         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                       AT KNOXVILLE
                                     June 27, 2001 Session

                      STATE OF TENNESSEE v. CHRIS HAIRE

                     Appeal from the Criminal Court for McMinn County
                      Nos. 98-103 & 98-103A    Carroll L. Ross, Judge



                                  No. E2000-01636-CCA-R3-CD
                                        January 22, 2002


The defendant appeals from his McMinn County Criminal Court convictions and sentences for
second degree murder and facilitation of attempted second degree murder. The trial court sentenced
the defendant to 25 years in the Department of Correction as a Range I offender for the second
degree murder conviction and to five years incarceration for the facilitation of attempted second
degree murder conviction. In this direct appeal, the defendant complains that the evidence is
insufficient; that photographs and expert testimony were improperly admitted; that prosecutorial
misconduct taints the verdict; that the state improperly questioned the defendant about his post-arrest
exercise of his right to remain silent; that the jury instructions regarding intoxication were
prejudicially inadequate; and that the sentences imposed are excessive. Unpersuaded by the
defendant’s assignments of errors, we affirm the trial court’s judgment and sentence.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
ROBERT W. WEDEMEYER , JJ., joined.

Richard A. Fisher, Cleveland, Tennessee, for the appellant, Chris Haire.

Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General;
Jerry N. Estes, District Attorney General; and William Reedy, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION

                 This case arises from the January 30, 1998 shooting death of 23-year old Michael Hite
and the nonfatal shooting of 27-year old Mark Allen. The shootings occurred in the early morning
hours at the trailer residence of Hite and Jeremy Stakley, located in McMinn County. The evidence
is undisputed that the same .38 caliber revolver was used in both shootings. It is also uncontested
that the defendant, Chris Haire, was Hite’s assailant and that John Newberry was Allen’s attacker.
The defendant and Newberry were charged with first degree, premeditated murder of Hite and with
attempted first degree murder of Allen.

                 The defendant was tried in 1999 separately from Newberry.1 The theory of defense
with regard to the Hite shooting was that the defendant, who was 20 years old, was extremely
intoxicated and that the revolver accidently discharged as the defendant was offering to show it to
Hite. There were no eyewitnesses to that shooting, which occurred in Hite’s bedroom inside the
trailer. As for Allen, who was shot by Newberry outside the trailer in his Jeep vehicle, the defendant
disavowed any knowledge of Newberry’s intentions before the shooting and denied assisting
Newberry. An integral part of the defense theory was that the victims and the assailants knew each
other on a friendly basis, such that the defendant had no motive to harm Hite. According to the
defense, Newberry and the defendant had gone to the trailer only to sell or trade the gun for
marijuana.

                Not surprisingly, the state’s evidence and the defendant’s evidence at trial sharply
conflicted, particularly with regard to the defendant’s purpose and motive in going to the trailer. Dee
Dee Miller, who was a friend of the defendant and his wife, testified for the state about the
defendant’s actions and demeanor during the evening before the shooting. Miller and another friend,
Ashley Cranfield, went to the defendant’s residence around 12:00 midnight in response to a
telephone call from Heather Haire, the defendant’s wife. The defendant, Ms. Haire, and John
Newberry were in the kitchen when Miller and Cranfield arrived. Miller testified that Ms. Haire was
crying and that the defendant was yelling and cussing at her.

               In Miller’s opinion, the defendant was very intoxicated, and at one point the
defendant confronted his wife and asked if she was “going with these f------ bitches.” Miller took
Ms. Haire downstairs to find shoes so the three women could leave. As Miller headed for the
kitchen door, Newberry, who also appeared highly intoxicated, pulled a gun out of his pants. Miller
inquired what he was doing with the gun; she also told him that he did not need the gun and
expressed her concern that someone would get hurt. Newberry assured her that the gun was
unloaded, but Miller prevailed upon him to allow her to take the gun and have Ms. Haire return it
later. Ms. Haire left with Miller and Cranfield. Cranfield took Miller home, and Ms. Haire and
Cranfield adjourned to Cranfield’s house. Miller knew nothing about the shooting until around 7:00
a.m., when Cranfield called to tell her what had happened.

