         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                       April 8, 2008 Session

                   STATE OF TENNESSEE v. ANTHONY POOLE

                   Direct Appeal from the Criminal Court for Shelby County
                          No. 05-02290 James C. Beasley, Jr., Judge



                     No. W2007-00447-CCA-R3-CD - Filed April 14, 2009


A Shelby County jury convicted the appellant, Anthony Poole, of second degree murder, and the trial
court sentenced the appellant to twenty-four years in the Tennessee Department of Correction. This
appeal followed, with the appellant arguing that the trial court erred by (1) failing to instruct the jury
to disregard a hearsay statement by the victim; (2) excluding the testimony of a mental health expert;
(3) giving a sequential, “acquittal-first” instruction to the jury; and (4) imposing a twenty-four-year
sentence in contravention of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Upon
review, we modify the appellant’s sentence to nineteen years. In all other respects, we affirm the
judgment of the trial court.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
J.C. MCLIN , JJ., joined.

William D. Massey and Lorna S. McClusky, Memphis, Tennessee, for the appellant, Anthony Poole.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
William L. Gibbons, District Attorney General; and James Wax and David Pritchard, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                               OPINION

                                       I. Factual Background

        In March 2005, a Shelby County Grand Jury returned a three-count indictment charging the
appellant with one count of premeditated first degree murder and two counts of felony murder. The
State dismissed the felony murder counts prior to trial.

        At trial, Josie Lee Moss, the mother of the victim, Verline Fason, testified that the victim was
forty-eight years old at the time of her death on August 7, 2004. At that time, the victim lived at
5314 Piper’s Gap in Memphis with her seventeen-year-old daughter, Josie Dominique Fason. Moss
said that she and the victim usually talked several times a day. On the morning of August 7, 2004,
the victim called at 8:15 and asked if Moss had just called her. Moss told the victim that she had not.
The victim explained that she made the inquiry because “all the phones is off the hook.” As the
victim was talking to Moss, the telephone connection “cut off.”

         Moss became concerned when the victim did not call her back. She repeatedly attempted to
call the victim, but she kept getting a busy signal. At 9:10 a.m., Josie Dominique Fason called Moss.
Fason was screaming and crying, and she told Moss that the victim had been murdered. Fason told
Moss to come to the victim’s house. When Moss arrived, law enforcement officers were already
present and would not let Moss into the house.

        Josie Dominique Fason testified that in August 2004, she had graduated from high school
and was working as a catering assistant at St. Francis Hospital. Fason stated that a week or two prior
to the victim’s death, Fason had ended a one-and-a-half-year relationship with the appellant. Fason
opined that “[i]t was a pleasant breakup.” Fason stated that the victim had not approved of her
relationship with the appellant but that she had never been openly hostile to him. Fason said that
after the relationship ended, she did not keep anything that belonged to the appellant and the
appellant did not have anything belonging to her. Additionally, she said that after the breakup, the
appellant did not have permission from her or the victim to come to their home.

         Fason testified that when she left the house in the afternoon of August 6, 2004, the victim
was in her bedroom. Fason and her boyfriend, Detario Jones, spent the night with Jones’ aunt in
Fayette County. The next morning, Fason went home to get clothes for work. When Fason entered
the residence, she saw the victim lying on the floor, bound with a telephone cord and a “bungee
cord.” Fason said that the telephone cord and the bungee cord were from the victim’s house. Fason
explained that the victim delivered newspapers and that she used bungee cords to wrap the papers.
She usually kept the bungee cords in the garage. Upon discovering that the victim was dead, Fason
ran to the kitchen and called 911. She saw dried blood on the kitchen telephone and on a steak knife
that was on the kitchen floor. The knife was from the victim’s kitchen.

        Fason stated that the victim carried a gun in her purse for protection and that she also kept
a black, long-barreled BB gun in her dresser drawer.

       Fason acknowledged that she and the appellant had cared about each other and that he had
given her a diamond ring. She also acknowledged that during an argument, she threw the ring out
her bedroom window. She did not recall giving the appellant a ring.

        Officer Newton Morgan of the Memphis Police Department testified that on August 7, 2004,
he went to the victim’s residence to investigate a homicide. When he entered the victim’s home, the
victim’s body was on the floor. Her left arm was tied with a telephone cord to an overturned chair,
and her right arm and both wrists were tied with telephone cord to the staircase. Officer Morgan
stated that a bloody knife was found on the kitchen floor near the door to the carport.



                                                 -2-
       Officer Nathan Gathright of the Memphis Police Department testified that the appellant’s
fingerprints were on the handle of the knife found on the victim’s kitchen floor.

        Memphis Police Lieutenant Lezley Angela Currin testified that on August 8, 2004, she met
with the appellant at the homicide office. Lieutenant Currin recalled that the appellant had several
injuries on his arms and his hands. The injuries looked like cuts, scrapes, scratches, and punctures.
Lieutenant Currin asked the appellant how he had been injured, and he explained that he had fallen
in his backyard. The appellant denied any knowledge of the victim’s murder and said that he had
not been at the victim’s house since August 1, 2004.

        During the meeting, the appellant gave Lieutenant Currin consent to search his home. On
August 9, 2004, Lieutenant Currin, Officer Davison, and Sergeant Sims went to the residence the
appellant shared with his mother. While waiting for the appellant’s mother to arrive, the police
looked through a trash can that had been pushed to the curb. In the trash can, they found two t-shirts
that appeared to be stained with blood. One shirt was in a black, plastic trash bag, and the other shirt
was underneath it. One of the shirts had a cut on the lower front of the shirt and a puncture and
blood stains at the lower back of the shirt.

