         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                         JANUARY SESSION, 1997




STATE OF TENNESSEE,              )   C.C.A. NO. 02C01-9511-CR-00343
                                 )
      Appellee,                  )
                                 )   SHELBY COUNTY
                                 )
V.                               )
                                 )   HON. ARTHUR T. BENNETT,
TERRENCE L. DAVIS,               )   JUDGE
                                 )
      Appe llant.                )   (FIRST DEGREE MURDER)




FOR THE APPELLANT:                   FOR THE APPELLEE:

LESL IE I. BALL IN                   JOHN KNOX WALKUP
Attorney at Law                      Attorney General & Reporter

MARK A. MESLER                       WILLIAM DAVID BRIDGERS
Attorney at Law                      Assistant Attorney General
Ballin, Ballin & Fishman, P.C.       450 James Robertson Parkway
200 Jefferson Avenue                 Nashville, TN 37243-0493
Suite 1250
Memphis, TN 38103                    JOH N W. P IERO TTI
                                     District Attorney General

                                     THOMAS D. HENDERSON
                                     Assistant District Attorney General

                                     JENNIFER NICHOLS
                                     Assistant District Attorney General
                                     201 Poplar Avenue, Suite 301
                                     Memphis, TN 38103-1947



OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                  OPINION

       The Defendant, Terrence Davis, appeals as of right pursuant to Rule 3 of

the Tenn essee Rules o f Appella te Procedure. He was convicted by a jury of first

degree murde r in the Sh elby Co unty Crim inal Cou rt, and sen tenced to life

imprisonm ent.     In addition to challenging the sufficiency of the evidence,

Defenda nt argues that the trial court comm itted reversible error by: (1) refusing

to suppress the statement given by Defendant on November 8, 1993; (2) refusing

to permit Defendant to introduce into evidenc e a lette r written by the v ictim’s

mother; (3) allowing certain photographs of the victim to be adm itted into

evidence; (4) allowing opinion te stimony of a no n-expert witness regarding

discipline to be admitted into evidence; (5) requiring Defendant to provide to the

State an investigative report prepared by a defense witness; and (6)

administering the oath to the grand jury foreperson in the jury’s presence during

the trial. W e affirm the judgm ent of the tria l court.




                     I.   SUFFICIENCY OF THE EVIDENCE



       Whenever the sufficiency of the evidence at trial is questioned, the

standard is whether, after reviewing the evidence in th e light most favo rable to

the prosecution, an y rational trier of fact could have found the essen tial eleme nts

of the crime beyond a reaso nable d oubt. Jack son v. V irginia, 433 U.S. 307, 319

(1979).   This court may not reweigh or reevaluate the evidence.             State v.

Cabbage, 571 S.W .2d 832 , 835 (T enn. 19 78). On appea l, the State is entitled



                                           -2-
to the strong est legitimate view of the evidence and all inferences therefrom.

Cabbage, 571 S.W .2d at 835 .



      Questions concerning the credibility of the witnesses, the weight and value

to be given the evidence, as well as all factual issues raised by the evidence, are

resolved by the trier of fact, n ot this cou rt. State v. Pappas, 754 S.W.2d 620, 623

(Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 198 7). A jury verdic t

approved by the trial judge accredits the State’s witnesses and res olves all

conflicts in favor of the State. State v. Grace, 493 S.W .2d 474, 476 (Tenn. 197 3).

Because a verdict of guilt removes the presumption of innocence and replaces

it with a pres umptio n of guilt, the accused has the burden in this court of

illustrating why the evidence is insufficient to support the verdict returned by the

trier of fact. State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); Grace, 493

S.W.2d at 476.



      At the time of the victim’s death, the Defendant was living with the victim,

Santana Goo dwin, th e victim ’s mother, V alerie G oodw in, and a two-m onth o ld

child, Tere nce D avis, Jr. W hile Terence Davis, Jr. was the child of the Defendant

and Ms. Go odwin, the Defen dant wa s not the b iological fath er of the victim.

