             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT NASHVILLE            FILED
                            FEBRUARY 1998 SESSION
                                                           February 10, 1999

                                                          Cecil W. Crowson
                                                         Appellate Court Clerk
STATE OF TENNESSEE,                    )    No. 01C01-9609-CR-00412
                                       )
      Appellee                         )
                                       )    PUTNAM COUNTY
V.                                     )
                                       )    HON. LEON C. BURNS, JR.,
DAVID LEE ROBINSON and                 )    JUDGE
DELORES KAY SMITH,                     )
                                       )
      Appellants.                      )    (First Degree Murder)
                                       )
                                       )


For the Appellant:                          For the Appellee:

William A. Cameron                          John Knox Walkup
Randy S. Chafin                             Attorney General and Reporter
Cameron & Chafin
100 S. Jefferson Avenue                     Karen M. Yacuzzo
Cookeville, TN 38501                        Assistant Attorney General
(Defendant Robinson)                        425 Fifth Avenue North
                                            Nashville, TN 37243-0493
David N. Brady
District Public Defender
215 Reagan Street                           Eric D. Christiansen
Cookeville, TN 38501                        District Attorney General Pro Tem
(Defendant Smith)                           113 W. Church Street, Suite J
                                            Greeneville, TN 37745




OPINION FILED: ___________________


AFFIRMED


William M. Barker, Special Judge
                                          OPINION


       The appellants, David Lee Robinson and Delores Kay Smith, appeal as of right

from their convictions in the Putnam County Criminal Court. Appellant Robinson was

convicted of first degree murder and sentenced to life in prison. Appellant Smith was

convicted of second degree murder and sentenced to serve eighteen years and fined

$40,000.

       On appeal, appellants each raise the following two issues:

       (1) whether the trial court erred in allowing an agent from the Tennessee
       Bureau of Investigation to testify as an expert that certain suspects were
       not involved in the crime; and

       (2) whether the trial court erred in limiting cross-examination of
       Jacqueline Langford regarding her recollection of a statement made by
       appellant Smith.

In addition, appellant Robinson challenges (a) the admission of testimony that witness

Kim Sims aborted a pregnancy which resulted from a relationship with him, and (b) the

trial court’s failure to instruct the jury not to listen to the audio portion of a videotape

exhibit during its deliberations. Our review of the record reveals that no reversible

error was committed in the trial court. Accordingly, we affirm appellants’ convictions

and sentences.

       Appellants were indicted for the first degree murder of Gerald L. Irwin in

Putnam County. During the evening of January 12, 1995 and early morning hours of

January 13, the victim contacted appellant Robinson several times about the payment

of a $200 debt that Robinson owed him. Robinson met with the victim, a known drug

dealer, on two occasions that night, but denied having the money to pay the debt.

Finally, Robinson called the victim and said that he had the money and expressed his

desire to meet the victim. The victim suggested that they meet at the “old oak tree” in

Cookeville.

       Evidence showed that Robinson resold drugs that he obtained from the victim

and, specifically, that he sold drugs to appellant Smith and had done so for


                                              2
approximately one year. Smith was at the Robinson residence to purchase drugs on

the night of January 12, 1995. Although she did not know the details, Smith was

aware that someone was trying to collect money from Robinson. In conjunction with

that, Smith had driven Robinson to a pay phone to make phone calls that evening.

She was also present at the Robinson home when the victim called and suggested the

meeting at the oak tree. Smith agreed to take Robinson there.

         Smith drove Robinson to the old oak tree and they waited for the victim to

arrive. Robinson was in possession of a small handgun that Smith had provided.1 As

the victim approached, Robinson exited the vehicle and told Smith to drive around and

then come back and get him. Robinson got into the backseat of the victim’s car. Kim

Sims was a passenger in the front seat. The victim drove a short distance and pulled

into a parking lot to turn around. As the victim turned his car, Robinson shot him in the

back of the head. Robinson then told Kim Sims to move to the backseat. Robinson

got in the driver’s seat and pushed the victim’s body over so that he could drive the

car. As Robinson drove the victim’s vehicle past Smith’s vehicle, he motioned for her

to follow him.

        They drove on Interstate 40 to the Smithville exit where Robinson pulled off and

parked the victim’s car on Tucker Ridge Road. He took the victim’s wallet, cellular

phone, pager, money, and some drugs. He and Sims got into the Smith vehicle and

they returned to Cookeville. Robinson, Smith, and Sims concocted a “story” regarding

their activities that evening. The day following the shooting, Robinson called the

victim’s friends and family inquiring about his whereabouts, apparently in an attempt to

divert any suspicion.

