         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs July 2001 Session

                   STATE OF TENNESSEE v. WILLIAM J. FORD

                   Direct Appeal from the Criminal Court for Shelby County
                             No. 99-11016    Chris Craft, Judge



                       No. W2000-01205-CCA-R3-CD - Filed July 12, 2002



         A Shelby County grand jury indicted the defendant for first degree murder, and the State
elected to seek the death penalty in this case. Following the guilt phase of the defendant’s bifurcated
trial, the trial jury convicted him as charged. At the close of the sentencing phase, the trial jury
further found that the evidence supported the existence of the alleged aggravating factor but
concluded that this factor did not outweigh the mitigating factors. The jury, therefore, sentenced the
defendant to serve a life term without the possibility of parole. Subsequently, the defendant filed a
new trial motion which the trial court denied. On appeal, the defendant contends (1) that the
evidence is insufficient to support his conviction; (2) that the trial court erred in barring him from
the courtroom because of his outbursts in the jury’s presence; (3) that the trial court erred in not
declaring a mistrial after deciding that the defendant could not be present at his trial because of these
outbursts; (4) that the trial court erred in admitting three letters written by the defendant; and (5) that
the prosecution, in its closing argument, impermissibly shifted the burden of proof to the defense by
commenting on a witness mentioned by the defense in its opening statement but not called to testify
at trial. Upon reviewing these issues, we find that none merit relief and, therefore, affirm the
defendant’s conviction.

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

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID G. HAYES and ALAN E.
GLENN, JJ., joined.

Gerald Skahan, Memphis, Tennessee, for appellant, William J. Ford.

Paul G. Summers, Attorney General & Reporter; Mark E. Davidson, Assistant Attorney General;
William L. Gibbons, District Attorney General; and David Henry, Assistant District Attorney
General, for appellee, State of Tennessee.
                                                          OPINION

                                         Factual Background
        On February 4, 1999, the victim, Dilanthious Drumwright,1 was a high school student
walking from school with a group of other young people of various ages. Within this group were
Soibhan Fleming, Tiffany White,2 and Alfonzo Bowen. In order to avoid a potential confrontation
resulting from an altercation which had taken place further up the street on the previous day, the
students had left the street they would have ordinarily traveled. Nevertheless, two vehicles pulled
up near the group. Demond Gardner drove the car in which the defendant and Jerry Joyce were
riding. Chris Lewis drove the other vehicle with his brother Derrick Lewis as a passenger.3
        Fleming, White, Gardner, Joyce, and Bowen testified for the State as eyewitnesses to the
incident. Gardner related that the defendant had left Gardner’s car and obtained a weapon from
someone in Chris Lewis’ vehicle prior to the shooting. All five witnesses identified the defendant
as the shooter and recalled that multiple shots had been fired. Bowen, in fact, stated that he had heard
nine or ten shots, and Officer Sherman Bonds of the crime scene unit testified that he had recovered
nine spent shell casings and one live round in the immediate area. Additionally, numerous
individuals testified concerning threatening comments made shortly before the shooting by the
defendant or others in the automobiles. It was determined that one of the shots had hit the victim
in the back resulting in his death.
        After firing the weapon, the defendant returned to Gardner’s car, and both vehicles left the
scene. Gardner recounted that he thereafter drove the defendant to Chris Lewis’ house, where the
defendant left the car taking the weapon with him. When the defendant returned shortly thereafter,
Gardner saw no weapon. He then took the defendant to the defendant’s home.
        Following the defendant’s arrest for this crime, the defendant composed and sent three letters
to Gardner. These letters instructed Gardner to relay to various potential defense witness what their
testimonies should include and to threaten female witnesses involved in the case. Gardner turned
these letters over to the authorities before the defendant’s trial, and all three were later admitted in
that proceeding.
        After hearing the above-outlined and additional poof, the jury convicted the defendant of first
degree murder and, at the conclusion of the sentencing phase of the trial, sentenced him to life
without parole for the offense.4 In this appeal the defendant raises the aforementioned challenges
to his conviction.


          1
            The reco rd co ntains different spellings of the victim’s name; however, in this opinion we will use the one
utilized in the in dictm ent.

          2
              This w itness is also referred to as T iffany D obbins.

          3
            Derrick L ewis testified for the defense at trial regarding the defendant’s consumption of alcohol in the hours
prior to the murder.

          4
              Since the defendant does not challenge his sentence, we will not summ arize the proof from the sentencing
pha se.

