        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                              December 15, 2009 Session

              STATE OF TENNESSEE v. ROBERT LEE MILLER

              Direct Appeal from the Criminal Court for Carter County
                       No. S17033     Robert E. Cupp, Judge




              No. E2008-01945-CCA-R3-CD - Filed November 17, 2010


The appellant, Robert Lee Miller, was found guilty of the first degree murder of the victim,
Krystal Dubuque, during the perpetration of an aggravated rape, and he was sentenced to life
imprisonment in the Tennessee Department of Correction. On appeal, the appellant argues

              1. that the trial court erred in admitting a videotaped interview
              of the appellant dressed in his prison uniform;

              2. that the trial court should have excluded the testimony of
              Rodney Perkins identifying the appellant as the person he saw
              near the victim’s car;

              3. that the trial court erred in not granting a mistrial when the
              State disclosed that recent blood testing had revealed that blood
              in the victim’s underwear was not that of the appellant;

              4. that the trial court erred in not granting the appellant’s
              motion for a judgment of acquittal pursuant to Rule 29 of the
              Tennessee Rules of Criminal Procedure;

              5. that the trial court erred in permitting the introduction of
              prior act evidence regarding the appellant’s dealings with other
              women and specifically regarding statements about his desire to
              be sexually involved with the victim;

              6. that the trial court erred in not suppressing all statements
              made by the appellant as they were obtained in violation of his
              right to counsel as secured by the Tennessee State Constitution
                Article I, Section 9 and Amendments Five and Six of the U.S.
                Constitution; and

                7. that the appellant’s right to a speedy trial was violated.

Upon review, we affirm the judgment of the trial court. However, we must remand to the
trial court for entry of a corrected judgment of conviction to reflect the appellant’s guilt of
count one, felony murder, instead of count two, premeditated first degree murder.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and J AMES C URWOOD W ITT, J R., J., joined.

Clifton L. Corker, Johnson City, Tennessee, for the appellant, Robert Lee Miller.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; Anthony Wade Clark, District Attorney General; and Kenneth C. Baldwin, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                     I. Factual Background

        At trial, the evidence adduced revealed that in January 2004, the twenty-two-year-old
victim began working for the appellant, who was a bounty hunter and also did some
surveillance work. The victim was not the first young woman to work with the appellant. In
fact, the appellant would find young women he thought “look[ed] hot” and offer them money
and health insurance to work for him. The appellant laughed about his intention to not pay
them and said “he’d end up getting some off of them.” Specifically, while the victim worked
for the appellant, he told at least two people of his desire to have sex with the victim.
However, none of the victim’s friends believed there was a sexual relationship between the
appellant and the victim.

       Around the time the victim began working with the appellant, she and her young son
were living with Dwayne and Jessica Williamson.1 At approximately 6:45 p.m. on February


       1
           When the victim was living there, Dwayne and Jessica Williamson were dating; however, they
                                                                                         (continued...)

                                                 -2-
15, 2004, the Williamsons returned to their apartment after being out most of the day. The
victim had cooked supper, which included chicken, potatoes, and peas and was planning to
work with the appellant that evening. The Williamsons tried to convince the victim not to
work that evening because the weather was bad and the roads were slick with snow.
However, the victim, who had a partially completed check the appellant had given her,
wanted to work that evening so the appellant would pay her for the three weeks she had
worked.

       At approximately 8:30 or 8:45 p.m., the appellant came to the Williamsons’ apartment
to pick up the victim. Dwayne Williamson, who was babysitting the victim’s son, saw the
victim leave the apartment parking lot in her red 1988 Chevrolet Nova. The appellant was
following her in a black, late-model Suburban. The Williamsons never saw the victim again.

         Sometime between 8:00 and 10:00 p.m. on February 15, 2004, the victim stopped at
a Sunoco gas station and purchased two or three gallons of gas. The victim’s red Nova was
left in the gas station parking lot but was gone by 11:00 p.m.

       Around 11:45 p.m., the appellant called Dwayne Williamson, asking if the victim had
returned home. The appellant said that he had dropped off the victim two hours earlier at a
Sunoco gas station parking lot. Dwayne Williamson told the appellant he would go out
looking for the victim; however, he was unable to find her. The appellant called several
times during the night to check on the victim. The appellant said that he had been out
looking for the victim until about 3:00 a.m.

        Julie Robertson, an employee of Greystoke Chevrolet, testified that around the time
of the victim’s disappearance, the appellant had taken a black Chevrolet Suburban valued at
$25,000 for a four-day test drive. The appellant had promised to pay for the vehicle with a
check. When the appellant returned the vehicle at around 10:00 a.m on February 16, 2004,
he told Robertson that the inside of the vehicle should be cleaned before he purchased it.
Later that day, the appellant called to ask what type of “cleaning agent” had been used on the
Suburban’s interior. The appellant never purchased the vehicle or asked about it again.

        On February 18, 2004, two men were fishing in the Watauga River. One of the men
noted that the water had risen when “they” had been “generating” the night before, but it was
down that morning. The men looked over to the side of the river, saw the victim’s body
partially in the river, and called 911 to report it.



        1
            (...continued)
were married at the time of trial.

                                             -3-
        The county coroner, Johnny Miller, and Dr. Greta Stephens,2 the medical examiner,
arrived on the scene around 2:00 p.m. When Dr. Stephens arrived, the victim was already
in rigor mortis with her knees slightly bent and one arm flexed above her head. Dr. Stephens
concluded that the victim went into rigor mortis somewhere other than where she was found.
Dr. Stephens observed that the victim’s hair was across a branch, indicating that the victim’s
body had once been immersed in water and her hair stayed over the branch when the water
receded.