       After the appellant’s mother arrived, she allowed police to search the residence. In the
appellant’s bedroom, police found a pair of tennis shoes near the bed. A pair of shorts and a t-shirt
found in the closet had stains which appeared to be blood.

         Agent Qadriyyah Debnam with the Tennessee Bureau of Investigation Crime Laboratory
testified that the tennis shoes collected from the appellant’s home had spots of blood on them. The
appellant’s right shoe did not have enough blood for comparison, but the blood found on the
appellant’s left shoe tested positive for the victim’s blood. Agent Debnam said that the blood on the
kitchen telephone was the victim’s. Additionally, Agent Debnam said that the blood on the blue t-
shirt was a mixture; the major donor was the victim and the appellant could not be excluded as the
other donor. The blood on the tip of the knife found in the kitchen came from a mixture of multiple
donors. She said that the amount of blood on the tip of the knife was insufficient for a conclusive
comparison but that the appellant and the victim could not be excluded as donors. Agent Debnam
stated that the blood on the handle of the knife tested positive for the victim’s blood.

       Memphis Sergeant Barry Hanks testified that on August 9, 2004, after the appellant was
apprised of his rights and informed that his fingerprints were on the murder weapon, he gave a
statement to police implicating his involvement in the homicide. According to the appellant, the
victim’s stabbing was an accident. In his statement, the appellant said:

                       My momma picked me up Friday night and we went to the
               house. I smoked a couple of blunts by myself and fell asleep for a
               minute. Then as I woke up, it was like my conscious [sic] was
               talking to me telling me, my intentions were to go over there and give
               [Fason] the ring back and tell her that I understand that she didn’t
               want to be with me anymore and that she lost interest in me or
               whatever. I never told her that, this is what I was thinking, my

                                                  -3-
               conscious [sic] was telling me that. When I made it over there, she
               wasn’t there. But I still knocked on the door because her mother [the
               victim] was there and tell me her mother [sic] to let her know that I
               came up over there to give the ring. I couldn’t get my words out
               because she just went off on me because she had a real attitude
               problem with me. I ain’t never know that she didn’t like me, but I
               didn’t know until she started going off on me when I was at the door.
               Then she was saying about the little conversation we had a little while
               back, me, her, her daughter [Josie Dominique Fason] and her nephew
               Anthony had. They were telling me to support [Fason]. She was just
               saying that “you ain’t no good, you ain’t trying to help her[.]” Then
               after that she just went off. She went upstairs and got her purse. She
               came back down the steps. [I] knew she always have her gun on her
               or in her purse. I got real nervous then. She was still talking stuff
               and she was coming down. She then went in the kitchen and when
               she came back out she had a knife in her hand. She was telling me to
               get out and why she dislike me and all of that. Then she just swung
               the knife at me, and that is how I got the cut on my right finger. Then
               she swung at me once more. That is when the knife went in my left
               arm a little bit, but I grabbed the knife and then we started tossing and
               turning. Rolling back and forward on the floor. The knife was beside
               us but it was still in her possession. So I was trying to knock it out
               of her hand, I still had my hand on it trying to grab it. After that we
               were still rolling and I felt it as it was going inside of her. Then as it
               was coming out blood was all on my hand and on the knife. I was
               high, I don’t know what state of mind I was in. I was still shocked
               and still panicking about it because she stuck me and cut me. Then
               I stabbed her, but I didn’t really know what I was doing because I
               wasn’t in the right state of mind. When I realized what I done, she
               was still breathing and I just walked out of the house. I was scared
               to call the police because I had my hands on the knife and you know
               how people think, they may have thought that I did it intentionally.


Sergeant Hanks said that the appellant did not mention tying the victim to the chair and staircase.

        Dr. Amy McMaster testified that she performed an autopsy on the victim. Dr. McMaster
recalled that the victim was bound with at least three different ligatures that were secured by
“multiple loops or knots.” The victim had at least thirty-seven “sharp force injuries” to her body,
including thirteen stab wounds and two incised wounds to the neck. One of the stab wounds to the
neck injured the victim’s carotid artery, which could cause a person to bleed to death fairly rapidly.
A stab wound to the left breast extended five inches into the body and injured the heart and lung.
Dr. McMaster opined that a significant amount of force was required to inflict that wound, which
was also fatal. Additionally, the victim had two stab wounds to the abdomen and six stab wounds
to the back. One of the stab wounds to the lower back penetrated approximately four inches. The

                                                  -4-
victim also had six stab wounds on her arms and three stab wounds on her legs. Dr. McMaster
testified that the victim had several defensive wounds on her hands and some “small punctate
wounds” that were caused by “the point of a knife or another type of mechanism.”

        At the conclusion of the trial, the jury acquitted the appellant of first degree murder, but
found him guilty of the lesser-included offense of second degree murder, a Class A felony. At the
sentencing hearing, the trial court imposed a sentence of twenty-four years. On appeal, the appellant
raises the following issues for our review:

                   I. Did the trial court commit plain error by failing to instruct the jury
                   to disregard the testimony of Josie Moss about the decedent telling
                   her that her phones were off the hook?

                   II. Did the trial court err by excluding the proferred testimony of Dr.
                   Angelillo?

                   III. Did the trial court err by directing the jury to proceed
                   sequentially in its consideration of the principal charge and the lesser
                   included offenses?