                                                               -2-
                                             Sufficiency

         Through his first issue the defendant asserts that the evidence is insufficient to support his
conviction for first degree murder. More specifically, the defendant alleges that the State did not
meet its burden of proof regarding premeditation.
         When a defendant challenges the sufficiency of the evidence, this Court is obliged to review
that claim according to certain well-settled principles. A verdict of guilty, rendered by a jury and
“approved by the trial judge, accredits the testimony of the” State's witnesses and resolves all
conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994);
State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked
with a presumption of innocence, the jury verdict of guilty removes this presumption “and replaces
it with one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the
burden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence.
Id. The relevant question the reviewing court must answer is whether any rational trier of fact could
have found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn.
R. App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may
be drawn therefrom.” Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-
weighing or reconsidering the evidence in evaluating the convicting proof. State v. Morgan, 929
S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Moreover, we may not substitute our own “inferences for those drawn by the trier of
fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779. While the trier of fact must be
able to “determine from the proof that all other reasonable theories except that of guilt are excluded,”
a criminal offense may be established exclusively by circumstantial evidence. State v. Jones, 901
S.W.2d 393, 396 (Tenn. Crim. App. 1995); see also, e.g., State v. Tharpe, 726 S.W.2d 896, 899-900
(Tenn. 1987).
         Turning to the law regarding premeditation, Tennessee Code Annotated section 39-13-
202(a)(1) defines first degree murder as the “premeditated and intentional killing of another.” Tenn.
Code. Ann. § 39-13-202(a)(1). Furthermore, Tennessee Code Annotated section 39-13-202(d) states:
         As used in subdivision (a)(1) “premeditation” is an act done after the exercise of
         reflection and judgment. “Premeditation” means that the intent to kill must have been
         formed prior to the act itself. It is not necessary that the purpose to kill pre-exist in
         the mind of the accused for any definite period of time. The mental state of the
         accused at the time the accused allegedly decided to kill must be carefully considered
         in order to determine whether the accused was sufficiently free from excitement and
         passion as to be capable of premeditation.

Tenn. Code Ann. § 39-13-202(d).

         The existence of this element remains a question for the jurors to determine and may be
established by proof of the manner and circumstances of the killing. See State v. Pike, 978 S.W.2d
904, 914 (Tenn. 1998); State v. Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993). Factors which
tend to establish the existence of premeditation “include: the use of a deadly weapon upon an


                                                  -3-
unarmed victim; the particular cruelty of the killing; declarations by the defendant of an intent to kill;
evidence of procurement of a weapon; preparations before the killing for concealment of the crime,
and calmness immediately after the killing.” State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997). In
addition, State v. Bordis, 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995), provides that a jury faced
with resolving this question also may utilize facts raising the inference of a motive and/or the
implementation of a preconceived design.
         In the instant case the proof supports a finding of at least three of these factors. First, the
defendant shot the unarmed victim in the back as the victim walked away from the defendant.
Second, Bowen indicated that the defendant had said “LMGK” and “VLK” prior to firing the
weapon. Multiple witnesses had explained that “LMGK” meant “Lemoyne Garden Killer” and
“VLK” meant “Vice Lord Killer.” Thus, the defendant had arguably announced himself to be a killer
before taking the victim’s life. Moreover, the comments suggest a gang-related motive.5 Third, the
defendant left the vehicle in which he had been riding and procured a weapon from someone in Chris
Lewis’ car which was parked nearby. Faced with this evidence, we find sufficient proof of
premeditation.
         As previously noted, first degree murder also involves the “intentional killing of another.”
See Tenn. Code Ann. § 39-13-202(a)(1). Within the latter portion of the defendant’s argument for
this issue, he contends that the State additionally failed to prove that he had acted with the intent to
kill. To support this assertion, the defendant cites his alleged intoxication; questions that the jurors
asked the court during their deliberations; the fact that only one person in the group had been hit (and
this by a single shot); testimony that the weapon was pointed in the air; and an alleged heated
exchange preceding the shots.
         Concerning the defendant’s alleged intoxication, the trial court instructed the jury that
voluntary intoxication can be found to negate the requisite mental state. In addition, Derrick Lewis
did testify at trial that the defendant had been intoxicated at the time of the offense. However, while
Gardner testified that the defendant had been drinking then, Gardner added that the defendant had
appeared in control and not intoxicated. Furthermore, an officer who had seen the defendant
approximately two to three hours after the offense indicated that the defendant had not appeared
intoxicated. For example, the officer stated that he had not detected an odor of alcohol on the
defendant, nor had he noticed any slurring of the defendant’s speech. Resolving all conflicts in favor
of the State, the jury could well have determined that the defendant’s ability to take part in an
intentional killing had not been negated by voluntary intoxication. See, e.g., State v. Hall, 8 S.W. 3d
593, 600 (Tenn. 1999); State v. Brooks, 909 S.W.2d 854, 859 (Tenn. Crim. App. 1995).
         The record also indicates that the jurors asked the trial court two questions during their
deliberations. Essentially, the jury asked 1) whether the law required an “intent to shoot or an intent
to kill”; and 2) whether the law would hold a person responsible for the consequences of an act
though the person did not desire the specific outcome “if a reasonable person should have known
his or her actions could produce those results.” To these inquiries the trial court provided written