        Dr. Stephens oversaw the victim’s body being placed in a body bag. Dr. Stephens told
people at the scene that when the victim’s mother identified the body, only the victim’s face
should be exposed; the body was not to be further disturbed and was to be transported
directly to Dr. Stephens’ office. Miller did not hear Dr. Stephens’ directive, and he removed
the victim’s socks and shoes, raised her pants’ legs, raised her shirt, and unfastened her belt
and her pants to look for any visible wounds. The body was then taken to Sycamore Shoals
Hospital where it was x-rayed before being transported to Dr. Stephens’ office.

       Dr. Stephens performed an autopsy on the victim’s body on February 19, 2004. Later,
Dr. William McCormick, a forensic pathologist, also examined the autopsy results, including
photographs of and slides taken from the body.3 The autopsy revealed that the victim was
a small woman, five feet, one and a half inches tall and approximately ninety pounds. The
doctors noted that the victim had several abrasive injuries to her face, some of which were
probably caused postmortem by floating face-down across the river bed. However, an
abrasion to the underside of the victim’s nose appeared to be a “rug burn” which was likely
not caused by being in the river. Additionally, there was a scrape on the victim’s elbow
which, in the doctors’ opinions, was not caused by being in the river. They explained that
the victim was found wearing a long-sleeved sweatshirt which covered her elbows.

        Sperm heads were found in the victim’s anus. Dr. Stephens noted that the anus is a
bacteria-laden region and that it is rare for sperm to exist for long in that area. Sperm with
intact tails were found in the victim’s vagina. Dr. Stephens opined that the cold environment,
namely the river in February, helped to preserve the sperm.

       The autopsy revealed “mechanical force tears” to the victim’s anus. Also, the anus
was dilated more than what normally occurs with relaxation of the sphincter muscle after
death. Additionally, there were tears to the victim’s vagina and fresh “[b]lunt mechanical
trauma” inside the victim’s body cavity, specifically to the adnexa, an area encompassing the


       2
           At trial, Dr. Stephens was qualified as an expert in forensic pathology.
       3
           At trial, the parties stipulated that Dr. McCormick was an expert in forensic pathology.

                                                    -4-
ovaries and fallopian tubes. Dr. McCormick explained that “[t]he anus will tear with a great
deal less force than the vagina. The vagina was constructed to dilate . . . a great deal.” Dr.
McCormick believed the injuries to the anus and vagina were “caused by relatively severe,
forceful, blunt trauma,” which occurred from an “instrument,” such as a penis, being inserted
into the victim’s vagina and anus “with very considerable force,” exceeding what would be
expected during “normal sex.” Dr. McCormick acknowledged that an object other than a
penis, such as a broom handle, could have caused the injuries; however, he stated, “We do
know from the autopsy report . . . what it probably was . . . because sperm were found, and
I’ve never seen sperm come from a broom handle.”

      The doctors noted that slides of the injuries, one each from the anus, vagina, and
adnexa, showed no evidence of inflammatory response. The doctors opined that this lack of
inflammatory response, indicated that the injuries occurred approximately thirty minutes to
an hour before the time of death. While the victim lived, the tears would have bled an
amount comparable to a typical menstrual flow.

         The victim’s gastric contents consisted of 170 milliliters of food, including peas; a
pale, stringy meat; white potatoes; and cheese. Dr. Stephens said that the average person’s
stomach will empty completely within two to four hours of finishing a meal; therefore, the
findings indicated that the victim died before her stomach emptied. Given that the victim
was a healthy young woman who had not ingested alcohol or drugs, Dr. McCormick opined
that if the victim had finished her meal at 7:00 p.m., she died around 8:30 to 11:00 p.m.

       Dr. Stephens found mild bleeding in the area of the neck and a small bruise to the
neck muscles located behind the larynx. She also found petechia in the victim’s eyes and
scalp, which suggested suffocation. Dr. Stephens interpreted these findings to be consistent
with “impact compression” or movement while the area was being compressed. Specifically,
she said the findings were consistent with the victim “being sodomized and vaginally
assaulted from behind in a vehicle with carpet, and her head is being held and pushed down
into that carpet while that act of sodomy and rape is going on.” Dr. Stephens believed the
hypothetical scenario could also account for the “rug burn” on the victim’s nose.

        Hair samples collected from the victim were consistent with hair from the victim and
with hair from the appellant. Additionally, the sperm collected from the victim was the
appellant’s. However, no forensic evidence could be retrieved from the Suburban because
it had been cleaned. Also, no usable forensic evidence was retrieved from the victim’s car.

        Linda Marcum, a private investigator hired by the victim’s family, discovered pieces
of a torn check along the river near the Bee Cliff Cabins. Marcum informed police about the
check, and the police retrieved the check. The check was from an account the appellant had

                                             -5-
closed more than two years earlier and was made payable to the victim. The check had never
been cashed. The appellant explained that he gave the victim a “flash check” to show
prospective landlords and that she knew the check was worthless. The appellant said that on
the night of February 15, 2004, the victim gave him back the check. He told her to tear it up;
she complied and threw it out the window while they were driving near Bee Cliff Cabins.

        During the investigation, the appellant gave numerous, conflicting statements about
the victim. Notably, the appellant and his wife placed numerous calls to Investigator Hamm,
Chief Parrish, Officer Michael Peters, Investigator Joe Woodard, and a local television news
station. The appellant initially stated that he and the victim did not have a sexual relationship
and that on the night in question he dropped her off at the Sunoco when the weather got too
bad and that he watched the victim drive away. Eventually, the appellant said that he and the
victim were having an affair, and he estimated they had intercourse ten times.