        According to Sims’ testimony, she spent part of the day pretending to be

looking for the victim and asking others about his whereabouts, likewise in an effort to

divert suspicion from her. Both Sims and Smith gave statements to law enforcement


        1
        In her statement to the police, Smith said that she had given Robinson the gun earlier that
evening when he m ade the statemen t, “I need a gun.”

                                                   3
officials that corroborated the concocted story. Those statements were later recanted

and both gave new statements to law enforcement officials.

         Robinson testified at the trial and denied having any intent to kill the victim. He

claimed that he shot the victim in self-defense. Robinson said that the victim had

threatened him and his family over the course of the night and he shot the victim

because the victim pointed a gun at him while in the car. 2 Although she did supply the

gun, Robinson stated that Smith had nothing to do with the murder and did not know

anything about it. The State theorized, however, that Robinson and Smith planned

the murder and both were involved. Although certain details were corroborated by a

number of other witnesses, the State’s theory was established principally by Kim

Sims, the only eyewitness to the crime. Sims testified that she did not see the victim

reach for his gun, and although she had been with the victim several hours that night,

she never heard him threaten Robinson.

         Smith did not testify at trial, but her second statement to law enforcement

officials corroborated Robinson’s testimony that he was fearful of the victim. In her

statement, Smith denied any involvement in the murder, but admitted giving the

weapon to Robinson. The jury convicted Robinson of the first degree murder of Irwin.

Under a theory of criminal responsibility, Smith was convicted of the lesser offense of

second degree murder.

         In their first issue, appellants challenge the trial court’s ruling which permitted

Special Agent Larry O’Rear of the Tennessee Bureau of Investigation to testify that

suspects James and Nicole Rice were not involved in the murder of Gerald Irwin.

While appellants do not challenge O’Rear’s qualifications, they argue that his

testimony invaded the province of the jury by impermissibly offering an expert opinion

on the credibility of witnesses.




         2
          Und ispu ted p roof esta blishe d tha t the vic tim w as ar me d with a .35 7 Ma gnu m w hich was visible
in the front seat of his car.

                                                         4
         During the police investigation into Gerald Irwin’s murder, Agent O’Rear

interviewed Kim Sims. In her first statement, she told Agent O’Rear that she and Irwin

had been at the home of James and Nicole Rice in Baxter prior to the murder. Sims

also told him that the victim left her at a motel and went back to the Rice home for a

drug deal.

         Based on that statement, O’Rear testified that the Rices became the “prime

suspects” in the victim’s murder. Police searched the Rice home and also took

statements from both of the Rices. However, in light of additional information

gathered during the entire investigation, Agent O’Rear testified that he determined the

Rices were not involved in the murder. Sims later recanted her statement.

         At trial, Smith’s counsel objected to O’Rear’s testimony on the basis that the

testimony was hearsay. The testimony was not hearsay and the objection was

correctly overruled. For the first time on appeal, the appellants argue that O’Rear’s

testimony invaded the province of the jury by impermissibly offering an expert opinion

on the credibility of witnesses. This argument was waived when it was not raised at

the trial court level. See Tenn. R. Evid. 103(a)(1); Lee v. Lee, 719 S.W.2d 295 (Tenn.

Ct. App. 1986). Therefore, we decline to address this issue.

         Appellants also challenge the trial court’s ruling that limited the cross-

examination of witness Jacqueline Langford.3 Appellant Robinson was living with

Langford at the time of the crime and they had a child together. Langford was

acquainted with Smith because Smith purchased drugs from Robinson at their home.

Langford stated that Smith came to her house between 9:00 and 10:00 a.m. on the

morning of January 13, 1995. Langford testified that she thought Smith made a

statement to the effect that Robinson was supposed to have killed Sims the night




         3
          This is not a pro per is sue for S mith to rais e on a ppe al. Th e trial c ourt lim ited o nly Ro bins on’s
cross examination of Langford; no objection appears in the record to the questions asked by Smith’s
couns el. As a result, we address the issue only as to appellant Robinson.

                                                           5
before. She indicated on direct examination that she was uncertain of the exact

statement Smith made that morning.

      The following colloquy took place during cross-examination of the witness by

Robinson’s counsel:

      Q.     And, now, you say in here that she [Smith] said he [Robinson]

      was supposed to kill her [Sims] too. Is that right?