         5
           Gardner recounted that the defendant had said, “[G]et them hooks” prior to the sh ootin g. This witness
explained that the statement m eant “do som ething to” Vice L ords. Furthermore, White indicated that “LMG” stood for
the neighborhood known as “Lemoyne Garden”; thus, she explained “LMGK ” referred to killing those who are from
that neighborhood.

                                                        -4-
responses reflecting the state of the law. From our review the questions signify the jury’s thoughtful
analysis of the facts, and their verdict demonstrates that they rejected alternative theories to that of
the defendant’s guilt of first degree murder.
        Briefly addressing the remaining points urged by the defendant on this issue, we remain
unpersuaded. The record reflects little proof of a heated exchange preceding the shots but rather
provides more than one statement indicating that the members of the victim’s group were walking
away from and ignoring the defendant’s incendiary comments. Furthermore, the testimony regarding
whether the weapon was pointed in the air is open to interpretation, and even if the defendant had
originally pointed the weapon up in the air, he obviously later lowered it, firing into a group of young
people; otherwise the victim would not be dead. Resolving all conflicts in favor of the prosecution,
we find ample support for the conclusion that the defendant announced himself as a killer; went to
another car, obtained a weapon therefrom; and then fired multiple times killing the victim with one
of these shots. These facts support a finding of intent to kill. This issue lacks merit.

                         Excluding the Defendant from the Courtroom

        The defendant next avers that the trial court erred in barring him from the courtroom for his
repeated interruptions during the trial. Rule 43 of the Tennessee Rules of Criminal Procedure,
entitled “Presence of the Defendant” provides, in relevant part,
        (a) Presence Required. Unless excused by the court upon defendant's motion, the
        defendant shall be present at the arraignment, at every stage of the trial including the
        impaneling of the jury and the return of the verdict, and at the imposition of sentence,
        except as otherwise provided by this rule.
        (b) Continued Presence Not Required. The further progress of the trial to and
        including the return of the verdict and imposition of sentence shall not be prevented
        and the defendant shall be considered to have waived the right to be present
        whenever a defendant, initially present:
                 (1) voluntarily is absent after the trial has commenced (whether or not he or
        she has been informed by the court of the obligation to remain during the trial), or
                 (2) after being warned by the court that disruptive conduct will cause the
        defendant to be removed from the courtroom, persists in conduct which is such as to
        justify exclusion from the courtroom. If a trial proceeds in the voluntary absence of
        the defendant or after the defendant's removal from the courtroom, he or she must be
        represented in court by competent counsel; and, if the defendant has been removed
        from the courtroom, he or she shall be given reasonable opportunity to communicate
        with counsel during the trial. If a trial is proceeding with the defendant excluded
        from the courtroom because of disruptive conduct, the court shall periodically
        determine at reasonable intervals whether the defendant will then signify willingness
        to avoid creating a disturbance if allowed to return to the courtroom and shall permit
        such return when the defendant so signifies and the court reasonably believes the
        defendant.

Tenn. R. Crim. P. 43.