       The appellant also claimed that he, the victim, and Erin Snead were together at the
Bee Cliff Cabins on the night of February 15, 2004, and that Snead got mad at the victim.
The appellant said that while they were at the cabins, the victim spoke with a man from North
Carolina who was renting one of the cabins and that she used the man’s restroom. Arthur
Franklin Reed, Jr., the man from North Carolina who was staying with his wife in Bee Cliff
Cabins on February 15, 2004, denied ever seeing a young lady that night. He specifically
denied anyone coming into his cabin that evening to use his restroom.

        The appellant said that after “huffing” an aerosol can, Snead and the victim went off
without him and that Snead later told him that they had accidentally driven the victim’s car
into the river. The appellant opined that Snead had something to do with the victim’s death.
However, both Snead and her mother asserted that Snead was home all day and night on
February 15, 2004.

        Later, the appellant maintained that when he returned home on the night of February
15, his wife accused him of sleeping with the victim. His wife left and returned later that
evening. The appellant said his wife did not act surprised when the victim’s car was found
in the river, and he believed his wife was involved in the victim’s death.

        The appellant’s ex-wife, Teresa Ann Miller,4 and his son, James Miller, testified that
the appellant came home around 10:00 or 10:30 p.m. on the night of February 15, 2004. They
said that the appellant never left home again that night. Teresa Miller acknowledged that the
appellant was very upset by the victim’s disappearance and death and that he would cry often
about it. Mrs. Miller also stated that the appellant was “obsessed with anal sex,” but he knew

       4
           They were married at the time of the offense, but they were divorced at the time of trial.

                                                    -6-
that with her “he can’t go there.” She conceded that her refusal to engage in anal sex with
the appellant was a “big problem” between them.

        The appellant employed Dr. Donald Jason, a forensic pathologist and professor at
Wake Forest University. Dr. Jason questioned the findings of Dr. Stephens and Dr.
McCormick. Specifically, Dr. Jason stated that the tearing of the victim’s anus and vagina
could have been a “postmortem artifact” exacerbated by tugging of the area during an
examination of the body. He also noted that the tears could appear worse than they actually
were because the skin was “waterlogged” from extended submersion in water. He opined
that intent could not be determined by the extent of the injuries. Dr. Jason noted that gastric
emptying typically occurs within four to six hours, and, therefore, he could not say with
reasonable certainty that the victim died within two hours of eating.

        A defense witness, Rodney Perkins, testified that on the morning of February 16,
2004, he got to work at Snap-On Tools around 4:45 a.m. He looked around for trucks
bringing a scheduled steel delivery; however, he saw no vehicles around. At approximately
5:30 or 5:45 a.m., Perkins heard gravel crunching and believed his delivery had arrived. He
looked out and saw someone wearing a heavy coat and a toboggan or hood walking across
the bridge. Around 7:45 a.m. on February 16, 2004, the victim’s red Nova was discovered
in the Watauga River. The engine was running, and the driver’s seat was pushed back as far
as it would go. There were no marks indicating that the brakes had been applied prior to the
car coming to rest in the river. Perkins testified that during the trial he had the opportunity
to watch the appellant walk. He stated that due to the appellant’s distinctive walk, he could
identify the appellant as the man crossing the bridge that morning.

        Based upon the foregoing, the jury found the appellant guilty of first degree murder
of the victim during the perpetration of an aggravated rape. The trial court sentenced the
appellant to life with the possibility of parole. On appeal, the appellant raises numerous
issues, which we will address in turn.

                                         II. Analysis

                                 A. Admission of Videotape

        The appellant contends that the trial court erred by “admitting a videotaped interview
of the [appellant] conducted by law enforcement which depicted him in his prison uniform.”
Generally, a trial court’s decision to admit or exclude evidence at trial will not be overturned
absent an abuse of discretion. State v. James, 81 S.W.3d 751, 760 (Tenn. 2002). An abuse
of discretion exists when the “‘court applied an incorrect legal standard, or reached a
decision which is against logic or reasoning that caused an injustice to the party

                                              -7-
complaining.’” State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999) (quoting State v. Shuck,
953 S.W.2d 662, 669 (Tenn. 1997)).

       The appellant does not contend that the videotaped interview was not relevant. See
Tenn. R. Evid. 401 (defining relevant evidence as “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”); see also Tenn. R. Evid.
402 (providing that “[a]ll relevant evidence is admissible except as [otherwise] provided”).
Instead, the appellant argues that it was prejudicial for the jury to observe him “dressed in
prison garb” during the videotaped interview. Essentially, the appellant’s argument is a
challenge under Tennessee Rule of Evidence 403, which provides that 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 the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.” See also State
v. Taylor, 240 S.W.3d 789, 795 (Tenn. 2007).

        In support of his argument, the appellant cites Estelle v. Williams, 425 U.S. 501,
504-05 (1976), in which the United States Supreme Court stated that forcing a defendant to
stand trial while wearing prison clothes is a due process violation because “the constant
reminder of the accused’s condition implicit in such distinctive, identifiable attire may affect
a juror’s judgment.” This court has also stated that “trial courts should take every precaution
to avoid the display of the accused, who stands presumptively innocent, in prison garb or any
type of restraint which reflects their custodial status.” State v. Doreen Jones, No.
M2003-01942-CCA-R3-CD, 2005 WL 639141, at *10 (Tenn. Crim. App. at Knoxville, Mar.
18, 2005).