               Ashley Cranfield, who also was a friend of the defendant and his wife, testified about
the call from Ms. Haire requesting that Cranfield and Miller come get her. Ms. Haire was crying,
and Cranfield could hear the defendant in the background yelling. Cranfield corroborated Miller’s
account of what happened at the Haire residence. The defendant seemed “very drunk” to Cranfield,
and she could not get the defendant to explain why he was upset and yelling. She saw Newberry
hand a gun to Miller as they were leaving. Later, at Cranfield’s home, Ms. Haire received a
telephone call. As a result of that conversation, Cranfield drove back to the Haire residence, where


       1
           The record before us does not indicate the disposition of the charges against Newberry.

                                                        -2-
she returned the gun to Newberry. Cranfield again left, and the defendant’s wife stayed with her that
night.

                 The state called the defendant’s wife, Heather Haire, to testify and was allowed to
treat her as a hostile witness. Ms. Haire affirmed that she had no plans to divorce the defendant to
whom she had been married for approximately two and one-half years. She denied that there were
marital problems around the time of the shootings, but she had given a statement to the police shortly
after the offenses in which she related that about two weeks before the shootings, her husband had
accused her of having an affair with one of the victims, Mark Allen.

                Ms. Haire offered a benign account of the evening’s events. She testified that she was
not feeling well that evening. Newberry came over to visit, and he and the defendant were drinking.
The defendant had the radio turned up to a loud volume. Also, he was playing a Nintendo football
game, which was causing him to curse. Ms. Haire testified that she wanted to leave because she
could not get any rest, so she called Cranfield. The loud music was bothering her, and the defendant
was getting on her nerves by tickling her and picking on her. She denied that the defendant was
cursing her that evening, and she further denied that the defendant had ever threatened her.

                Regarding the handgun, Ms. Haire testified that it belonged to Newberry. She had
not known the defendant to carry a gun. She remembered that Newberry called Cranfield’s house
later asking for the gun to be returned. She denied that the defendant got on the phone and made the
same demand for the gun. Newberry said that if they did not return the gun, he would come and get
it. Cranfield did not want Newberry and/or the defendant to show up drunk at her house and perhaps
wake up her mother. Therefore, Ms. Haire and Cranfield drove to the defendant’s house with the
gun; Ms. Haire waited in the car while Cranfield took the gun inside the house.

               Turning to the scene of the shootings, the state’s evidence showed that on the evening
of January 29, numerous people had stopped by Hite’s and Stakley’s trailer to drink beer and visit.
As the evening wore on, people started leaving, and Hite went to bed. Two of the guests, Mark
Allen and Barry Wade, opted to stay and sleep on the sofa sleeper. Stakley was at work and was not
expected back until later that morning.

                Around 3:00 a.m. on January 30, Allen and Wade were awakened by pounding on
the trailer door. Wade opened the door, and the defendant and Newberry entered. Both Allen and
Wade testified that the defendant and Newberry appeared intoxicated but not hostile or threatening.
The defendant wanted to know what time Stakley would be back, and Allen told him 7:30 or 8:00
a.m. The defendant had a gun with him. He showed it to Allen and wanted to know what Allen
thought about it, but before Allen could examine the gun, the defendant put it back in his pocket.

                Allen and Wade wanted to go back to sleep, but because the defendant and Newberry
were there, Allen and Wade decided to dress and return to their homes. Before they could do so,
Hite emerged from his bedroom and walked through on his way to use Stakley’s bathroom; Hite’s
toilet apparently was broken at the time.


                                                 -3-
                Hite spoke briefly to the defendant and to Newberry and returned to his bedroom.
Allen testified that they watched television for awhile. At some point, Newberry asked the
defendant, “Chris, you ready to G-O?” The defendant stood up, and as he attempted to walk he
knocked over a lamp. The defendant tried to pick up the lamp and put it back, but he could not.
Allen related that he finally helped the defendant pick up the lamp. The defendant then “stumbled”
into the bathroom. When the defendant emerged he began pacing between the bathroom and Hite’s
bedroom. Allen and Wade began putting on their jeans to leave, and they heard a shot. Allen looked
around a corner and saw the defendant with a gun. Allen testified that the defendant remarked,
“What did I do?” and “I didn’t do anything.”