                                                  -5-
        Prior to causing the disturbances, the defendant expressed dissatisfaction with his
representation and sought a continuance on the morning of jury selection. When the continuance
was denied, the defendant made spontaneous proclamations to the jurors on multiple occasions
regarding the unfair nature of his trial.
        In his first series of statements made before the initial witness had been called, the defendant
exclaimed: “The Court’s forcing me to go to trial. My attorneys are against me. . . . They haven’t
even contacted my witnesses. . . . I’m not ready to go to trial.” Thereafter the trial court had the jury
removed from the courtroom and told the defendant that he could not continue to talk to the jurors.
The trial judge added that if the defendant persisted, the judge would remove him from the
proceeding or have him bound and gagged.6 After the defendant indicated that he understood and
after he stated, “That’s all I had to say,” the jurors were allowed to return to the courtroom. The trial
court apologized to them for the disruption, gave an overview of courtroom procedure regarding
speaking in court, and inquired whether they could disregard the outburst. All affirmed that they
could still fairly try the case.
        Nevertheless, minutes later, the defendant again began making comments about his counsel’s
alleged failure to contact witnesses and the trial court’s forcing him to trial though he was not
prepared. In addition, the defendant announced, “My attorneys [sic] out to railroad me.” The trial
court once more had the jury removed from the courtroom; had a discussion with the defendant and
the attorneys; and received assurances from the defendant that he would not create a further
disturbance. Prior to allowing the jury to return, the trial court cautioned the defendant using
indisputably clear language. For example, the trial court stated:
        But you understand that if you make another outburst, you have waived your right to
        be in court, you will be ejected, and if you choose to testify in this case, I will bring
        you back in for your testimony but I will not allow you to come back into this trial
        tomorrow or the next day . . . if you make another outburst, you have waived your
        right to appear for the entire trial. . . . you can’t say another word in this trial while
        this jury’s in the courtroom without my permission. If you do, you’ve forfeited your
        right to be in here on your trial.7

The jurors returned; were instructed by the judge that these acts could not be considered relevant to
the State’s case; and again indicated that they could fairly try the defendant.
        The trial proceeded, and numerous State witnesses testified. During more than one break
while the jury was not present, the trial court thanked the defendant for his good behavior and
repeated the consequences to be imposed if he chose to create another disturbance. On one of these
occasions, the defendant learned that Eric and Derrick Lewis were present. In seeking his
continuance, the defendant had complained that trial counsel had failed to prepare and call these

         6
            Even before this first outburst, the trial court had heard that the defendant might be planning to cause some
form of trouble; thus, the court had cau tioned the defendant that if he did not follow procedure, he w ould forfeit his
“right to remain in the courtroom.”

         7
          Exclusion for the entire trial at that point may have been too severe in view of the aforementioned provisions
of Rule 43(b)(2) and the fact that the first witness had yet to testify when the court issued this warning. However, we
need not rule on this matter as the exclusion occurred considerably later in the proceeding.

                                                          -6-
individuals and another witness for trial.8 When the jurors returned, the defendant announced to
them: “They’re trying to railroad me. You don’t know what’s going on back there. They haven’t
prepared no defense for me in my behalf. I’m not ready to proceed to trial. They [sic] trying to
railroad me for real.”
        The trial court had the jury step out of the courtroom and then found that the defendant had
waived his right to be present at trial. While announcing its findings, the trial court stated:
        This Court finds for the record that [the defendant] has forfeited his right to remain
        in this trial. [The defendant] has a constitutional right to confront his witnesses. He
        does not have a right to disrupt these proceedings and make demonstrations in front
        of this jury. This Court also finds that he waited until all of the jury was in here . . .
        and he purposefully, willfully tried to disrupt these proceedings. Therefore, I find as
        a matter of fact that [the defendant], knowing what would happen, has freely and
        voluntarily waived his right to be present at his trial and I’m excluding him from the
        courtroom.9

Thereafter, defense counsel moved for a mistrial, but the trial court did not grant this request. The
jury returned, and the trial court briefly explained what had transpired and that none of these
occurrences were to reflect on the defendant’s guilt or innocence for the charged crime. Finally, the
trial judge polled each member of the jury concerning whether he or she could “give the State and
the defendant in this case a fair trial.” All asserted that they could.
         Though excluded from the courtroom, the defendant was placed in a room nearby where
counsel could confer with him during breaks. Moreover, the trial judge allowed the defendant to
return at the beginning of the sentencing phase of this proceeding. In all, four witnesses testified in
the defendant’s absence: a crime scene unit officer, the medical examiner, a defense witness, and an
officer briefly called in rebuttal concerning the matter of intoxication.
         To support his argument, the defendant cites State v. Cole, 629 S.W.2d 915 (Tenn. Crim.
App. 1975) for the proposition that the outburst must be violent and/or threatening to overcome an
accused’s constitutional right to be present during his or her trial. However, our review reveals no
such requirement nor would logic demand this. A defendant may not be allowed to continue
speaking with the jury at will, thereby impeding the orderly conduct of the trial.
         In the instant case the defendant received multiple warnings. He stated that he understood
the ramifications of his continuing to engage in the disruptive behavior. When given the choice
between being bound and gagged or being removed from the courtroom as an impending penalty
should he persist, the defendant stated that his preference would be removal from the courtroom.


         8
           Chris Le wis was the third de sired witness wh o w as no t present. However, in spite of above-referenced
testimony indicating that he had been present when the crime occurred, this individual had given a statement to the
police denying that he had seen anything relative to this offense. Th e valu e of h is potential testimony is, therefore,
que stionable.