        However, the appellant was not “tried” while wearing prison attire; he was simply
shown in prison attire during a twenty-minute videotaped interview of his statement to police,
a brief span of time during the appellant’s six-day trial. Moreover, the jury had already been
repeatedly informed by defense counsel that the appellant had been held in jail because he
could not make bond. The trial court gave a limiting instruction after the videotape was
played, instructing the jury to place no significance on the appellant’s appearance “in inmate
clothing.” We conclude that the video’s probative value was not substantially outweighed
by the danger of unfair prejudice. See Tenn. R. Evid. 403. Therefore, like the court in
Taylor, we conclude “that the brief videotape of the [appellant] wearing jail attire in this case
did not serve as a ‘constant reminder’ to the jury that the [appellant] had been previously
jailed and it did not corrupt the presumption of innocence on which the jury was properly
instructed.” Taylor, 240 S.W.3d at 797.

                                    B. Perkins’ Testimony

                                               -8-
       The appellant contends that the trial court erred in allowing Rodney Perkins, a defense
witness, to testify that the person he observed walking on a bridge near the area where the
victim’s car was discovered walked like the appellant. The appellant argues that this
testimony constituted a violation of Tennessee Rule of Evidence 602, which provides:

              A witness may not testify to a matter unless evidence is
              introduced sufficient to support a finding that the witness has
              personal knowledge of the matter. Evidence to prove personal
              knowledge may, but need not, consist of the witness’s own
              testimony. . . .

We note that this rule of evidence is “[a]lso called the ‘first-hand knowledge rule,’ [and
essentially] provides that a witness is not competent to testify unless he perceived the facts
through one or more of the five senses.” State v. Boling, 840 S.W.2d 944, 949 (Tenn. Crim.
App. 1992).

       This court has previously explained:

              In determining whether a witness is competent for purposes of
              Rule 602, the trial court must determine whether a witness had
              a sufficient opportunity to perceive the subject matter about
              which he or she is testifying. Thus, the party offering the
              testimony must introduce sufficient evidence to support a jury
              finding that the witness had personal knowledge of the matter.

                     While the rule fails to define what constitutes
              “knowledge,” the rule does not require “absolute certainty.”
              Nevertheless, the witness/declarant’s statement may not be
              based on mere speculation.

State v. Land, 34 S.W.3d 516, 529 (Tenn. Crim. App. 2000) (quoting Neil P. Cohen et al.,
Tennessee Law of Evidence, § 602.4, p. 313-14 (3rd ed. 1995)).

       Perkins was called as a witness for the defense to dispute the State’s time-line of
events. On cross-examination, the prosecuter mentioned a conversation he had with Perkins
in the hallway during trial. Perkins acknowledged for the first time, that he believed the
appellant was the person he saw walking from the area where the victim’s car was found.
Upon further questioning, Perkins said he believed the person was the appellant because of
“the way he was carrying himself and the way he walked.” Defense counsel objected to

                                              -9-
Perkins’ testimony. The trial court overruled the objection, noting that the prosecution was
asking justifiable questions on cross-examination and that Perkins was allowed to form an
opinion about the identity of the person he saw crossing the bridge that morning.

      As cross-examination continued, Perkins stated that the man on the bridge that
morning had a “walk that was different from a normal person’s walk.” He explained that he
had an opportunity to observe the appellant during the trial, and during the previous trial
which had resulted in mistrial, and that he noticed the appellant had the same, distinctive
walk.

       Perkins’ testimony was undeniably relevant to establish the identity of the person who
arguably placed the victim’s car in the river. Perkins positively identified that person as the
appellant, based on the distinctive way the appellant walked. Perkins said he had ample
opportunity during the trial, and during a previous trial which resulted in mistrial, to observe
the appellant’s walk, and he determined that the person on the bridge walked the same way.
Generally, “[q]uestions concerning a witness’s identification of a defendant go to the weight
and credibility of his testimony and not to the admissibility of the testimony.” State v.
Robinson, 971 S.W.2d 30, 45 (Tenn. Crim. App. 1997). Therefore, we conclude that the jury
was entitled to consider this testimony and attribute whatever weight it deemed appropriate.

                                         C. Mistrial

        The appellant maintains that the trial court “erred in not granting a mistrial when the
State revealed that the blood in the victim’s underwear was not that of the [appellant] when
they had previously been advised that it was.” On the day the appellant’s first trial resulted
in a mistrial, the State advised defense counsel that the State was going to pursue additional
forensic testing on the physical evidence. On May 3, 2007, the prosecutors and defense
counsel learned that recent testing by the Tennessee Bureau of Investigation (TBI) crime
laboratory had identified the appellant’s blood on the victim’s panties. On May 6, 2007, the
second day of trial, the appellant moved for a continuance to investigate this evidence, but
the trial court denied the motion, finding that the evidence supported both the State’s theory
of forcible penetration and the appellant’s defense that he and the victim engaged in “rough
sex.”

        Subsequently, on May 10, 2007, TBI Special Agent Chad Johnson testified about
testing done on various items collected from the victim and the appellant. However, he did
not testify about blood on the victim’s panties. At the conclusion of Agent Johnson’s direct
examination, the State requested a bench conference. At that time, the State informed the
court and defense counsel that although Agent Johnson believed the stain on the victim’s
panties to be the appellant’s blood, he could not say so definitively. The State explained that

                                              -10-
Agent Johnson thought he might be “picking up DNA from sperm that might have been
entangled in that area, so I’m not going to ask him about that.” Defense counsel did not raise
any objection. The State’s case continued, with over a dozen witnesses called prior to the
issue being raised again.