                   IV. Did the trial court err by enhancing the [appellant’s] sentence by
                   the factor of 9 years when it sentenced the [appellant] to a term of 24
                   years?

We will address these issues in an order different than that in which they were raised.

                                                      II. Analysis

                                                 A. Expert Testimony

         First, we will address the appellant’s contention that the trial court erred in excluding expert
testimony on the issue of the appellant’s diminished capacity. On Monday October 9, 2006, the day
of trial, the State informed the trial court that the defense had just given the State a written report of
a psychological evaluation of the appellant by Dr. Joseph C. Angelillo. The State objected on the
basis of Tennessee Rule of Criminal Procedure 12.2, arguing that the defense did not file a notice
regarding the use of expert testimony about the appellant’s mental state.1 Defense counsel stated that


         1
             Tennessee Rule of Criminal Procedure 12.2(a) and (b) provides that a defendant who intends to assert a
defense of insanity at the time of the alleged crime or who intends to introduce expert testimony relating to a mental
disease or defect or any other mental condition of the defendant bearing on the issue of his or her guilt shall so notify
the district attorney general in writing and file a copy of the notice with the clerk. If a defendant fails to provide notice,
the trial court may exclude the testimony of any expert witness offered by the defendant on the issue of the defendant’s
mental condition. Tenn. R. Crim. P. 12.2(d).

                                                                                                               (continued...)

                                                             -5-
the evaluation was provided to the State at the “earliest opportunity.” Counsel explained that a
summary or a rough draft of the evaluation had been faxed to counsel’s office sometime after the
office closed on the Friday before trial. Dr. Angelillo’s final report was submitted to defense counsel
on the morning of trial. Counsel argued that “[t]he remedy [for the lateness of the notice] is
continuance, not exclusion.”

        The trial court inquired as to the relevance of the evaluation. Defense counsel said, “[W]e
[are] not going to use this as the defense. I mean, we’re not saying, he did not do this because [he]
did not have the mental capacity to do so.” Instead, defense counsel said that they wanted “to call
Dr. Angelillo so that the jury would have a better understanding of [the appellant] and the way he
processes information, but it would not be an insanity defense. . . . It . . . would show how he thinks
things through so the jury could appreciate any premeditation, any voluntary manslaughter type
information that would be out there.”

       When the trial court requested further clarification of the purpose of the testimony, the
following colloquy occurred:

                          The Court: So this goes to his mental state. It’s a mental
                   defense.

                           [Defense Counsel]: Yes, it is in that respect. It’s not one of
                   the ones that just clears the deck for you like insanity, and I thought
                   maybe that’s what he was referring to. But no – yes, it definitely
                   goes to his mental state, his mental ability.

                            The Court: His ability to form the requisite mental intent.

                          [Defense Counsel]: No. I think that goes to insanity. When
                   you put it like that, that is saying, I have an insanity defense. . . .

                            The Court: There’s a total difference in insanity and the
                   ability to make a mental decision based upon mental defect or mental
                   illness or mental problems short of insanity.

                         [Defense Counsel]: That’s true.           It doesn’t have to be
                   completely insane. . . .

                           Now, as far as a right to a fair trial, he has a right to put on a
                   defense. And I think that what he was experiencing that day and his
                   responses are extremely relevant and important for this jury to have
                   as far as our defense.


       1
           (...continued)



                                                      -6-
                        I mean that is the bulk of our defense. . . .

         The trial court noted that the appellant’s trial had been scheduled to begin on January 18,
2006, before being rescheduled for July 10, 2006. The case was then again rescheduled to begin on
October 9, 2006. The court further noted that there had been “numerous motions” in the case. The
court said, “We’ve been in court many, many, many times on this. And if there were an issue such
as this, there’s been ample time to have that matter resolved, not the week, even three or four days
before trial.” The court complained that although there was ample time for defense counsel to have
forwarded a mental defense, “for the first time I’m being told that there’s an issue about a mental
defense. On trial date.” Therefore, the court found that defense counsel had violated Tennessee
Rule of Criminal Procedure 12.2 and granted the State’s motion to exclude the proof at trial.
However, the court allowed the defense to make an offer of proof regarding the doctor’s proposed
testimony.

        During the offer of proof, Dr. Angelillo, a clinical psychologist, testified that defense counsel
first contacted him on August 7, 2006, about evaluating the appellant. Dr. Angelillo first
interviewed the appellant on August 26, 2006, with a second visit on September 15, 2006. In
evaluating the appellant, Dr. Angelillo asked the appellant about his background and administered
several tests to the appellant.

       Dr. Angelillo stated that during the cognitive tests he administered, he had to explain too
many of the questions and “worr[ied] about invalidating the test. That’s not the way it’s supposed
to be given.” Dr. Angelillo testified that he would have liked to conduct further testing of the
appellant, but he did not have any more time. He explained:

                        Right now, what I’ve gotten, as I stated, is I’ve got cognitive
                variables, and I’m drawing from those. I think that those are valid
                and consistent. But I don’t have a whole lot. I’ve got nothing. No
                data at all. And in the interest of time, I didn’t – I didn’t have any
                more time.