         9
           The trial court also noted for the record its belief that the defendant’s latest outburst had occurred upon
learning that the allegedly desired witnesses, previously mentioned as a reason for needing a continuance, were pre sent.
The court further opined that since these individuals could no longer be used as a proposed ground for delaying the trial,
the defendan t then attem pted to force de lay through “deliberately trying to ask for a m istrial.”

                                                           -7-
The trial court gave him an adequate opportunity to comply, and by his actions the defendant
forfeited his right to be present for the portion of his trial from which he was excluded. There has
been no finding that he was not competently represented by both of his appointed attorneys. These
individuals were able to confer with him during breaks in the trial. In fact, the court allowed the
defendant to return to the courtroom on some occasions when matters were being discussed but the
jury was not present. Furthermore, we have noted that the trial court permitted the defendant to
return during the entire sentencing portion of the proceeding. 10 We understand the trial court’s
hesitancy in allowing the defendant to return earlier in view of the defendant’s previous failure to
keep his word after promising not to cause further disturbances. Under these circumstances we find
that the trial court has complied with the aforementioned Tennessee Rule of Criminal Procedure
43(b). See, e.g., State v. Ballard, 21 S.W.3d 258, 261-62 (Tenn. Crim. App. 2000) (recognizing that
a defendant may be removed from a courtroom pursuant to the requirements of Tennessee Rule of
Criminal Procedure 43(b)(2)). This issue, therefore, lacks merit.


                          Denial of Mistrial Following Exclusion From Court

        Relatedly, the defendant asserts that once the trial court removed him, “it was incumbent
upon the Court to grant a mistrial due to the obvious prejudice to” him. According to established
precedent, the purpose of a mistrial is to correct the damage done to the judicial process when some
event has occurred that would preclude an impartial verdict. Arnold v. State, 563 S.W.2d 792, 794
(Tenn. Crim. App. 1977). The decision whether to grant a mistrial is within the trial court's discretion
and will not be disturbed absent an abuse of that discretion. State v. McPherson, 882 S.W.2d 365,
370 (Tenn. Crim. App. 1994). “Generally a mistrial will be declared in a criminal case only when
there is a ‘manifest necessity’ requiring such action by the trial judge.” State v. Millbrooks, 819
S.W.2d 441, 443 (Tenn. Crim. App. 1991).
         Our review leads us to conclude that no “manifest necessity requiring” a mistrial presented
itself here. The trial court swiftly took action to remove the jurors when the defendant began each
of his outbursts. More importantly, the trial court instructed the jury that these incidents were not
to be considered with respect to the defendant’s guilt or innocence, and the court polled the jurors
after each to ensure that the individuals could still afford the defendant a fair trial. As above-noted,
the jurors affirmed each time that they could do so. In this situation the trial court did not abuse its
discretion by denying the defendant’s motion for a mistrial; thus, this issue lacks merit.


                                              Admission of Letters
        The defendant further complains that the trial court erred in allowing the State to admit three
letters written by the defendant to Gardner. According to the defendant, the trial court did not
conduct a proper hearing concerning relevancy prior to admitting the letters. Additionally, the
defendant asserts that the unfair prejudicial effect of these documents outweighed their probative


       10
            Since this was tried as a capital case, the jury was obviously present during sentencing.

                                                         -8-
value. To support this claim, the defendant points to the letters’ mention of threats against witnesses
and of gang activity. The defendant also alleges that the prosecution compounded the impact of the
error by repeatedly referring to the letters in closing argument.
         When dealing with the admission of evidence, the proposed proof must satisfy the threshold
determination of relevancy mandated by Tennessee Rule of Evidence 401. This rule defines relevant
evidence as that “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.”
Tenn. R. Evid. 401. Rule 403 adds that relevant “evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” Tenn. R. Evid. 403. And finally, Rule 404 deals with alleged “character evidence.”
Subsection (b) of this rule provides that “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity with the character
trait.” Tenn. R. Evid. 404(b). However, the same subsection further sets out that such evidence may
be allowed “for other purposes” if the following conditions are met prior to admission of this type
of proof:
        (1) The court upon request must hold a hearing outside the jury’s presence;
        (2) The court must determine that a material issue exists other than conduct
        conforming with a character trait and must upon request state on the record the
        material issue, the ruling, and the reasons for admitting the evidence; and
        (3) The court must exclude the evidence if its probative value is outweighed by the
        danger of unfair prejudice.