During the State’s proof, the evidence presented was that on November 6, 1993,

an ambulance was dispatched to Defendant’s home. The emergency medical

technician who arrived on the sc ene, J anet K uhn, te stified a s to the victim’s

condition upon her arrival at 4190 Raleigh Woods, Apartment 3. When Kuhn first

arrived, the De fenda nt was holdin g the vic tim in his arms and told Kuhn that the

victim fell and hit her head on the fireplace. The victim was cool to the touch and

had no vital signs. After attempting to resuscitate the victim using various

                                         -3-
methods of CPR, intubation, and medication and receiving no response from the

victim, Kuhn transported the victim to LeBonheur Hospital. On the way to the

hosp ital, she noted that the victim’s abdomen was very tight and swollen, and that

she was co vered in b ruises with a hematoma on her forehead and a busted lower

lip.



       After the victim arrived at LeBon heur Hos pital, she was treated by a

pedia tric em ergen cy room physic ian, Ma ry McG inty. Th e victim was c old upon

arrival, with no pulse or blood pressure and a distended abdomen.               She was

observed to be a twen ty-two m onth o ld fem ale. W hile the victim ’s hea rt was s till

giving electrical impulses, there was no response to the various resuscitation

techniques adm inistere d to he r. Dr. Mc Ginty te stified th at the vic tim wa s, for all

practical purposes, dead when she arrived at the hospital. The victim was found

to have marks on her face, neck and abdomen, as well as bruises, broken blood

vesse ls and a cut on her low er lip. Th e victim ’s stoo ls cont ained both old and

new blood, and the tube used in an attempt to resuscitate the victim contained

blood from the victim’s abdomen. Wh ile Dr. McGinty did not list a cause of death,

she was suspicious of abuse immediately and recommended an autopsy be

performed.



       James Madden, a crime scene investigation officer of the Memphis Police

Depa rtment, was called to LeB onhe ur Ho spital to investig ate the victim’s death

and to take photogra phs of her body. Later, Madden went to the victim ’s

home to investigate and take photographs. While at the home, he took photos

of a paper towel in the kitchen trash can with what appeared to be blood spots,

a sheet with what appeared to be blood spots, the bathro om w ith the vic tim’s

                                           -4-
house shoes lying in the floor, lumps of hair lying on the living room floor, and the

fireplace where the De fenda nt said the victim fe ll and hit her h ead. Madden then

collected some of the items he photographed, including the paper towel, shoes,

sheet and lum ps of hair. During cross-examination, Madden admitted that he

observed fresh bruises on the victim’s lips, bruises on her left jaw, marks on her

forehead, discolored spots on her neck and bruises on her side when he

photographed her at the h ospita l. He did not observe any blood on the fireplace

when he was investigating the scene.



       Valer ie Goo dwin, th e victim ’s mother, testified that the Defendant was not

working during the week of November 1st through November 8th and cared for

the victim whenever she was working at Cracker Barrel during the evening hours.

Just prior to November 6, 1993, Goodwin observed a dark circle of bruises on the

victim’s jaw. When she asked the Defendant what happened to the victim, the

Defendant told her that the victim fell outside while playing.



       On the evening of November 6, 1993, Goodwin was called in to work at the

Cracker Barre l. Wh ile working, she called the Defendant who told her that the

victim was sleeping. Later, th e Def enda nt calle d and told he r that the victim fe ll,

was not bre athing and a n am bulance was on its way to the apartment. After

getting a ride fro m on e of he r neigh bors, G oodw in arrive d at the apartm ent in

time to follow the ambulance to LeBonheur Hospital. While in the waiting room,

the Defe ndan t told he r that the victim fe ll after tripping on house shoes and hit her

head on the fireplace. Goodwin further testified that both she and the Defendant

sometimes spanked the victim on either her hands, legs, or bottom. On cross-

examin ation, she admitted that she never witnessed the Defendant abuse the

                                           -5-
victim and told others that she could not believe the Defendant would have done

something like this.



      The Defendant was interviewed for the first time on November 7, 1993 by

Ronald Wilk inson , assig ned to the Ho micid e Bur eau a t the Me mph is Police

Depa rtment. W ilkinson tes tified that De fendan t told him th at the victim tripped

and fell on the fireplace. The victim stopped breathing, so the Defendant began

admin istering C PR.



      Richard Roleson, also an officer of the Homicide Bureau, testified that he

interviewed the Defendant for the second time on November 8, 1993, and they

went over the events of November 6, 1993 several times. During this discussion,

the Defend ant change d his story several times, but ultimately admitted that on

November 3, 1993, he whipped the victim after she had broken a glass. When

the victim slid out of the Defendant’s grasp, he hit her until she got still and

grabbed her by the back of the neck. The Defendant said the victim fell, and he

kicked her in her left side. In his statement, the Defendant admitted to getting

out of con trol. The Defendant again spanked the victim on November 6, 1993,

the day of the victim’s death. On cross-examination, Roleson admitted that he

told Defendant that no one had been electrocuted in Tennessee since 1962 or

1963, but that the State might cra nk it up again an y day.