         However, Dr. Angelillo determined that the appellant’s “cognitive skills are poorly
developed.” Testing revealed that the appellant had an IQ of 69. Dr. Angelillo said that he
administered the Woodcock-Johnson achievement test to the appellant. The doctor explained that
the test “actually give[s] you age levels. And the scores were in the area of nine to eleven. I think
his highest one was twelve years old . . . as far as age range.” Dr. Angelillo said that the appellant’s
“responses were rather immature developmentally,” his thinking was “quite concrete,” and “[h]e has
trouble entertaining alternatives as to how to solve a problem.” Despite the appellant’s low IQ score,
Dr. Angelillo opined that the appellant was not retarded.

       Dr. Angelillo said that because of the appellant’s level of cognitive functioning, “[t]hings that
are very important to thinking beyond a concrete here and now level . . . are all significantly
impaired.” He further said,



                                                  -7-
                       What it means is when something happens, is that we would
               hopefully allow ourselves or be given the time to think about what it
               takes to solve the problem, and if that answer is not or that strategy
               is not at hand, to entertain other possibilities as to what might –
               strategy might be used to solve a problem as opposed to responding
               reflexively, impulsively . . . .

                       So a person who sees or – excuse me. Not sees. But who can
               find but one way to solve a problem, if they’re backed into a corner,
               they come out fighting let’s say.

                      And every time they do it, they come out fighting. Would be
               a person who has trouble with entertaining alternatives.

       Dr. Angelillo said that he had examined the crime scene photographs and opined that the
scene was “very disorganized.” He said that

               according to researchers that publish on this, . . . which I’ve attended
               workshops and have read, . . . the characteristics of a disorganized
               crime[] usually entail very little planning, if any. There’s no or little
               attempt to cover things up. There is – I mean basically – that
               something occurred at that time. And because of their poor cognitive
               skills and because – because of the stress level, they don’t necessarily
               think as clearly as they would have. And that’s not necessarily that
               clear to begin with.

         When defense counsel asked Dr. Angelillo how the appellant would have reacted if he had
gone to the victim’s house without the intent to commit a crime but was then attacked, Dr. Angelillo
responded, “I don’t think I can answer that with . . . a great deal of certainty.” However, based upon
test results, Dr. Angelillo said, “I am more concerned there with his responding when he is frustrated
because he doesn’t have a way out of a situation.” Dr. Angelillo testified that in stressful situations,
“I would speculate that his coping skills or his ability to handle that would be compromised.”

       The court questioned Dr. Angelillo regarding his assessment of the appellant as follows:

                      The Court: . . . [T]he way I read your report, Doctor . . . it
               appeared to me that there were a lot of things in here that you were
               looking for, but you were still at a speculative – it could be this. It
               could be that.

                       [Dr. Angelillo]: Yes, Judge.

                     The Court: It was consistent with this, but it could be
               something else.


                                                  -8-
                       [Dr. Angelillo]: Yes, Judge.

                      The Court: Okay. So we don’t really know exactly what the
               problems are. There is some potential for what they could be, but we
               don’t know exactly what they are.

                     [Dr. Angelillo]: Yeah, Your Honor . . . . I’m able to give
               some statement about personality variables to – to – because
               sometimes that can be very consistent. Sometimes not. . . .

        Additionally, the trial court pointedly questioned the doctor regarding his specific diagnosis
of the appellant and the effect, if any, on his ability to form a mental state:

                      The Court: Under the law, . . . do you find mental disease or
               mental defect – the difference in disease or defect. Disease meaning,
               would that be like . . . .

                       [Dr. Angelillo]: It’s schizophrenia.

                       ....

                      [Dr. Angelillo]: I think . . . mental defect, historically, Your
               Honor, has been retardation.

                       ....

                      But typically, although it’s a shady area over history, I take it
               to mean – and I think that most people do, is that there is a mental
               defect meaning he’s – he’s – his I.Q. is – he’s mentally retarded, for
               example. . . .

                       The Court: Okay. Well, and then in this – and what is the
               level that qualifies for retardation?

                       [Dr. Angelillo]: Sixty-nine and below.

                       The Court: So you’re right there on the line?

                       [Dr. Angelillo]: Yes. But I don’t think he’s retarded.

                      You also have to have pretty significant functional deficits.
               And [the appellant] is able to find his way around. . . .

                       ....


                                                 -9-
                        The Court: . . . But as far as disease and defect. I mean,
               defect meaning, you know, would you look at this I.Q. of sixty-nine
               and . . . you’re not willing to drop and say that he meets retardation
               or that he’s at that level?

                       [Dr. Angelillo]: No, Your Honor.

                       ....

                       He’s got significant cognitive deficit. The term defect when
               it has been applied, has been if he was retarded. In my opinion, then
               it would be easy to say, yes, he’s got a defect.

                       I think that he’s got significant impairment.

                       ....

                       I can tell you that . . . [the appellant] does not have a learning
               disability. . . .

                       ....

                      The answer is, there is very, very significant cognitive
               impairment. The defect would be – I’m sure somebody could sit here
               and argue and say, well, it’s not a defect because he’s not retarded,
               and I would say, well, of course, it is.

                       ....

                       . . . [W]hether the word’s defect or problem, it’s there.

                       Impairment. He’s not retarded.

                       The Court: Well, I guess the next part of the question is, does
               that mean he lacks the capacity to form the mental state required to
               constitute an offen[s]e?

                          [Dr. Angelillo]: Do I think so? No. I don’t think so. I think
               . . . it impacts it. . . .