        The next day, May 11, 2007, defense counsel advised the court that “after further
reflection” he needed to move for a mistrial based upon the misinformation he received about
the appellant’s blood being on the victim’s panties. Defense counsel stated that he believed
that the State acted “innocently enough,” but he contended that if the blood were the victim’s,
it would support the defense theory that she was alive and walking around after the sexual
encounter with the appellant. The prosecutor said that he had been informed that the stain
was not the victim’s blood. The trial court found that there was no evidence in front of the
jury about blood on the victim’s panties. Moreover, the court stated that the evidence was
not exculpatory and was not inconsistent with the appellant’s theory that he and the victim
engaged in rough sex. Therefore, the court overruled the motion for mistrial.

        On appeal, the appellant contends that the belief that the appellant’s blood was on the
victim’s panties “affected how the case was handled.” Accordingly, he argues that there was
a manifest necessity for a mistrial. The State argues that the appellant waived this issue by
failing to make a contemporaneous motion for mistrial. Regardless of any timeliness issues,
the appellant is not entitled to relief on this issue.

        A mistrial should be declared in criminal cases only in the event that a manifest
necessity requires such action. State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App.
1991). In other words, a mistrial is an appropriate remedy when a trial cannot continue or
a miscarriage of justice would result if it did. State v. McPherson, 882 S.W.2d 365, 370
(Tenn. Crim. App. 1994). The decision to grant a mistrial lies within the sound discretion
of the trial court, and this court will not interfere with the exercise of that discretion absent
clear abuse appearing on the face of the record. See State v. Hall, 976 S.W.2d 121, 147
(Tenn. 1998) (citing State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990)). Moreover, the
burden of establishing the necessity for mistrial lies with the party seeking it. State v.
Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996).

         Although the appellant argues that the misinformation about the stain “affected how
the case was handled,” he has failed to demonstrate in what way. As the trial court noted,
if the stain was the appellant’s blood, that evidence supported theories espoused by both the
State and the appellant. Further, discovering that the stain could not conclusively be said to
be the appellant’s blood did not affect the case, especially as the jury was never informed
about the stain. Therefore, the trial court did not abuse its discretion in denying the
appellant’s motion for mistrial.

                                              -11-
                               D. Sufficiency of the Evidence

       The appellant contends that the trial court “erred in not granting the [appellant’s]
motion for a judgment of acquittal pursuant to Rule 29 of the [Tennessee Rules of Criminal
Procedure].” The appellant argues that the State failed to prove that the appellant committed
the aggravated rape of the victim, contending that, at most, the State established that the
appellant and the victim had consensual “rough sex.” Additionally, the appellant maintains,
“There was no evidence that [the victim] died while being raped.”

        The record reveals that at the conclusion of the State’s proof, the appellant made a
motion for judgment of acquittal. The trial court denied the motion. However, the appellant
renewed the motion at the close of all proof. A motion for judgment of acquittal is a question
of law; therefore, the trial court can only review the legal sufficiency, not the weight, of the
evidence. State v. Adams, 916 S.W.2d 471, 473 (Tenn. Crim. App. 1995). Accordingly,
“[t]he standard by which the trial court determines a motion for judgment of acquittal at the
end of all the proof is, in essence, the same standard which applies on appeal in determining
the sufficiency of the evidence after a conviction.” State v. Thompson, 88 S.W.3d 611, 614-
15 (Tenn. Crim. App. 2000). Thus, we will address the appellant’s complaint as a challenge
to the sufficiency of the evidence.

       On appeal, a jury conviction removes the presumption of the appellant’s innocence
and replaces it with one of guilt, so that the appellant carries the burden of demonstrating to
this court why the evidence will not support the jury’s findings. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). The appellant must establish that no reasonable trier of fact
could have found the essential elements of the offense beyond a reasonable doubt. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P. 13(e).

       Accordingly, on appeal, the State is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which may be drawn therefrom. See State v.
Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the
credibility of witnesses and 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, and not the appellate
courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

         Felony murder is defined as “[a] killing of another committed in the perpetration of
. . . any . . . rape.” Tenn. Code Ann. § 39-13-202(a)(2) (2003). Aggravated rape is defined
in pertinent part as the unlawful sexual penetration of a victim by the defendant or the
defendant by the victim when the defendant causes bodily injury to the victim. Tenn. Code
Ann. § 39-13-502(a)(2) (2003). Sexual penetration includes “sexual intercourse, cunnilingus,
fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s

                                              -12-
body or of any object into the genital or anal openings of the victim’s, the defendant’s, or any
other person’s body, but emission of semen is not required.” Tenn. Code Ann. §
39-13-501(7) (2003). This court has previously concluded that the term “unlawful” generally
refers to non-consensual acts. See State v. Jones, 889 S.W.2d 225, 227 (Tenn. Crim. App.
1994).

       This court has previously stated that

              for purposes of felony murder, the “killing may precede,
              coincide with, or follow the felony” but that the “intent to
              commit the underlying felony must exist prior to or concurrent
              with the commission of the act causing the death of the victim.”
              Whether the intent to commit the underlying felony existed prior
              to or concurrent with the killing is a question of fact for the jury
              to decide. The requisite intent cannot be presumed from the act
              of committing the felony, but “a jury may reasonably infer from
              a defendant’s actions immediately after a killing that the
              defendant had the intent to commit the felony prior to, or
              concurrent with, the killing.”

State v. Richard Cleveland Martin, No. M2007-02097-CCA-R3-CD, 2009 WL 1372287, at
*16 (Tenn. Crim. App. at Nashville, May 18, 2009) (quoting State v. Buggs, 995 S.W.2d
102, 106-08 (Tenn. 1999)), perm. to appeal denied, (Tenn. 2009).