Tenn. R. Evid. 404(b). Providing further clarification concerning the second requirement, both the
Advisory Commission Comment to this rule and case law state that the above-mentioned “other
purposes” include issues such as motive, intent, etc. See, e.g., State v. Parton, 694 S.W.2d 299, 302
(Tenn. 1985); Bunch v. State, 605 S.W.2d 227, 229 (Tenn. 1980); State v. Jones, 15 S.W.3d 880,
894 (Tenn. Crim. App. 1999). Should a review of the record indicate that the trial court substantially
complied with the requirements of Rule 404(b), the trial court's admission of the challenged evidence
will remain undisturbed absent a showing that it abused its discretion in admitting this evidence.
State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997).
         As aforementioned, the contested evidence in the instant case involved three letters sent by
the defendant to Gardner. Through two of these the defendant implored Gardner to prevent Fleming,
White, and Lori Smith from testifying at the defendant’s trial. For example, the defendant instructed
Gardner to “[s]care them [sic] girls and threatened [sic] them so they wont [sic] show up in court”;
“[t]hem [sic] females got to go man ... take care of them [sic] females”; “[t]hreaten them but dont
[sic] let them no [sic] who you is [sic] ... do what you got to do”; etc. The second of these letters also
included proposed testimony for defense witnesses and brief mention of a gang. As an illustration
of the former, the “P.S.” portion of this letter contained the following suggestion: “You can say, Both
[sic] of us shot[.] I shot first and You [sic] shot second then that will confuse the court when you say
you shot.” Finally, in the third letter we find the defendant providing statements for Gardner, Henry
Campbell, Derrick Lewis, Eric Lewis, Johnny Martin, and Chris Lewis. The defendant instructed

                                                   -9-
Gardner to state that he “saw a guy pull up his shirt and reaching for his gun. [The defendant] went
beside Chris [sic] car why [sic] he was Intoxicated [sic] And [sic] Henry Campbell gave him a gun.
[The defendant] fire [sic] a shot and broke out running.” Chris Lewis and Henry Campbell’s
statements were to be similar to Gardner’s; however, Campbell was to also explain that Campbell
had given the defendant a gun “because I Felt [sic] like his life was in danger.” Thereafter in the
letter the defendant added: “The guys was [sic] saying threatening remarks to [the defendant] and
saying they was [sic] gon [sic] to kill him. If the lawyer asks who they Is [sic], name some dude
names.” Finally, according to the letter Eric Lewis and Johnny Martin were both to relate that “They
threaten [sic] to kill [the defendant] and to do bodily harm against him. Prior to the incident that
happen [sic], They [sic] witness [sic] and heard victims & associations [sic] discussing to do [the
defendant] bodily harm.”
         At trial before the State called its first witness, the lower court conducted a jury-out hearing
concerning all three letters. During this hearing the defendant originally argued that the letters were
irrelevant then noted that the letters may prove a separate offense. In ruling on the matter, the trial
judge looked to State v. Maddox for guidance. See State v. Maddox, 957 S.W.2d 547 (Tenn. Crim.
App. 1997). Based upon the content of these letters, the trial court found that therein the defendant
had 1) admitted to shooting; 2) tried “to fabricate testimony”; 3) acknowledged “that he was fixing
to get into it” before the event, thereby reflecting premeditation; 4) evidenced a desire to threaten
witnesses in order to prevent them from testifying; and 5) provided scripts from which certain
witnesses were to testify.11 Within his ruling the trial judge also found that the letters were not
unfairly prejudicial and were probative. Concerning the references to a gang, the trial court
announced that these would have to be deleted unless testimony made them relevant. As the trial
progressed, the court determined that their relevance had been shown and that the references were
not unfairly prejudicial. The court, thus, concluded that the letters did not have to be redacted.
         Our analysis of this issue begins with the defendant’s allegation that the trial court did not
conduct an appropriate hearing concerning the letters’ relevancy. We agree with the lower court’s
determination that the letters met the relevancy requirements of Rule 401 in several respects. See
Tenn. R. Evid. 401.
         The defendant has also failed to persuade this Court that the trial court committed error in
determining that the risk of unfair prejudice outweighed the probative value of this proof. As
aforementioned, the lower court relied heavily on State v. Maddox in making its decision to admit
the letters. Maddox presented a situation in which the defendant Maddox12 had arguably threatened
a witness through a letter. Maddox, 547 S.W.2d at 552. However, this letter also made an unclear
reference to an unresolved charge and discussed a plan to rob a Dunkin Donuts. Id. Among other
things a second letter also mentioned “the doughnut place.” Id. The planned robbery was particularly
problematic since it involved the same type of offense for which the defendant was being tried. Id.
Moreover, the lower court in Maddox did not conduct the necessary 404(b) hearing as above-
outlined. See id.; Tenn. R. Evid. 404(b). Based upon these and other errors, this Court reversed


         11
           The trial court observed , how ever, that the jury could ma ke the dec ision w hether the scripts w ere ac tually
false accounts of what had transpired.