        Following the doctor’s testimony, defense counsel argued that without Dr. Angelillo’s
testimony, the jury would not “understand that there’s somebody from nine to eleven years old stuck
inside [the appellant’s body] that went there that day.” Counsel told the trial court that



                                                 -10-
               what we need from this doctor is the appreciation of who he is so that
               when he is confronted by someone and it is a volatile situation and it
               is a violent situation not of his causing, but the threat of violence is
               suddenly present, that he would engage – he would be engaged by
               this person and not quickly disengage, but continue on, like tussle
               with the person, get into an argument with them, fight over the knife,
               try to get the knife from her.

Counsel said that the doctor would show that although someone with a “more mature appreciation
of the circumstances” would leave to avoid a violent situation, the appellant would not. Defense
counsel argued that such testimony “really goes to the jury’s appreciation of how one of the lesser
included offenses could certainly be the correct crime found here.” Defense counsel specifically
stated, “I’m not saying he lacks that ability [to form a mental state]. . . . I’m saying that it is
impaired.”

       Following the offer of proof, the trial court again considered the admissibility of Dr.
Angelillo’s testimony. The trial court said:

               [T]o . . . ask the doctor, these things that you have found, is that
               consistent with – does that impact . . . what he did out there, how he
               reacted out there.

               . . . I don’t think under the law that’s permissible based on what the
               doctor’s testified to. And if that’s where you’re wanting to go with
               this because that’s the way the report is written, I’m not inclined to
               allow that.

                       Now, if he’s simply going to get up and testify that he gave
               him some tests and he showed an IQ of sixty-nine and a learning level
               of third, fourth, and fifth grade, I might be inclined to allow that.

The court further stated that testimony that the appellant might act a certain way because of the
impairment was speculative and not relevant. Therefore, the trial court denied the admissibility of
Dr. Angelillo’s testimony, “not because it violates Rule 12.2, but because I find that it’s not
relevant.” The court was particularly persuaded to exclude the doctor’s testimony because he did
not say that the appellant was incapable of forming the requisite mental state.

        Ordinarily, expert testimony regarding a defendant’s capacity or lack of capacity to form the
mental state required for the commission of an offense is admissible if it satisfies “general relevancy
standards as well as the evidentiary rules which specifically govern expert testimony.” State v. Hall,
958 S.W.2d 679, 689 (Tenn. 1997). In this regard, Tennessee Rule of Evidence 401 provides that
“‘[r]elevant evidence’ means evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than it would
be without the evidence.” However, even relevant evidence may be excluded if its probative value
is “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

                                                 -11-
the jury.” Tenn. R. Evid. 403. Further, Tennessee Rule of Evidence 702 requires that expert
testimony “substantially assist the trier of fact to understand the evidence or to determine a fact in
issue,” and Rule 703 requires that the facts or data underlying the expert’s opinion be trustworthy.
A trial court’s application of these rules to exclude expert testimony will not be reversed on appeal
absent an abuse of discretion. State v. Edison, 9 S.W.3d 75, 77 (Tenn. 1999).

        Under Tennessee law, evidence of a mental disease or defect that does not rise to the level
of an insanity defense is nevertheless admissible to negate elements of specific intent. State v.
Phipps, 883 S.W.2d 138, 149 (Tenn. Crim. App. 1994). In Hall, our supreme court explained
“diminished capacity” as follows:

               [D]iminished capacity is not considered a justification or excuse for
               a crime, but rather an attempt to prove that the defendant, incapable
               of the requisite intent of the crime charged, is innocent of that crime
               but most likely guilty of a lesser included offense. Thus, a defendant
               claiming diminished capacity contemplates full responsibility, but
               only for the crime actually committed. In other words, “diminished
               capacity” is actually a defendant’s presentation of expert, psychiatric
               evidence aimed at negating the requisite culpable mental state.

958 S.W.2d at 688 (citations omitted). However, “such evidence should not be proffered as proof
of ‘diminished capacity.’ Instead, such evidence should be presented to the trial court as relevant
to negate the existence of the culpable mental state required to establish the criminal offense for
which the defendant is being tried.” Id. at 690. Put another way, for expert testimony regarding a
defendant’s mental state to be admissible, the expert must testify that (1) the defendant has a mental
disease or defect and that (2) because of the mental disease or defect, the defendant lacks the
capacity to form the requisite mens rea. See Hall, 958 S.W.2d at 689-91.

       In Hall, our supreme court cautioned that the expert testimony

               must demonstrate that the defendant’s inability to form the requisite
               culpable mental state was the product of a mental disease or defect,
               not just a particular emotional state or mental condition. It is the
               showing of a lack of capacity to form the requisite culpable mental
               intent that is central to evaluating the admissibility of expert . . .
               testimony on the issue. . . .

                       ....

               . . . While evidence that a particular defendant, because of a mental
               disease or defect, lacks the capacity to form the requisite intent is
               admissible in Tennessee, expert opinion testimony about the typical
               reactions of certain personality types is not relevant to the capacity of
               the particular defendant on trial. Moreover, proof of personality type
               is not relevant to a defendant’s capacity to form the mental intent.

                                                 -12-
Hall, 958 S.W.2d at 691 (citation omitted); see also State v. Faulkner, 154 S.W.3d 48, 56-57 (Tenn.
2005). Further, the Hall court explained:

               “Society is comprised of myriad individuals with diverse
               personalities and temperaments who are jointly and severally bound
               by society’s common codes of conduct and responsibility. The mere
               fact that one is more apt, by personality type, to become emotional in
               response to a particular stimulus does not provide a means for that
               person to be absolved from the same responsibility to which the law
               holds another who might be less apt to respond as passionately to the
               same stimulus. If it did, then each person would be the law unto him
               or herself based solely upon his or her particular personality
               makeup.”