        The proof at trial revealed that the victim ate around 7:00 p.m. on February 15, 2004,
and that she and the appellant left her apartment to go to work around 8:30 p.m. The State’s
expert witnesses estimated that the victim died two to four hours after eating. However, the
experts opined that the contents of the victim’s stomach suggested the victim’s death
occurred at the lower end of the range, two hours or less after eating. The appellant’s sperm
was found in the victim’s anus and vagina. Additionally, there were multiple tears to the
victim’s anus and vagina which Dr. McCormick stated could not be attributable to “normal
sex” as the penetration was with “very considerable force.” Dr. Stephens opined that the
victim’s injuries, including the “rug burns” to her face, were consistent with the victim’s
neck being held down into carpet while she was being sexually penetrated from behind.
Because the injuries to the victim’s anus and vagina were “fresh” and had no signs of
inflammation, the State’s experts opined that the wounds occurred as soon as thirty minutes
prior to the victim’s death. The victim died as a result of strangulation, which Dr. Stephens
explained could have been caused by compression of the victim’s neck. Additionally, the
appellant was seen leaving the victim’s car in the river the morning after the victim’s
disappearance. There was no evidence, outside of one of the appellant’s many conflicting

                                               -13-
versions of events, that the appellant and the victim had a sexual relationship. See State v.
Rice, 184 S.W.3d 646, 663-64 (Tenn. 2006). Moreover, the appellant had previously
expressed a desire to engage in an aggressive and rough sexual relationship with the victim.
We conclude that there was sufficient evidence for a jury to conclude the appellant killed the
victim during an aggravated rape.

                                    E. Prior Act Evidence

        The appellant argues that the trial court “erred in permitting the introduction of bad
act evidence regarding the [appellant’s] dealing with other women and specifically regarding
statements about his desire to be sexually involved with the victim.” At trial, Amber Barker
testified that the appellant “said [the victim] had a nice ass. . . . He would knock the bottom
out of it, out of her pussy.” The State then asked, “[D]id he talk about girls in general and
having sex with them and stuff like that?” Barker replied, “Yes, sir.” The appellant then
objected on the basis of relevance. The trial court overruled the objection. Barker further
testified that the appellant

               Talked about I believe it was a lady’s name, Erin, that he had ate
               her pussy on the hood of his car and that her ass cheeks was on
               the window and that he always preferred to eat girls’ pussy
               rather than actual have sex with them because his wife wouldn’t
               know that way, was the conversation.

The appellant did not object to the testimony about “Erin.”

        Later, the State called Ashley Norris as a witness. The appellant objected to Norris’
testimony, arguing, “This is the same kind of thing.” The trial court overruled the objection.
Norris testified that the appellant said the victim “had a nice ass and he’d beat it up if he ever
got a chance. And, you know, just talking about how he’d like to have sex with her and stuff
like that, perverted kind of like.” Norris stated that the conversation happened a week and
a half or two weeks prior to the victim’s disappearance. Norris testified that in November
2006, she got a letter from the appellant. She did not read the letter and later gave it to
police.

        As we have noted, the appellant objected to the testimony of Barker and Norris
regarding the appellant’s sexual comments about the victim and other females on the basis
that the statements were irrelevant under Tennessee Rule of Evidence 401. However, his
argument centered around “propensity,” which is essentially a complaint under Tennessee
Rule of Evidence 404(b). On appeal, he contends that the statements were inadmissible
under Tennessee Rule of Evidence 404(b), arguing that the statements were essentially

                                              -14-
“[e]vidence of other crimes, wrongs, or acts [which were] 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). Initially, we note that the appellant waived the issue regarding Barker’s
testimony about the appellant’s having sex with “Erin” by failing to contemporaneously
object to that testimony. See Tenn. R. App. P. 36(a) (providing that “[n]othing in this rule
shall be construed as requiring relief be granted to a party responsible for an error or who
failed to take whatever action was reasonably available to prevent or nullify the harmful
effect of an error”); Tenn. R. Evid. 103(a)(1).

      Regarding the other contested statements, we note that Tennessee Rule of Evidence
404 provides:

              (b) Other Crimes, Wrongs, or Acts. - Evidence 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. It may, however, be admissible for other purposes. The
              conditions which must be satisfied before allowing such
              evidence are:

              (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;

              (3) The court must find proof of the other crime, wrong, or act
              to be clear and convincing; and

              (4) The court must exclude the evidence if its probative value is
              outweighed by the danger of unfair prejudice.

See also State v. Thacker, 164 S.W.3d 208, 240 (Tenn. 2005), State v. Parton, 694 S.W.2d
299, 302 (Tenn. 1985). A trial court’s decision regarding the admission of Rule 404(b)
evidence will be reviewed under an abuse of discretion standard; however, “the decision of
the trial court should be afforded no deference unless there has been substantial compliance
with the procedural requirements of the Rule.” State v. DuBose, 953 S.W.2d 649, 652 (Tenn.
1997).



                                             -15-
        Generally, “[o]nly in an exceptional case will another crime, wrong, or bad act be
relevant to an issue other than the accused’s character. Such exceptional cases include
identity, intent, motive, opportunity, or rebuttal of mistake or accident.” State v. Luellen, 867
S.W.2d 736, 740 (Tenn. Crim. App. 1992). In making its decision regarding the admissibility
of the testimony, the trial court must first determine if the offered testimony is relevant to
prove something other than the appellant’s character.

       Baker and Norris’ testimonies about the appellant’s desire to have sex with the victim
were relevant to show the appellant’s intent to engage in sexual relations with the victim
similar to those which occurred just prior to her death. Accordingly, these statements were
admissible under 404(b).