                The witness accounts of what happened next are conflicting, but two more shots were
discharged from the gun in the general direction of Allen and Wade. Wade ran into Stakley’s
bedroom to hide. Allen ran to the defendant and wrestled the defendant to the couch. Newberry
retrieved the gun, and Allen got off the defendant. Allen checked on Hite. Hite was in bed and in
a sleeping position on his stomach with his head turned to the left. Allen testified that Hite had been
shot in the exposed, left side of his head and that Hite was dead.

                Allen met up with Wade just outside the bedroom. Allen then walked up to
Newberry, who was standing by one of the trailer doors, and told him that they needed to go get
Allen’s father. Allen then tried, but was unable, to open the door. Allen testified that when he
looked out a window, he saw that the defendant was holding the door shut. The defendant eventually
reentered the trailer, at which time Allen walked past Newberry and the defendant, exited the trailer,
and headed for his Jeep. Allen got into his Jeep, but before he could close the vehicle door,
Newberry ran up carrying a gun. Newberry wanted Allen to go back inside the trailer and “talk about
what we’re going to do.” According to Allen, the defendant did not approach the Jeep. Rather, the
defendant was outside “staggering around walking” about seven to ten feet away at the front left
corner of the Jeep.

                Allen rebuffed Newberry’s suggestion to go back inside. Allen turned away and stuck
his key in the Jeep’s ignition, at which time he was shot in the head. Allen testified that he fell
sideways into the passenger seat. He pretended to be dead until the defendant and Newberry drove
away. Allen was able to get back inside the trailer, and he started looking for a phone. He found one
in Hite’s bedroom, but it was not in working order. Wade then found Allen, and Wade drove him
to the hospital. Allen testified that before they left the trailer, they took some towels from Stakley’s
bathroom, and while in the bathroom, Allen removed a bag of marijuana from his pocket and
dumped it in the commode. Allen admitted at trial that he never saw or heard the defendant, either
inside or outside the trailer, do anything to promote or encourage Newberry to shoot him.

                 As part of its case, the state also elicited evidence from the county medical examiner,
who performed the autopsy on Hite’s body, and from McMinn County detectives who were involved
with the arrest of the defendant and Newberry. Detective Fred Schultz was part of the team that went
to the defendant’s residence around 6:00 a.m. the same day of the shooting. He testified that the
front door came open when the officers knocked. The officers entered and discovered Newberry and


                                                  -4-
the defendant in an upstairs bedroom stretched out on the bed. Detective Schultz testified that his
first reaction was that the defendant was dead because he was “laying motionless on his back with
his head resting on the pillow, with a, just a stare like he was either dead or in a coma.” The
defendant did not respond when given verbal commands or when a flashlight was shined in his eyes.
Not until the officers physically removed the defendant from the bed did he awake, at which time
he became verbally abusive.

                Detective Schultz related that the defendant was escorted from the bedroom so that
it could be searched. The defendant was taken into the hallway and seated in a chair. Another
officer, Detective Jerry Wilson, had been assigned to take photographs. Detective Wilson testified
that he noticed that the defendant was using a lot of foul language whenever anyone walked by in
the hallway. Detective Wilson decided to snap a photograph of the defendant, and as he prepared
to do so, the defendant looked up and grinned at the camera.

                From his residence, the defendant was transported to the Athens Community Hospital.
Blood drawn at 7:40 a.m. that morning was tested, and the defendant’s blood alcohol content
registered .20. Both the defendant and Newberry tested positive for gunshot residue on their hands.