      The autopsy of the victim was performed b y a ped iatric fore nsic

patholo gist, Violette Hnilica. She testified that there were various abrasions and

contusions on the victim’s twenty-five (25) pound body, as well as a tongue

hemo rrhage. The fleshy tissue between the lip and the gum was to rn. Ce rtain

                                         -6-
injuries she observed were not consistent with a fall, but were consistent w ith

being hit at skin surface from some other angle. The victim’s lower abdominal

region had multiple contusions, with nineteen (19) separate contusions on the

trunk area of the victim’s bo dy. The contusions in the lower left chest region we re

of a consistent pattern . In her internal exam , Dr. Hnilica testified that there was

old blood in the abdomen, brownish and disintegrating. This was unusual as

there is no free blood in a healthy abdomen. The old blood in the abdomen was

indicative that the victim sustained the injuries approxim ately three (3) days prior

to her death. All the victim’s left organs had contusions. She had five broken

ribs. These injuries were of a pattern consistent with the inside part of the heel

of a shoe. Dr. H nilica found ove r fifty (50) impact sites on the child. The liver

was completely lacerated from the abdomen, which wa s consis tent with

compres sive frontal pressure to the body. While the liver laceration would

norm ally be fatal in and of itself, in Dr. Hnilica’s opinion, the victim d ied of m ultiple

blunt force injuries.



       The defense offered various witnesses who testified as to seeing Valerie

Goo dwin spank the victim and grab other friends’ children on prior occasions.

Some defense witnesses testified that the Defendant was not at home on the day

of November 3, 1993, alone with the victim, but that the Valerie Goodwin was

there w ith the vic tim on that da te. Th e Def enda nt did n ot testify a t trial.



       According to Tennessee Code Annotated section 39-15-4 02, a perso n is

guilty of agg ravate d child abus e whe n suc h abu se res ults in serious bodily injury

to the child. The offense of child abuse is defined as “ . . . any person who

knowingly, other than by accidental means, treats a child under eighteen (18)

                                            -7-
years of age in such a manner as to inflict injury or neglects such a child so as

to adver sely affect the child’s health an d welfare . . .” Tenn. Code Ann. § 39-15-

401(a). Under Tennessee Code Annotated section 39-13-202(a)(2), first degree

murder is the killing of another in the perp etration of o r the attem pt to perp etrate

aggravated child abuse.



       By his own statement, Defendant admitted committing such acts of abuse

which ultima tely resulted in the dea th of the victim . Furthermore, the testimony

of Dr. Hnilica, the coroner who performed the autopsy of the victim, confirms that

the victim died of multiple blunt traum a injurie s, con sisten t with the Defe ndan t’s

statement that he kicked the victim and the pattern of injury consistent with a

shoe on the victim’s left side. There fore, there is sufficient evidence in the record

for a rational trier of fact to find the Defendant committed first degre e mu rder in

the perpetra tion of agg ravated c hild abus e resulting in the dea th of the victim.

The Defe ndan t has n ot me t his burden of proof regarding the insufficiency of the

evidenc e. This iss ue is witho ut merit.



              II.   ADMISSION OF DEFENDANT’S STATEMENT



       The next issue the Defendant raises is that the trial court erred by refusing

to suppress his statement of November 8, 1993, in which he admitted that he “got

out of control” and kicked the victim in her left side on November 3, 1993. The

trial judge found at the suppression hearing that the statement was voluntary and

not due to any co ercion.




                                            -8-
       The party which prevails in the trial court is entitled to the strongest

legitimate view of the e videnc e as w ell as all reasonable inferences drawn from

that evidence adduced at the suppre ssion he aring. State v. Odom, 928 S.W.2d

18, 23 (Tenn . 1996). The trial court’s findings will be upheld unless the evidence

prepon derates otherwis e. Id.