         12
              Madd ox h ad a c o-defendan t, Nolan G . Pankey , in this case. See Maddox, 957 S.W.2d at 547.

                                                           -10-
Maddox’s conviction.13 See Maddox, 957 S.W.2d at 553, 556-57. However, for our purposes it is
important to note that the Maddox Court specifically addressed the threatening portions of the letter
and found them admissible and relevant under the guidelines of Rule 404(b). See id. at 551-52. To
support this conclusion, the Court cited precedent providing that “[a]ny attempt by an accused to
conceal or destroy evidence, including an attempt to suppress the testimony of a witness, is relevant
as a circumstance from which guilt of the accused may be inferred.” Maddox at 552 (quoting Tillery
v. State, 565 S.W.2d 509, 511 (Tenn. Crim. App. 1978); see also State v. Alfonzo Williams, No.
W2001-00452-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 234, at *11 (Tenn. Crim. App. at
Jackson, Mar. 15, 2002) app. for perm. to appeal filed (Tenn. May 14, 2002). Based upon this
rationale, the threatening portions of the letters were appropriately admitted as inferences of guilt.
Moreover, in its findings the trial court specifically noted that the danger of unfair prejudice did not
outweigh the probative impact of this evidence. We find that the defendant has failed to show an
abuse of discretion in the trial court’s decision to allow this proof. See State v. Donald K. Moore,
No. 01C01-9801-CR-00032, 1999 Tenn. Crim. App. LEXIS 361, at *22-*26 (Tenn. Crim. App. at
Nashville, Apr. 20, 1999).
         We further note that the defendant’s challenge to the gang related evidence likewise fails.
Before these letters were admitted, two witnesses had testified, without objection, that someone had
stated “LMGK” (“Lemoyne Garden Killer”) and “VLK” (“Vice Lord Killer”) immediately prior to
the shots’ being fired. As such, it is arguable that the defendant waived a challenge to this type of
proof. See Tenn. R. App. P. 36(a). However, even if this issue were not waived, testimony
concerning gangs is permissible in trials wherein the proof meets the requirements of the
aforementioned Tennessee Rules of Evidence 401, 403, and 404. See State v. G’Dongalay Parlo
Berry, No. M1999-00824-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 847, at *35-*39 (Tenn.
Crim. App. at Nashville, Oct. 19, 2001), perm.to appeal denied (Tenn. Mar. 4, 2002); State v. Johnie
Jefferson, No. W1999-00747-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 827, at *27-*30 (Tenn.
Crim. App. at Jackson, Oct. 12, 2001), app. to perm. to appeal filed (Tenn. Nov. 7, 2001). The brief
references within the letters to a gang were arguably relevant to motive under the facts presented,
and the probative value of this evidence was not outweighed by the danger of unfair prejudice.
         Lastly, the defendant complains “that the State . . . compounded the error by making repeated
reference to the letters during closing argument and discussing [them] as evidence of gang action and
other crimes.” In view of our above findings, we determine that the State could properly mention the
content of these letters in closing to argue the inference of guilt, presence of motive, etc. However,
even if some of the prosecution’s comments had been improper, the defendant raised no
contemporaneous objection at any time during closing. We, therefore, find that this portion of the
issue has been waived. See Tenn. R. App. P. 36(a); see also State v. Little, 854 S.W.2d 643, 651
(Tenn. Crim. App. 1992).
         In sum, we find none of the defendant’s contentions relative to the admission of the letters
worthy of relief. This issue, thus, lacks merit.




       13
            The Co urt, neverth eless, affirmed the con viction of M add ox’s co-d efendant. See id. at 557.

                                                          -11-
                                  Improper Closing Argument

        Through his final complaint the defendant avers that the prosecution improperly commented
in closing on a witness mentioned by the defense in its opening statement but not called during trial.
The defendant’s attack is somewhat unclear but appears to be that the State “essentially shift[ed] the
burden” of proof to the defendant. To bolster this claim, the defense cites cases concerning
comments on a defendant’s choice not to testify and cases regarding a party’s mention of “an absent
witness.”
        Factually, the record discloses that the defense announced the following during its opening
statement: “Now, you will hear testimony, I believe, from Tiffany White and Lori Smith . . . . Lori
Smith will testify, I believe, that several people were armed and several fired weapons.” In response
on closing, the prosecution stated as follows:
        The judge is going to instruct you in a few minutes what the law is in this case.
        You’ve heard the evidence from the witness stand. The evidence is what and who
        you heard from. Evidence is not who didn’t testify. . . . Mr. Nance got up and said the
        proof is going to show you that at least one of the witnesses identified four people
        with guns. Everybody had guns. I don’t think we heard that. You’re the triers of fact
        but I don’t think any witnesses got on the stand and said that. I think he said that Ms.
        Lori Smith was going to say that. I don’t think she testified. But you use your own
        memories.