                Dr. Ronald Toolsie, who performed the autopsy on Hite’s body, testified that Hite had
sustained a single gunshot wound to the left upper scalp from an intermediate distance of a few
inches to a foot. The wound was four to five inches above the ear and a couple of inches in front of
it. Based on the path of the bullet, Dr. Toolsie stated that the weapon was discharged outside the
victim’s peripheral vision. In Dr. Toolsie’s opinion, Hite’s head was down on the bed in a sleeping
position when he was shot. That position is reflected in the state’s photograph of the body taken
before anything was moved or disturbed. Dr. Toolsie conceded the possibility that Hite’s head or
chin could have been up and above the pillow when the gun discharged, but nonetheless, in his
opinion, the shooting was a homicide, not an accident.

                At the conclusion of the state’s case, the defense presented brief testimony from
several witnesses that the defendant is right handed and that his reputation for peacefulness and
honesty is good. In addition, the defendant recalled his wife. She denied being afraid to leave the
defendant and denied that he had threatened her. The state provided her a copy of her police
statement on cross examination and read from it. Ms. Haire had recounted for the police several
incidents prior to the shootings when the defendant had questioned her in an accusatory fashion
about seeing other men. One time, for example, the defendant came home from work and asked her
whose car had been parked behind their house. Another time, he demanded to know who had been
at their house, why she had bagged up the garbage, and what she was hiding. When Ms. Haire
professed not to know what he was talking about, he accused her of being with Mark Allen. In her
statement, Ms. Haire told the police that she had “never been with Mark or with any of those at the
trailer.”

               The most lengthy proof was the defendant’s own testimony. He discussed his usual
group of friends, which included the victims and the witnesses who had testified earlier. Of the


                                                -5-
group, the defendant said that he was closest to Newberry because Newberry had lived with him at
one time. Many of the people in the group drank alcohol and smoked marijuana.

                The defendant’s account of his activities earlier in the evening at his house was
consistent with his wife’s description. He added that he was highly intoxicated, having consumed
beer, vodka, and tequila. The defendant admitted that he curses when he gets intoxicated. He could
not recall cursing his wife, Miller, or Cranfield that night, but he conceded that he could have done
so in his intoxicated condition. The defendant admitted that on one occasion, two to three weeks
before the shootings, he had accused his wife of having an affair. When, however, she denied any
such relationship, the defendant said that he dropped the subject.

               The defendant testified that Newberry came up with the idea of selling the gun to
Stakley so they could buy marijuana that evening. The defendant estimated that a quarter-bag of
marijuana costs between $35 to $40. The defendant testified that he and Newberry had no money
that evening, but a police photograph of the defendant’s bedroom showed money on the floor beside
the bed. The defendant said that the money belonged to Newberry and that he did not know that
Newberry had any money that evening.

               The defendant explained that he and Newberry went to the trailer because the
defendant was a friend of Stakley and because Stakley would know where they could find marijuana.
The defendant did not recall what time it was when he drove them to the trailer. He testified that he
remembered knocking on the door, going inside, talking with Wade and Allen, drinking a couple of
beers, and speaking briefly with Hite. He believed that he showed the gun to Wade and Allen.

               The defendant disavowed any plan to kill Hite. He testified that he recalled going
back to Hite’s bedroom and having a conversation. Hite, he remembered, was in bed and propped
up. The defendant asked Hite if he thought Stakley would be interested in buying the gun. The
defendant testified, “And I remember having the gun and like, when I was handing it to him, I
remember it going off.” According to the defendant, “I never aimed the gun at him . . . never.”

               The defendant did not recall firing any other shots; he testified that the next thing he
remembered was running and being tackled. From that point, the defendant’s next memory was of
being outside, wandering around dazed, and seeing Newberry at the Jeep talking to Allen. The
defendant heard the gun discharge, and he headed in the direction of the sound. Newberry told him
that Allen was dead, and Newberry grabbed him and told him to go. The defendant testified that he
had “no idea” that Newberry was going to shoot Allen. The defendant and Newberry drove off, and
along the way Newberry threw the gun out the passenger window.

             The defendant testified that he did not recall being arrested. Likewise, he did not
remember having his picture taken when he was sitting in the hallway of his house.