       It is the defe ndant’s d uty to have prepa red an ade quate record in order to

allow a meaning ful review on appea l. Tenn. R . App. P. 2 4(b); State v. Bunch,

646 S.W .2d 158 , 160 (T enn. 19 83); State v. R oberts, 755 S.W.2d 833, 836

(Tenn. Crim. App. 1988). While the Defendant failed to include the entire record

of the supp ressio n hea ring as part of th e reco rd on a ppea l, an ample account of

the proceedings were in clude d with th e Def enda nt’s ap peal fo r this Court to make

a fair and meaningful evaluation of such proceedings. Tenn. R. App. P. 24(b);

see State v. Ballard, 855 S.W .2d 557, 560 -61 (Tenn . 1993).



       In determ ining whe ther a sta tement is made voluntarily, this court must

look to the totality of the circumstances surrounding the confession, and the

standard is whether “the behavi or of the state’s law enforcement officials was

such as to overbear petitioner’s will to resist and bring about confessions not

freely self-determined .” State v. Kelly, 603 S.W .2d 726, 728 (Tenn. 198 0). In the

case sub judice, the Defendant was told after being read his Miranda rights by

Roleson, the police officer interrogating him, that the possible penalties for first

degree murder were either death or life imprisonment. The police officer further

informed Defendant that the death penalty had not been carried out in Tennessee

since 19 62 or 19 63, but tha t it might start b eing carr ied out at a ny time.




                                           -9-
       The Defendant refers to an earlier case which was cited in Kelly in which

the defendan t was prom ised by a police officer that if he were to confess, the

prosecution would not ask for the “electric chair.” See Ford v. S tate, 201 S.W.2d

539 (Tenn . 1947).        T he state men t the offic er ma de to D efend ant is

disting uisha ble in that such a stateme nt regar ding th e pos sible p enaltie s cou ld

not be interpreted as a promise of leniency in exchange for the Defendan t’s

confession. In fact, the officer m ade n o ass uranc es reg arding the pro bable

punishment for the Defendant if he were to be convicted. The totality of the

circumstances surrounding the Defendant’s confession were n ot suc h that w ould

overbear the Defe ndan t’s will.     Gr eat de ferenc e is give n to a tria l judge ’s

determination that a confession was given voluntarily and without coercion

because the trial judge sees and hears the witnesses while appe llate courts

examine only a “cold record.” Lowe v. S tate, 584 S.W.2d 239, 241 (Tenn. Crim.

App. 1979). The trial judge found that the Defendant’s confession was not

coerced, and th at the s tatem ent the officer to ld to Defendant regarding the

poss ible punishment did not make Defendant incriminate himse lf in his

statem ent. A care ful revie w of the record in this case fails to convince us that the

evidence preponderates against the findings of the trial judge.




                                          -10-
               III.   LETTER WRITTEN BY VICTIM’S MOTHER



      The Defenda nt argues that the trial court erred by refusing to allow a letter

written by the victim’s m other to be admitted into evidence. It is well established

that the decision to admit or exclude evidence is left to the sound discretion of the

trial judge and the trial court’s decision will not be disturbed unless it has been

arbitra rily exercise d. State v. Baker, 785 S.W .2d 132, 134 (Tenn. Crim. App.

1989); State v. Hawk, 688 S.W .2d 467 , 472 (T enn. C rim. App . 1985).



      The letter which Defendant sought to have admitted into evidence read:

      To Whom it May Concern:

      I am writing this letter asking for leniency in the matter of Mr.
      Terrence LeRoy Davis. I am the mother of the deceased. I feel this
      whole case is being blown out of proportion. I don’t feel it is a
      murder case. I feel tha t what h appe ned if anythin g was accide ntal.
      I would g reatly app reciate this if the Cou rt took this into
      consideration.

                                                         Thanks,
                                                         /s/ Ms. V alerie G oodw in


      The letter fro m Va lerie G oodw in dea ls with tw o sub jects, le nienc y and g uilt

or innocence, respectively. Any language in the letter regarding leniency is

irrelevant as to g uilt or inn ocen ce an d inste ad is re levant to pun ishme nt.

There fore, the contents of the letter regarding leniency are irrelevant and were

correctly ex cluded from trial.