Hall, 958 S.W.2d at 691-92 (quoting State v. Leroy Hall, Jr., No. 03C01-9303-CR-00065, 1996 WL
740822, at *18 (Tenn. Crim. App. at Knoxville, Dec. 30, 1996)).

        Recently, in State v. Bradley Ferrell, __ S.W.3d __, No. M2005-02552-SC-R11-CD, 2009
WL 200282 (Tenn. at Nashville, Jan. 29, 2009), our supreme court discussed the ruling in Hall. The
Ferrell court clarified that the “decision in Hall established that the [mental health] testimony is
properly admissible if it satisfies the relevancy and expert testimony provisions in the Tennessee
Rules of Evidence and its content indicates that a defendant lacked the capacity to form the required
mental state for an offense . . . .” Id. at *6. Our supreme court explained that the Hall holding “was
based upon the broader legal principle that ‘expert testimony relevant to negating intent is admissible
in Tennessee even though diminished capacity is not a defense.’” Id. (quoting Hall, 958 S.W.2d at
691). The court further explained that “Hall recognized that a defendant may negate an element of
the offense as a defense to the prosecution.” Id. at *7.

         In the instant case, the trial court noted that Dr. Angelillo “said that [the appellant] had
significant cognitive immaturity, but he did not say that that caused him an inability to form a mental
state.” Therefore, the court ruled that “the doctor’s testimony is not relevant as to the mental state
of [the appellant] at the time of the commission of the offense.” On appeal, the appellant
acknowledges that at the time of his trial, Tennessee law allowed expert testimony as to a
defendant’s mental disease or defect to be admissible at trial only if the expert testified that the
defendant had a mental disease or defect and because of the mental disease or defect “the defendant’s
ability to formulate the particular culpable mental state [was negated]. . . .” However, the appellant
contends “that the holdings of the definitive and leading cases dealing with this issue are so narrowly
decided as to impair the right of the [appellant] to a trial by jury,” thereby violating his due process
right to present a defense.

       The appellant correctly states that a criminal defendant has a right to present witnesses in his
defense. State v. Brown, 29 S.W.3d 427, 432 (Tenn. 2000). However, our supreme court has
explained:



                                                 -13-
                Although “[t]he right to present witnesses is of critical importance .
                . . it is not absolute. In appropriate cases, the right must yield to other
                legitimate interests in the criminal trial process.” Specifically, “[i]n
                the exercise of this right, the accused, as is required of the State, must
                comply with established rules of procedure and evidence designed to
                assure both fairness and reliability in the ascertainment of guilt and
                innocence.”

Id. (quoting Chambers v. Mississippi, 410 U.S. 284, 295, 302, 93 S. Ct. 1038, 1046, 1049 (1973)).
Even considering the accused’s right to present a defense, the testimony offered by the witness must
be relevant, reliable, and material.        See id. at 434; State v. Frank Lee Tate, No.
W2004-01041-CCA-R3-CD, 2007 WL 570555, at *12 (Tenn. Crim. App. at Jackson, Feb. 23, 2007),
perm. to appeal denied, (Tenn. 2007).

       The Hall/Faulkner test was designed to ensure that the testimony regarding a defendant’s
mental state is relevant to negate the existence of the requisite mental state. Thus, the test
necessarily takes into consideration the concerns embodied by a defendant’s due process rights to
present a defense. Our supreme court’s recent decision in Ferrell further affirms that the Hall
holding requires that the expert testimony is admissible if it indicates that the defendant lacked the
capacity to form the requisite mental state. See Ferrell, __ S.W.3d __, No. M2005-02552-SC-R11-
CD, 2009 WL 200282, at *7.

        In the instant case, Dr. Angelillo’s testimony was not offered to negate the requisite mental
state, but to show that the appellant’s cognitive impairments impacted his ability to react
appropriately in certain situations. Dr. Angelillo explained his assessment, stating that he was
concerned with the appellant “responding when he is frustrated because he doesn’t have a way out
of the situation. . . . . In this case, for [the appellant] to respond, in a frustrated perhaps angry way,
I think would be increased, as compared to the, quote, average person.”

        As we previously noted, our supreme court has cautioned that

                “The mere fact that one is more apt, by personality type, to become
                emotional in response to a particular stimulus does not provide a
                means for that person to be absolved from the same responsibility to
                which the law holds another who might be less apt to respond as
                passionately to the same stimulus.”

Hall, 958 S.W.2d at 692 (quoting Hall, No. 03C01-9303-CR-00065, 1996 WL 740822, at *18). Dr.
Angelillo’s testimony basically reflected that the appellant was easily frustrated and likely to act
inappropriately in stressful situations. In Faulkner, our supreme court

                “emphasize[d] that the psychiatric testimony must demonstrate that
                the defendant’s inability to form the requisite culpable mental state
                was the product of a mental disease or defect, not just a particular


                                                   -14-
                emotional state or mental condition. It is the showing of a lack of
                capacity to form the requisite culpable mental intent that is central to
                evaluating the admissibility of expert . . . testimony on the issue.”

Faulkner, 154 S.W.3d at 56-57 (quoting Hall, 958 at 690). Therefore, we conclude that the trial
court correctly ruled that Dr. Angelillo’s proposed testimony was irrelevant and inadmissible.