                                F. Suppression of Statements

        As we stated earlier, beginning right after the victim’s disappearance and continuing
well into the appellant’s incarceration, the appellant and his wife made many statements to
detectives, officers, investigators, acquaintances, and reporters. The appellant argues that
the trial court erred in failing to suppress statements he made to police, arguing that the
police solicited the statements in violation of his Fifth and Sixth Amendment rights to
counsel. In reviewing a trial court’s determinations regarding a suppression hearing,
“[q]uestions of credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of
fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial court’s findings of fact
in a suppression hearing will be upheld unless the evidence preponderates otherwise.” Id.
Nevertheless, appellate courts will review the trial court’s application of law to the facts
purely de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). Furthermore, the
State, as the prevailing party, is “entitled to the strongest legitimate view of the evidence
adduced at the suppression hearing as well as all reasonable and legitimate inferences that
may be drawn from that evidence.” Odom, 928 S.W.2d at 23. Moreover, we note that “in
evaluating the correctness of a trial court’s ruling on a pretrial motion to suppress, appellate
courts may consider the proof adduced both at the suppression hearing and at trial.” State
v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

       First, we will address the appellant’s contention that his Fifth Amendment rights were
violated, requiring that his statements be suppressed. The facts pertinent to this issue are as
follows. At the suppression hearing, Investigator Hamm testified that the appellant and his
wife, Teresa Miller, called Investigator Hamm many times about the case, wanting to be
involved in the investigation. The record reflects that the calls started on February 16, 2004,
with two calls from Mrs. Miller to Investigator Hamm. Starting at 8:19 a.m. on February 17,
2004, Mrs. Miller and the appellant called Investigator Hamm and Chief Parrish multiple

                                              -16-
times. For instance, at 8:52 and 9:24 p.m., the appellant called and left voicemail messages
for Chief Parrish, asking him to return the appellant’s call. Additionally, Mrs. Miller left
Chief Parrish a voicemail message at 9:11 p.m., asking for a return call. At 9:34 p.m., the
appellant left a voicemail message for Investigator Hamm, requesting a call back.
Investigator Hamm returned the appellant’s call at 9:40 p.m.

        Shortly thereafter, Mrs. Miller called Investigator Hamm. During that call, Mrs. Miller
said that “Crockett [an attorney] said he preferred him to be present when you talk to him
[the appellant].” She then stated that they would “wait until tomorrow” to speak with police.
Investigator Hamm told Mrs. Miller that he would talk with Chief Parrish and that she or the
appellant could call Investigator Hamm the next day or he would call them. Mrs. Miller
agreed with that plan. Later that same day, Chief Parrish called the appellant, and they
discussed the victim’s disappearance. Chief Parrish asked if the appellant was involved in
the victim’s disappearance or if he knew anyone that would be involved in the disappearance.
The appellant denied any knowledge about the disappearance. The appellant was very
involved in the conversation and began crying.

        The appellant alleges that Chief Parrish’s call to him on February 17, 2004, violated
his right to counsel which was invoked by his wife stating that “Crockett [an attorney] said
he preferred him to be present when you talk to him [the appellant].” Therefore, the
appellant contends that the dozens of statements later given by him should be suppressed.

       Generally, the Fifth Amendment to the United States Constitution and article I, section
9 of the Tennessee Constitution provide a privilege against self-incrimination to those
accused of criminal activity, making an inquiry into the voluntariness of a confession
necessary. See State v. Callahan, 979 S.W.2d 577, 581 (Tenn. 1998). As our supreme court
has explained:

              In Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612,
              16 L. Ed. 2d 694 (1966), the United States Supreme Court held
              that “the prosecution may not use statements, whether
              exculpatory or inculpatory, stemming from custodial
              interrogation of the defendant unless it demonstrates the use of
              procedural safeguards effective to secure the privilege against
              self-incrimination.” The procedural safeguards must include
              warnings prior to any custodial questioning that an accused has
              the right to remain silent, that any statement he makes may be
              used against him, and that he has the right to an attorney.




                                             -17-
State v. Blackstock, 19 S.W.3d 200, 207 (Tenn. 2000). Miranda warnings are necessary only
in situations involving custodial interrogation or its functional equivalent. See, e.g., Rhode
Island v. Innis, 446 U.S. 291, 300-01 (1980); State v. Dailey, 273 S.W.3d 94, 102-03 (Tenn.
2009). In determining whether a suspect is in custody for Miranda purposes, we must
consider “whether, under the totality of the circumstances, a reasonable person in the
suspect's position would consider himself or herself deprived of freedom of movement to a
degree associated with a formal arrest.” State v. Anderson, 937 S.W.2d 851, 855 (Tenn.
1996). The analysis is very fact-specific. Id. Certain factors are relevant to our inquiry,
including but not limited to the following:

              the time and location of the interrogation; the duration and
              character of the questioning; the officer’s tone of voice and
              general demeanor; the suspect’s method of transportation to the
              place of questioning; the number of police officers present; any
              limitation on movement or other form of restraint imposed on
              the suspect during the interrogation; any interactions between
              the officer and the suspect, including the words spoken by the
              officer to the suspect, and the suspect’s verbal or nonverbal
              responses; the extent to which the suspect is confronted with the
              law enforcement officer’s suspicions of guilt or evidence of
              guilt; and finally, the extent to which the suspect is made aware
              that he or she is free to refrain from answering questions or to
              end the interview at will.

Id. Whether a suspect is in custody is determined by an objective test. State v. Bush, 942
S.W.2d 489, 499 (Tenn. 1997).