      During the trial, D efend ant ca lled Va lerie Goodwin to the stand as his own

witness, but no evidence was introduced to show that she had personal

knowledge of the matters surrounding the victim’s death on the night of



                                          -11-
November 6, 199 3. The witnes s’s opinions about whether the victim’s death was

an accident a re irrelevan t.      Furtherm ore, Go odwin w as allowe d to testify

regarding her opinion that “[she] could not believe [Defendant] could do

something like that,” and “if anything had happened [to the victim], it was an

acciden t.” Defendant argues that the letter the trial court ruled inadmissible was

necessa ry for his theory of defense. The letter would only be cumulative to her

statem ents already introduced into evidence by the Defendant.                      These

statem ents were heard by the jury and the trial judge, thereby allowing the

Defendant to provide evidence in the record of his theory of defense. This issue

has no merit.



             IV.   ADM ISSIO N OF PHO TOG RAP HS O F TH E VICT IM



         Defendant argues that the trial court erred by perm itting the Sta te to

introduce into evid ence certain photo graph s of the victim, including o ne pho to

of the victim when she was a live and several autopsy photographs.                     The

admissibility of photographs is in the sound discretion of the trial court, and,

absent a show ing of clea r abuse , this Cou rt is not to interfe re with the trial cou rt’s

exercise of that discre tion. See State v. Van Tran, 864 S.W.2d 465, 477 (Tenn.

1993). A photo must be relevant to an issue that the jury must decide and the

probative value of the photograph must outweigh any prejudicial effect that it may

have upon the trier of fact befo re a pho tograph may be admitted into evidence.

State v. Auco in, 756 S.W .2d 705 , 710 (T enn. C rim. App . 1988), cert. denied, 489

U.S. 1084 (1 989); State v. Braden, 867 S.W .2d 750, 758 (Tenn. C rim. App.

1993).




                                            -12-
                    A. IDENTIFICATION PHOTOGRAPH OF VICTIM




       Defendant contends that the photograph of the victim , used by the State

for identification purposes and admitted into evidence, constitutes reversible error

by the trial court as any of the other photog raphs use d by the State co uld have

been used for identification purposes. Defendant argues that such a picture of

the young victim w as un duly pr ejudic ial as it motivated the jury to seek vindication

for the victim’s d eath. Upon review by th is court, the final judgment of conviction

shou ld not be set aside unless the error m ore probably than not affected the

judgment or resulted in prejudice to the judicial pro cess. Ten n. R. App. P. 3 6(b).



       W hile it would have been better if the “before” picture of the victim had

been exclud ed from eviden ce, it ad ded little or nothing to the sum total of

knowledge of the jury. See State v. Dicks, 615 S.W .2d 126 , 128 (T enn.), cert.

denied, 454 U.S. 933 (1981); see also State v. S trouth, 620 S.W.2d 467, 472

(Tenn. 1981); State v. Richardson, 697 S.W.2d 594, 597 (Tenn. Crim. App.

1985). The photograph in question is nothing more than a snapshot of the victim.

Defendant has failed to provide a basis for finding that this photograp h wou ld

generate sym pathy or prejudice him. After a review of the en tire reco rd, and in

consideration of the profuse evidence of the Defendant’s guilt, the introduction

of this photograp h of the victim was no t prejudicia l error. See, e.g., State v.

Horton, Lexis 105, Shelby County (Tenn. Crim. App., Jackson, filed Feb. 10,

1988) (perm. to appeal denied); State v. Beckham, C.C.A. 02C01-9406-CR-

00107, Sh elby County (T enn. Crim. A pp., Jackson , Septemb er 27, 1995).



                            B. AUTOPSY PHOTOGRAPHS


                                          -13-
       The Defendant next argues that the trial court erred by admitting three

different autop sy pho tograp hs of th e victim into evid ence which he c laims are

overly preju dicial. The State sought to introduce into evidence four autopsy

photographs. While three of the photographs were admitted into evidence, one

photograph showing an incision from the victim’s mid- chest to the navel and the

old, brown blood inside the victim ’s bod y was ru led ina dmis sible by the trial judge.

This photograph was determined as more prejudicial than probative by the trial

judge. Photographs of a corpse are admis sible in murder prosecutions, if they

are relevant to is sues o n trial, notwiths tanding their gruesome and horrifying

character. State v. Banks, 564 S.W.2d 947 (Tenn. 1978). If they are not relevant

to prove som e part of the prosec ution’s ca se, they m ay not be admitted solely to

inflame the jury and prejudice them against the defendant. Id. For the co urt to

determine wheth er the p rejudic ial effec t of the p hotog raphs outwe ighs th eir

probative value, the matters to be considered include the value of the

photographs as evidence, that is, their accuracy and clarity, whether they w ere

taken prior to the corpse being moved . . . the inadequacy of testimonial evidence

relating facts to the jury and the need for evidence to establish a prima facie case

of guilt or to reb ut defen dant’s co ntentions . Id. at 948.