During its second closing argument, the State added:
       And, you know, opening statements are where you stand up and you say, [“L]adies
       and gentlemen, we expect the proof the show this[”] and you go through it. But you
       better make sure what you say is going to happen or it’s going to come back to haunt
       you. Isn’t it? If I got up and said it and it didn’t happen, [the defense attorneys]
       would be the first one[s] ringing the bell. [“The prosecutor] promised you this.
       Where was it?[”]
       What did they promise? [“]Well, we expect you’ll hear from a witness named Lori
       Smith who’s going to say there were four people out there shooting guns.[”] . . . They
       wanted you to think that somebody was going to come in here and say, [“]I saw four
       different people shooting and it was chaos[. I]t was the OK Corral.[”] But what did
       you hear? Every single eye witness said [the defendant] was the only person shooting.


        At no point did the defense object to these comments. In view of this, we find that the
defendant has waived this issue. See Tenn. R. App. P. 36(a); Little, 854 S.W.2d at 651. However,
even if not waived, this allegation would not merit reversal.
        The logical inference drawn from these remarks is that the prosecution wished to highlight
the fact that a defense theory involving other shooters had never manifested itself in proof not that
the defendant did not testify. Though the defense has no duty to put on proof, it had placed this
account before the jurors in its opening statement. Furthermore, even assuming arguendo that the



                                                -12-
prosecutor's comment could be considered as some vague reference to the defendant's electing not
to take the stand, the trial court clearly later instructed the jury that:
        The defendant has not taken the stand to testify as a witness but you shall place no
        significance on this fact. The defendant is presumed innocent and the burden is on
        the state to prove the defendant’s guilt beyond a reasonable doubt. The defendant is
        not required to take the stand in his own behalf and his election not to do so cannot
        be considered for any purpose against him, nor can any inference be drawn from such
        fact.

The law presumes that juries follow the instructions they receive absent clear and convincing proof
to the contrary. See State v. Vanzant, 659 S.W.2d 816, 819 (Tenn. Crim. App. 1983). Under all of
these circumstances we see no basis for reversal. See, e.g., State v. Copeland, 983 S.W.2d 703, 708-
09 (Tenn. Crim. App. 1998).
         We next address the defendant’s contention that the trial judge improperly permitted the State
to present a missing witness argument during its closing. It is well settled that, “[a]s a predicate for
comment on a missing witness, the evidence must show that the witness had knowledge of material
facts, that a relationship exists between the witness and the party that would naturally incline the
witness to favor the party and that the missing witness was available to the process of the Court for
the trial.” Delk v. State, 590 S.W.2d 435, 440 (Tenn. 1979).
         Applying this standard to the instant case, we determine that Lori Smith would not have
qualified as a missing witness. Though the defense itself argued that the witness had knowledge of
material facts, no showing was made of the latter two criteria. Nevertheless, the trial court’s
instructions to the jury clearly provided that the State must bear the burden of proving each element
beyond a reasonable doubt and also delineated between what constituted evidence and what was
merely argument. In view of this and considerations such as the strength of the case against the
defendant, even if error these statements are harmless. See, e.g., State v. Jack Thomas Norris, No.
03C01-9704-CR-00137, 1999 Tenn. Crim. App. LEXIS 330, at *16-*19 (Tenn. Crim. App. at
Knoxville, Apr. 9, 1999), perm. to appeal denied (Tenn. Oct. 25, 1999); Judge v. State, 539 S.W.2d
340, 344-46 (Tenn. Crim. App. 1976).
         In sum, we find that the defendant waived this issue as a whole by failing to make a
contemporaneous objection to the statements during the prosecution’s closing argument. However,
even if not waived, we conclude that the rationales presented provide no basis for relief.


                                             Conclusion

        For the foregoing reasons we find that none of the issues raised merit reversal. Accordingly,
the judgment of the trial court is AFFIRMED.

                                                        ___________________________________
                                                        JERRY L. SMITH, JUDGE




                                                 -13-