       The appellant does not argue that his statements prior to May 4, 2004, when the
appellant was first incarcerated, were the result of custodial interrogation. Notably, the
statements given by the appellant prior to that date were from telephone calls to, or usually
from, the appellant at his home. Therefore, the appellant’s statements were not the product
of custodial interrogation. Even if the appellant’s right to counsel was invoked by him and
his wife saying that his attorney preferred to be present before further questioning, other
courts have held that “Miranda rights . . . apply only to custodial interrogations [or its
functional equivalent]. If a suspect is not in custody, ‘then his attempts to invoke his right
to remain silent and his Miranda right to counsel are ineffective.’” United States v. Murray,
696 F. Supp. 2d 1044, 1056 (D. Ariz. 2010) (quoting United States v. Bautista, 145 F.3d
1140, 1149 (10th Cir. 1998)); see also Innis, 446 U.S. at 300-01; United States v. Hines, 963
F.2d 255, 256 (9th Cir. 1992) (holding that a defendant’s reference to his lawyer during an
interview was not an invocation of his Miranda rights because he was not in custody).

                                             -18-
“[B]ecause [the appellant’s] interrogation was not custodial, the police were not required to
cease questioning him when he purported to invoke his right to remain silent or to counsel.”
United States v. Mason, 660 F. Supp. 2d 479, 490 (W.D.N.Y. 2009).

       Moreover, as was found by the trial court, the appellant’s statements on February 17,
2004, before the appellant was placed in custody, were initiated by the appellant or by the
police returning calls from the appellant or his wife. Even if the right to counsel is properly
invoked, it can be waived if the conversation is instigated by the appellant. Accordingly, the
record reflects that the appellant’s Fifth Amendment right to counsel was not violated.

        Next, we turn to the question of whether the appellant’s June 6, 2004 statement was
taken in violation of his Sixth Amendment right to counsel. The facts pertinent to this issue
are as follows. The appellant, who was incarcerated at the time, told jailer Virginia Arney
that he needed to speak with “someone.” Arney told Chief Kathy Terrill of the appellant’s
request. Chief Terrill contacted the Carter County Sheriff’s Department who deployed
Investigator Hamm and TBI Agent Shannon Morton to speak with the appellant. When
Investigator Hamm and Agent Morton arrived, they verified with the appellant that he wished
to speak with them. The appellant affirmed his desire to talk with them.

        Both the Sixth Amendment to the United States Constitution and article I, section 9
of the Tennessee Constitution grant the criminally accused the right to counsel. See State v.
Blye, 130 S.W.3d 776, 779 (Tenn. 2004). However, this right only attaches after the
initiation of adversary criminal proceedings. Id. at 780. For example, the right to counsel
attaches “at the time an arrest warrant issues, a preliminary hearing is held (if no arrest
warrant is issued), or an indictment or presentment is returned.” State v. Jackson, 889
S.W.2d 219, 222 (Tenn. Crim. App. 1993). Adversarial proceedings began against the
appellant on May 4, 2004, when a presentment was returned against the appellant. Therefore,
the appellant’s Sixth Amendment right to counsel attached thereafter. However, even the
Sixth Amendment right to counsel can be waived by an appellant’s instigating conversation
with police. See State v. Baker, 931 S.W.2d 232, 236 (Tenn. Crim. App. 1996). The
appellant argues that the record reflects only that he asked to speak with “someone,” not
necessarily the police. However, the trial court found that the appellant requested to speak
with police about his case. In the statement, police asked the appellant if he had requested
to speak with them, and the appellant responded affirmatively. Finally, the appellant
complains about the admission of another statement he made in August 2006 in a letter he
wrote an officer. However, that letter was written voluntarily by the appellant. Accordingly,
we conclude that the appellant’s Sixth Amendment right to counsel was not violated and that
the trial court did not err in refusing to suppress the appellant’s statements.

                                      G. Speedy Trial

                                             -19-
        Finally, the appellant argues that his right to a speedy trial “was violated given the
delay in coming to trial.” Initially, we note that this issue was raised in a “Second Amended
Motion for New Trial” that the appellant filed pro se. It is well-established that a defendant
may not be represented by counsel while simultaneously proceeding pro se. See State v.
Davis, 141 S.W.3d 600, 615-16 n. 12 (Tenn. 2004) (citing Wallace v. State, 121 S.W.3d 652,
655 n. 2 (Tenn. 2003)); State v. Burkhart, 541 S.W.2d 365, 371 (Tenn. 1976). Therefore, this
issue was not properly before the trial court and is arguably waived. See State v. Berry, 141
S.W.3d 549, 569 (Tenn. 2004). Further, we note that the transcript of the motion for new
trial, during which this issue was presumably argued, was not included in the record for our
review. The appellant carries the burden of ensuring that the record on appeal conveys a fair,
accurate, and complete account of what has transpired with respect to those issues that are
the bases of appeal. Tenn. R. App. P. 24(b); see also Thompson v. State, 958 S.W.2d 156,
172 (Tenn. Crim. App. 1997). “In the absence of an adequate record on appeal, this court
must presume that the trial court’s rulings were supported by sufficient evidence.” State v.
Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). Accordingly, the appellant is not
entitled to relief on this issue.

                                      III. Conclusion

       Finding no reversible error, we affirm the judgment of the trial court. However,
during our review of the case, we observed that the judgment of conviction against the
appellant states that he was found guilty of first degree murder on count two of the
presentment. However, count two charged the appellant with premeditated first degree
murder. Prior to trial, the State elected to proceed on only the felony murder count, which
is count one of the presentment. Further, the trial transcript clearly reflects that the jury
found the appellant guilty of count one. Accordingly, we remand to the trial court for entry
of a corrected judgment of conviction to reflect the appellant’s guilt of count one, felony
murder.

                                                    ___________________________________
                                                    NORMA McGEE OGLE, JUDGE




                                             -20-