       The first picture is a photograph of an incision cut into a bruise on the

victim’s buttocks. While the photograph is quite vivid in its details of a gruesome

crime, it is not rende red ina dmis sible m erely beca use th e sub ject po rtrayed could

be describe d in word s or the ph otograp h may b e cum ulative. Collins v. S tate,

506 S.W.2d 179, 185 (Tenn. Crim. App. 1973). The State used this particular

photograph for the expert witness to illustrate to the jury that the bruise on the

victim’s buttocks was deep, indicating a more extensive injury, and that it was an

                                          -14-
older bruise due to the depth of the blood as shown in the incision.           Expert

testimony of the State placed the fatal injuries occurring from two to five days

prior to the victim’s date of death, and the illustration of the age and severity of

the bruises is cons istent with the State’s theo ry of aggravated child abuse by the

Defen dant. While such a photograph may be visually disturbing, the photograph

was not so prejudicial as to outweigh its probative value in determining the age

and severity of the bruise.



       The two other photographs the Defend ant arg ues w ere err oneo usly

admitted into evidence are pictures of the victim’s live r. The trial court found that

such photos were not so disturbing as to b e und uly prejudicial, and the photos of

the liver were probative in the proof of the elements of aggravated child abuse.

The State’s ex pert witne ss used these ph otograp hs to demo nstrate the severity

of the victim’s in juries, and to illustrate tha t the tear which oc curred two to five

days prior to the victim’s death was consistent with the Defendant’s statement

abou t beatin g and kicking the victim on No vemb er 3, 199 3. The admis sion into

evidence of these photographs by the trial court was not an abuse of discretion,

and this iss ue is witho ut merit.



               V.    ADMISSION OF LAY OPINION TESTIMONY



       The Defendant contends that the trial court e rred by perm itting a c ousin of

the victim to testify as to her opinion of the Defendant’s discipline of the victim.

If a witness is not testifying as an expert, the witness’s testimony in the form of

opinions or inferences is limited to those opinion s or inferences w hich are

rationa lly based on the perception of the witness and helpful to a clear

                                         -15-
understanding of the w itness ’s testimony or the determination of a fact in issue.

Tenn. R. Evid. 701.       If the testimony of the witness describes his or her

observations in the form of an opinion because it is the only way in which they

can be clearly d escribed , then there is an exce ption to this g eneral ru le. National

Life & Accident v. Follett, 168 Tenn. 647, 80 S.W.2d 271, 274 (Tenn. 1935)

(testimony that a footprint in the snow looked like som eone h ad slippe d); State

v. Brown, 836 S.W.2d 530, 550 (Tenn. 1992) (nurse’s testimony that an injury on

the victim’s foot looke d like a ciga rette burn ); State v. Mabon, 648 S.W.2d 271,

274 (Tenn. Crim . App. 1982 ) (testimony that a su bstance ap peared to be blood).



       At trial, the victim’s cousin testified that while she lived with the victim she

witnessed several incidents where the Defendant disciplined the victim. She

ultima tely told other family members that such discipline by the Defendant was

too strict.   This testimony fits within the parameters of the exception to the

general rule; her opinion of the Defe ndan t’s disciplin e of the victim w as the only

way for her to clearly describe her observances. This Court cannot find this as

revers ible error, particularly in light of this cousin’s earlier testimony in which she

described the Defendant’s repeated discipline of the victim for every little thing

she did. There was no abuse of discretion by the trial judge in allowing such

testimon y.



                VI.   ADMISSION OF JENCK S ACT MATER IAL
                        OF DEFENSE INVESTIGATOR



       Defendant argues that the trial co urt erred b y requiring the Defe ndant to

provide a copy of his private investig ator’s repo rts to the S tate as “Je ncks A ct”


                                          -16-
materials. After a witness has testified, the party who offered the witness, on

motion of the o ther pa rty, mu st prov ide the movin g party with an y witnes s’s

statement the offering party has in their possession that relates to the testimony

of the witness. Tenn. R. Crim. P. 26.2(a). A statement includes:

       (1) a written statement made by the witness that is signed or
       otherwise ad opted or app roved by the witne ss; or

       (2)a substantially verbatim recital of an oral statement made by the
       witness that is recorded contemporaneously with the making of the
       oral statement and that is conta ined in a sten ograp hic, m echa nical,
       electrical, or o ther reco rding or a transcriptio n thereo f.