      A.     I said I think that’s what she said.

      Q.     Under oath today, can you swear that’s what she said?

      A.     No. I think that’s what she said.

      Q.     You think that’s what she said. Could she have said he could have killed

      them both?

      GEN. CHRISTIANSEN: If your Honor, please, I respectfully object on

      what could have.

      THE COURT: Sustained.

      MR. CHAFFIN: Your Honor, I think I have a right to go in and ask her.

      THE COURT: You can ask her, but that question was improper. Sustain

      the objection.

      Q.     You’re under oath today, right?

      A.     Uh huh.

      Q.     You cannot swear that’s what she said, can you?

      GEN. CHRISTIANSEN: If your Honor, please, that’s repetitious.

      MR. CHAFFIN: Well, I’d like to be able to --

      THE COURT: Sustain the objection.

Robinson alleges that he was entitled to explore the witness’ answer and the trial

court’s restriction on cross-examination was reversible error.

      It is without question that a witness may be cross-examined on any matter

relevant to issues in the case, including credibility. Tenn. R. Evid. 611(b). Counsel

should be afforded latitude on cross-examination to explore material issues, and the

                                            6
trial court, in this case, erred in unduly limiting counsel’s examination of the witness.

Counsel was entitled to explore the accuracy of the memory of the witness to assist

the jury in judging her credibility. Nevertheless, after a thorough review of the record,

we have determined that the error was harmless beyond a reasonable doubt. Tenn.

R. App. P. 36(b); Tenn. R. Crim. P. 52(a).

       Robinson next argues that it was error for the trial court to admit testimony from

Sims that, one week before the shooting, she terminated a pregnancy which resulted

from a relationship with him. He argues that such testimony was irrelevant to any

issue in the case. Moreover, due to the controversial nature of abortion, Robinson

asserts that the introduction of the testimony was highly prejudicial to his credibility.

       Prior to Sims’ testimony, Robinson’s counsel made a motion in limine to

exclude any testimony regarding the abortion. Apparently, the matter had been

mentioned in opening argument by the State and counsel sought to prevent its

introduction during the direct examination of Sims. 4 The trial court overruled the

motion, finding that the information would not be unduly prejudicial to Robinson.

       Bias, or the feelings that a witness has with regard to a party or issue, is

relevant for the trier of fact in assessing the weight to be given to a witness' testimony.

See Tenn. R. Evid. 616; State v. Williams, 827 S.W.2d 804, 808 (Tenn. Crim. App.

1991). Our supreme court recognized long ago “that witnesses are often as much

influenced in testifying by feelings of friendship or hostility to parties to the case as by

direct pecuniary interest in the result of the trial. . .” Creeping Bear v. State, 87 S.W.

653 (Tenn. 1905). The evidence of Sims’ pregnancy and later abortion was relevant

to the issue of her credibility.

       However, even relevant evidence may be excluded upon a showing that its

probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury. Tenn. R. Evid. 403; State v. Banks,



       4
           The open ing an d clos ing ar gum ents of co uns el we re no t trans cribe d for the re cord on ap pea l.

                                                          7
564 S.W.2d 947, 949 (Tenn. 1978). While the information may have been prejudicial

to the appellant, he has failed to show that its prejudicial effect substantially

outweighed its probative nature. Appellant is entitled to no relief.

       In Robinson’s final issue, he alleges the trial court failed to instruct the jury not

to listen to the audio portion of a videotape exhibit during deliberations. During the

trial, a videotape of the crime scene was played for the jury and narrated in open court

by Detective David Andrews of the Putnam County Sheriff’s Department. However,

the tape also included narration by Detective Andrews when the scene was filmed.

When the jury retired for deliberations with the exhibits, the trial court did not

specifically instruct it not to listen to the audio on that particular videotape.

       We note that counsel for appellant Robinson did not request that the trial court

give a limiting instruction and we consider the issue waived. Tenn. R. App. P. 36(a).

Furthermore, there is no indication that the jury actually watched the videotape during

deliberations, and if so, whether any members of the jury listened to the narration.

Finally, Robinson has failed to show how he was prejudiced, if the jury in fact did listen

to the narration. This issue is without merit.

       Having found no reversible error in the record before us, we affirm the

appellants’ convictions and the resulting sentences.



                                                   _______________________________
                                                   William M. Barker, Judge


CONCUR:


____________________________
Gary R. Wade, Presiding Judge


____________________________
Curwood Witt, Judge




                                              8