                                        B. Curative Instruction

        The appellant complains that the trial court “committed plain error by failing to instruct the
jury to disregard the testimony of Josie Moss about the [victim] telling her that her phones were off
the hook.”

        At trial, Moss testified that on the morning of the victim’s death, the victim told Moss that
“all the phones is off the hook.” Moss said that as they were talking, the victim’s telephone “cut
off.” Following this testimony, defense counsel objected to Moss’ testimony on the basis that it was
hearsay and the victim could not be cross-examined. The State responded that it would move to
another question. The trial court sustained the objection. No curative instruction was requested or
given.

       On appeal, the appellant concedes that he did not request a curative instruction. Ordinarily,
the right to a curative instruction is waived when such instruction is not requested. State v.
McPherson, 882 S.W.2d 365, 371 (Tenn. Crim. App. 1994); see also Tenn. R. App. P. 36(a).
Regardless, the appellant contends that the trial court’s failure to give a curative instruction was plain
error.

       Tennessee Rule of Criminal Procedure 52(b) provides that this court may address “[a]n error
which has affected the substantial rights of an accused . . . at any time, even though not raised in the
motion for a new trial . . . where necessary to do substantial justice.” See also Tenn. R. Evid. 103(d).
We may only consider an issue as plain error when all five of the following factors are met:

                a) the record must clearly establish what occurred in the trial court;
                b) a clear and unequivocal rule of law must have been breached; c) a
                substantial right of the accused must have been adversely affected; d)
                the accused did not waive the issue for tactical reasons; and e)
                consideration of the error is “necessary to do substantial justice.”

State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (footnotes omitted); see also
State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000) (adopting the Adkisson test for determining plain
error). Furthermore, the “‘“plain error” must be of such a great magnitude that it probably changed
the outcome of the trial.’” Adkisson, 899 S.W.2d at 642 (quoting United States v. Kerley, 838 F.2d
932, 937 (7th Cir. 1988)).




                                                  -15-
       The appellant contends that the lack of a curative instruction, coupled with the State’s closing
argument, so prejudiced the appellant as to render the lack of a curative instruction plain error. The
appellant maintains that

                        [d]uring its closing argument, the prosecution argued
                forcefully that the [appellant] was not invited into [the victim’s] home
                when he knocked on the door; but, rather, that he entered without
                permission as an intruder. . . . Thus, at the outset of the trial below,
                this seed of innuendo and speculation that the [appellant] was an
                intruder unlawfully in [the victim’s] home from the beginning was
                sowed. The manner in which this was accomplished was the
                deliberate injection of this incompetent hearsay statement by Ms[.]
                Moss about what [the victim] allegedly told her about phones being
                off the hook.

        Our review of the record reveals that in closing argument, the State contended that the victim
had not been safe in her own home and that she had the “right to be in her own home without
unwanted intruders.” The State also argued that after breaking up with Fason, the appellant was no
longer welcome at the victim’s home nor did he have a legitimate reason to be there. The State
contended that the appellant brutally attacked and tied up the victim. The State maintained that the
physical proof did not comport with the appellant’s statement of events, especially given the
brutality and force require to inflict some of the wounds. The State mentioned that the victim’s
mother was not being disingenuous when she testified that she was concerned when “she thought
the phone was off the hook because she kept calling and nobody was there[.]”

        We conclude that all of the factors for finding plain error are not present. First, there is
nothing in the record to indicate that the appellant’s failure to request a curative instruction was not
tactical to avoid calling attention to the contested testimony. Moreover, our reading of the State’s
closing argument reveals that the State did not improperly rely on the contested statement. Further,
in our view, the trial court’s failure to sua sponte give a curative instruction would have had
minimal, if any, impact on the trial. Additionally, the jury’s verdict of second degree murder
indicates that the jury did not believe the State’s theory that the appellant went to the victim’s home
with the intention of killing the victim, further demonstrating that correction of the alleged error is
not necessary to do substantial justice. Therefore, we conclude that the trial court’s failure to sua
sponte give a curative instruction was not plain error.

                                       C. Sequential Instructions

        The appellant next complains that the trial court instructed the jury that it must acquit the
appellant of the greater, charged offense before considering lesser-included offenses. In the instant
case, the trial court instructed the jury that they were to first inquire as to the appellant’s guilt of the
charged offense of first degree murder. The instruction provided that if the jury found the appellant
guilty of first degree murder, they were to return a verdict of guilt. The instructions further provided:



                                                   -16-
                      If you find the [appellant] not guilty of this offense or if you
               have a reasonable doubt as to his guilt, you will acquit him thereof
               and then proceed to inquire whether he is guilty of murder in the
               second degree as included in the first count of the indictment.

The trial court continued to give “acquittal-first” instructions throughout the remainder of the lesser-
included offense instructions. The appellant contends that this procedure precludes the jury from
considering lesser-included offenses, thereby effectively denying the appellant his right to trial by
jury.

        Since the inception of the instant appeal, our supreme court has explicitly addressed the
constitutionality of sequential, acquittal-first jury instructions. See State v. Davis, 266 S.W.3d 896
(Tenn. 2008). In Davis, our supreme court held that

               while a defendant is entitled by our constitution to have the jury
               charged on all offenses encompassed within the indictment and
               supported by the proof, our constitution does not go so far as to
               mandate the order in which those offenses are considered. Our
               constitution also does not prohibit the requirement that a jury first
               reach a unanimous verdict of acquittal with respect to a greater
               offense before it proceeds to consider a defendant’s guilt of a lesser-
               included offense.

