors will conduct outside research and investigation and that they will
engage in prohibited communications with third parties. Smith, 418 S.W.3d at 47. In the
absence of any specific directives from our supreme court, though, trial courts,
particularly those conducting trials involving sequestered juries, should consider limiting
jurors‘ access to personal electronic devices and utilizing the pattern jury instruction
regarding electronic communication.

        In consideration of the foregoing and the record as a whole, the judgment of the
trial court is affirmed.


                                            _____________________________________
                                             ROBERT H. MONTGOMERY, JR., JUDGE




                                           -29-