              Based on the evidence, the jury returned a verdict finding the defendant guilty of
second degree murder as a lesser-included offense of first degree murder in connection with Hite’s


                                                 -6-
shooting and finding him guilty of facilitation of attempted second degree murder as a lesser-
included offense of attempted first degree murder in connection with Allen’s shooting. The trial
court sentenced the defendant to 25 years for Hite’s shooting and to five years for the facilitation of
Allen’s shooting.

                                   I. Sufficiency of the Evidence

                 The defendant complains that the state failed to prove beyond a reasonable doubt that
he was guilty of second degree murder in connection with the Hite shooting. He further asserts that
the evidence is insufficient to prove facilitation to commit attempted second degree murder in
connection with the Allen shooting. As we shall explain, we respectfully disagree that the evidence
is insufficient for either conviction.

                                        A. Standard of Review

                When an accused challenges the sufficiency of the evidence, an appellate court
inspects the evidentiary landscape, including the direct and circumstantial contours, from the vantage
point most agreeable to the prosecution. The reviewing court then decides whether the evidence and
the inferences that flow therefrom permit any rational factfinder to conclude beyond a reasonable
doubt that the defendant is guilty of the charged crime. See Tenn. R. App. P. 13(e); Jackson v.
Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan, 698 S.W.2d 63, 67
(Tenn. 1985); State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990), overruled on other
grounds by State v. Hooper, 29 S.W.3d 1 (Tenn. 2000).

                 In determining sufficiency of the proof, the appellate court does not replay and
reweigh the evidence. See State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Witness credibility, the weight and value of the evidence, and factual disputes are entrusted to the
finder of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); Liakas v. State, 199 Tenn. 298,
305, 286 S.W.2d 856, 859 (1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978).
Simply stated, the court will not substitute its judgment for that of the trier of fact. Instead, the court
extends to the State of Tennessee the strongest legitimate view of the evidence contained in the
record as well as all reasonable and legitimate inferences that may be drawn from the evidence. See
Cabbage, 571 S.W.2d at 835.

                             B. Second Degree Murder of Michael Hite

               Second degree murder is “[a] knowing killing of another,” punishable as a Class A
felony. Tenn. Code Ann. § 39-13-210 (1997). A “knowing” killing is one in which “the person is
aware that the conduct is reasonably certain to cause the result.” Id. § 39-11-106(20) (1997); see
State v. Decker, 27 S.W.3d 889, 896 (Tenn. 2000). The defendant in this case maintains that the
“knowing” element of the offense was not proven beyond a reasonable doubt because the evidence
at trial showed that he was extremely intoxicated such that the Hite shooting was an accident.



                                                   -7-
                  From the evidence in this case, viewed most favorably to the state, we conclude that
the proof sufficiently supports a finding of second degree murder. By its verdict, the jury determined
that the defendant did not premeditate the homicide of Hite. Therefore, the question was whether
the shooting was “knowing” or was an accident. The jury heard the defendant’s account of the
events and his protestations that the shooting was an accident. The jury reasonably could conclude
that the physical evidence refuted the defendant’s claim that the victim was propped up on his right
arm in the bed and was reaching up to take the gun when it accidently discharged. The jury, in
addition, reasonably could believe that the additional shots fired, the defendant’s departure from the
trailer, his failure to contact medical or law enforcement personnel, and his return to his residence
to sleep were inconsistent with an accidental shooting.

               As for the reasons why the defendant went to the trailer, the jury reasonably could
conclude that something other than a desire to sell the gun to buy marijuana was afoot. The state’s
evidence showed that Newberry had at least $20 that evening. Also, the jury reasonably could
disbelieve the wife’s tame version of the defendant’s behavior and, instead, credit Miller’s and
Cranfield’s account of what transpired. The defendant, moreover, admitted during his testimony that
two or three weeks before the shootings he had accused his wife of having an affair.

                 The defendant argues that his voluntary intoxication prevented him from "knowingly"
killing the victim. Although voluntary intoxication is not itself a defense to second degree murder,
it is relevant to negate a culpable mental state. Tenn. Code Ann. § 39-11-503 (1997). In this case,
the trial court properly charged the jury as to the relevance of voluntary intoxication. Whether a
defendant is too intoxicated to form the requisite mental state is a question reserved for the jury.
State v. Brooks, 909 S.W.2d 854, 859 (Tenn. Crim. App. 1995). The jury in this case obviously
concluded that the defendant was not so intoxicated as to be unable to form the required mental state
of "knowing.” In the light most favorable to the state, this interpretation of the evidence is
reasonable, and we will not disturb that determination.