Id. at 905. In sum, our supreme court determined that an acquittal-first instruction does not offend
a defendant’s right to a jury trial under the Tennessee Constitution. Id. Therefore, this issue is
without merit.

                                            D. Sentencing

        The final issue concerns the sentence imposed by the trial court. The appellant maintains that
the record does not clearly reflect whether the trial court applied the sentencing statutes in effect at
the time of the commission of the offense or the 2005 amendments to the sentencing statutes. The
appellant argues that the pre-2005 sentencing statutes should have been applied in the instant case;
therefore, the trial court violated the dictates of Blakely v. Washington, 542 U.S. 296, 124 S. Ct.
2531 (2004), by enhancing his sentence using factors not reflected by the jury verdict.

        Appellate review of the length, range or manner of service of a sentence is de novo.
See Tenn. Code Ann. § 40-35-401(d) (2006). In conducting its de novo review, this court considers
the following factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2)
the presentence report; (3) the principles of sentencing and arguments as to sentencing alternatives;
(4) the nature and characteristics of the criminal conduct involved; (5) evidence and information
offered by the parties on enhancement and mitigating factors; (6) any statistical information provided
by the administrative office of the courts as to sentencing practices for similar offenses in Tennessee;
and (7) any statement by the appellant in his own behalf. See Tenn. Code Ann. §§ 40-35-102, -103,

                                                 -17-
-210 (2006); see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden is on the
appellant to demonstrate the impropriety of his sentence(s). See Tenn. Code Ann. § 40-35-401,
Sentencing Commission Comments. Moreover, if the record reveals that the trial court adequately
considered sentencing principles and all relevant facts and circumstances, this court will accord the
trial court’s determinations a presumption of correctness. Id. at (d); Ashby, 823 S.W.2d at 169.

        The instant crime was committed on August 7, 2004. For offenses committed prior to June
7, 2005, sentencing was governed by prior law, which provided for “presumptive” sentences. The
presumptive sentence was the midpoint in the range for Class A felonies and the minimum in the
range for all remaining felonies. See Tenn. Code Ann. § 40-35-210(c), (d) (2003). Trial courts then
were to enhance and/or mitigate a defendant’s sentence based upon the application of enhancement
and mitigating factors. See Tenn. Code Ann. § 40-35-210(d), (e) (2003).

        In Blakely, the United States Supreme Court concluded that the “‘statutory maximum’ for
Apprendi[ v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000),] purposes is the maximum sentence
a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant.” Blakely, 542 at 303, 124 S. Ct. at 2537; see also Gomez v. Tennessee, 549 U.S. 1190,
127 S. Ct. 1209 (2007). In response to Blakely, our legislature amended Tennessee’s sentencing
scheme and eliminated presumptive sentences. The Compiler’s Notes to Tennessee Code Annotated
section 40-35-210 (2006) provide that

                for defendants who are sentenced after June 7, 2005, for offenses
                committed on or after July 1, 1982, the defendant may elect to be
                sentenced under the provisions of the act by executing a waiver of
                such defendant’s ex post facto protections. Upon executing such a
                waiver, all provisions of the act shall apply to the defendant.

       The appellant correctly notes that the trial court did not explicitly state whether it was
sentencing the appellant pursuant to the prior sentencing statute or the new sentencing provisions.
However, because the record does not reflect that the appellant executed a written waiver of his ex
post facto protections, the trial court was required to sentence the appellant under the prior
sentencing law. See State v. Jarvis Harris, No. W2006-02234-CCA-R3-CD, 2007 WL 2409676, at
*11 (Tenn. Crim. App. at Jackson, Aug. 24, 2007), perm. to appeal denied, (Tenn. 2008).

        In the instant case, the trial court found that the appellant treated the victim with exceptional
cruelty during the commission of the offense, specifically noting that the victim suffered a
significant number of wounds and that the “punctate” wounds indicated that the victim had been
tortured. See Tenn. Code Ann. § 40-3.5-114(5) (2006). Under Blakely, that factor may not be used
absent a finding by a jury or an admission by the appellant. There was no jury finding or admission
in this case. Therefore, given that the appellant had no prior convictions, the court was not
authorized to impose a sentence higher than the presumptive minimum.

      Because the appellant’s conviction, second degree murder, is a Class A felony, the
presumptive sentence was twenty years. Tenn. Code Ann. §§ 40-35-112(a)(1), 40-35-210(c) (2003).


                                                  -18-
The court stated that the crime warranted the maximum available sentence. However, the trial court
determined that under the catch-all provision of Tennessee Code Annotated section 40-35-113(13),
Dr. Angelillo’s testimony concerning the appellant’s “mental situation and conditions” should apply
to mitigate the sentence by one year. Thus, we conclude that the presumptive sentence in the instant
case, twenty years, should be reduced one year for a sentence of nineteen years.

                                          III. Conclusion

         Based upon the foregoing, we conclude that the trial court did not err in excluding the expert
testimony, failing to instruct the jury to disregard a hearsay statement, or giving a sequential,
“acquittal-first” instruction to the jury. However, we find that the trial court erred by imposing a
twenty-four-year sentence, therefore, we modify the sentence to nineteen years and remand for the
entry of a judgment reflecting the modified sentence. In all other respects, we affirm the judgment
of the trial court.


                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




                                                 -19-