Tenn . R. Crim . P. 26.2(g ).

W hile this Court concludes that requiring the Defendant to provide these re ports

to the State was erro r, such err or was h armles s in that the re was n o prejud ice to

the De fendan t.



       The statements at issue were notes a private investigator took as she

interviewed witnesses for the Defenda nt. These n otes were later transcribed as

a record of her interviews of these witnesses. There is no evidence in the re cord

that the statement was adopted or approved by the witness. Rule 26.2 was

forme rly a part of Rule 16. In an earlier c ase u nder R ule 16 , this Co urt held that

a summ ary of a witness’s pre-trial statement would only be subject to inspection

under the “Je ncks Act” if it was in writing and was signed, adopted or approved

by the witnes s. See State v. Robinson, 618 S.W.2d 754, 759 (Tenn. Crim. App.

1981). The notes the investigator made while interviewing the witness do not

qualify under the definition of a “substantially verbatim recital” of a witness’s oral

statement under Te nnessee Rules of Crim inal Procedu re 26.2(g). See State v.

Payton, 782 S.W.2d 490, 494-95 (Tenn. Crim. A pp. 198 9); see State v. Farmer,

No. 88-282 -III, Davidson County (Tenn. Crim. App., Nashville, filed November 17,

                                          -17-
1989) (Rule 11 application denied, January 29, 1990 ).               Wh ile the private

investig ator’s report should not ha ve been subject to the “Jencks Act,” any such

error by the trial court was harmless. Defendant’s attorney stated to the trial

court that the report was not detrimental to the Defendant. Therefore, Defendant

did not suffer any prejudice in turning over the report to the State.



   VII.   ADMINISTRATION OF OATH TO GRAND JURY FOREPERSON



      The final issu e Def enda nt raise s is that the trial c ourt er red by swea ring in

a grand jury forepe rson in view of the jury. The Tennessee Rules of Criminal

Procedu re provide fo r an oath to be adm inistered to all members of the grand

jury, including the foreperson. T enn. R. Crim . P. 6(a)(4). A separate subsection

of Rule 6 provides that every member of the grand jury shall keep secret the

proceedings of that body. Tenn. R. Crim. P. 6(k)(1). Defendant argues that the

swearing in of the foreperson of the grand jury by the trial judge in the presence

of the Defendant’s jury wa s preju dical a nd in vio lation o f the rule of sec recy in

proceedings.



      The purpose of secrecy for grand jury proceedings is to



      imbue the grand jurors with a sense of confidence and security so
      that they may discharge their duties without apprehension of any
      hurt from an accused or some other person; to secure the utmost
      freedom of disclosure of alleged crimes by prosecutors; to conceal
      the fact that an indictment has been found against an accused who
      is not yet in custody; to prevent perjury and subornation of perjury
      to the exten t that, if testimony given before the grand jury we re
      known, the accused or a confederate might attempt to disprove it by
      procuring false testimony; and to protect an accused citizen from
      public disgrace in a case where th ere is not e nough evidenc e to
      support a criminal charge.

                                          -18-
Rippy v. State, 550 S.W.2d 636, 642 (T enn. 19 77), (quoting 1 Wharton, Criminal
Procedu re (Torcia 12th Ed. 1974), § 2 21 at 488, 48 9).


       Obviously, the sw earing in of the grand jury fore perso n is no t within the

purpose of the rule for secrecy. Therefore, there was no error by the trial judge

when he administered the oath to the foreperson of the grand jury in view of the

Defe ndan t’s jury. Furthermore, we find that the adm inistration of s uch an oath

in the presence of the Defen dant’s jury was not prejudical to the trial of the

Defendant in any way. The jury was instructed that the indictment against the

Defendant issued by the g rand jury was n ot eviden ce of the D efenda nt’s guilt.

It is presum ed that the jury followed the trial cour t’s instruction s. State v. Lawson,

695 S.W .2d 202 , 204 (T enn. 19 85). Th is issue ha s no m erit.




                                          -19-
    We affirm the ju dgme nt of the trial co urt.




                                ____________________________________
                                THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
JOSEPH B. JONES, Presiding Judge


___________________________________
PAUL G. SUMMERS , Judge




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