                The defendant’s second degree murder insufficiency claim fails.


                C. Facilitation of Attempted Second Degree Murder of Mark Allen


                A person is criminally responsible for the facilitation of a felony “if, knowing that
another intends to commit a specific felony, but without the intent required for criminal
responsibility under § 39-11-402(2), the person knowingly furnishes substantial assistance in the
commission of the felony.” Tenn. Code Ann. § 39-11-403(a) (1997). With facilitation, the offender
“though facilitating the offense, lacks the intent to promote, assist or benefit from the offense.” Id.,
Sentencing Comm’n Cmts.


               The defendant challenges the evidence sufficiency for this conviction on two grounds.
He claims that he had “no idea” that Newberry was going to shoot Allen and that he did not “assist”

                                                  -8-
Newberry in any way. The state counters that the proof showed that the defendant and Newberry had
a plan to harm both Hite and Allen and that the defendant furnished substantial assistance to
Newberry by trying to block Allen and Wade from escaping.


               The state in this case offered circumstantial evidence from which the jury could
reasonably conclude that the defendant, suspicious of his wife’s involvement with Allen and fortified
by alcohol, recruited Newberry to help him locate Allen. The defendant and Newberry embarked
on this mission armed with a handgun from which the jury could deduce that the men intended to
threaten or otherwise harm Allen.


                The state’s evidence does not explain how the defendant or Newberry knew that Allen
was at Hite’s and Stakley’s trailer, but the evidence at trial indicated that the trailer was a popular
gathering spot for the defendant’s group of friends. Although we are skeptical that Newberry’s
question “Chris, you ready to G-O?” was some kind of code for “lock and load,” such an
interpretation is, nevertheless, a legitimate “inference” from the evidence.


                The defendant’s and Newberry’s actions immediately following the shooting of Hite
are particularly telling. The jury reasonably could credit Wade’s testimony that after the first shot
was fired he headed for cover in Stakley’s bedroom, but Newberry stopped him, put his arm out, and
announced, “I’ve got him.” Likewise, the jury could reasonably accept Allen’s testimony that he was
unable to open the door when he first tried to leave the trailer because the defendant was on the other
side holding the door shut. Allen heard either the defendant or Newberry say, “Well, you know,
what are we going to do?” After Allen escaped the trailer and was at his Jeep, Newberry came up
to him with a gun and stated, “Let’s go back inside and talk about what we’re going to do.” When
Allen refused, Newberry shot him.


                 The defendant emphasizes that he was not near the Jeep when Newberry shot Allen;
rather, he was staggering around outside. The defendant also relies on Allen’s testimony that he
never saw or heard the defendant do anything to prompt or encourage Newberry to shoot him. This
evidence may have persuaded the jury that the defendant was not criminally responsible for the
attempted second degree murder of Allen, but it does not undermine the legal sufficiency of the proof
that the defendant facilitated the attempted second degree murder that occurred. The offense of
facilitation of a felony dispenses with the requirement that the defendant act with the intent “to
promote or assist the commission of the offense, or to benefit in the proceeds or results.” Tenn.
Code Ann. §§ 39-11-402(2), 39-11-403 (1997). Facilitation also differs from criminal responsibility
in that it only requires the person to knowingly furnish “substantial assistance” whereas criminal
responsibility of the “aiders and abettors” variety requires that the person “solicits, directs, aids, or
attempts to aid.” Id. We agree with the state that the jury could reasonably conclude that the
defendant provided substantial assistance in the attempted murder of Allen by trying to keep Allen
and Wade from escaping.


                                                  -9-
                 We conclude that the evidence is sufficient to support the defendant’s conviction for
facilitation of attempted second degree murder.

                            II. Erroneous Admission of Photographs

               Next, the defendant insists that the trial court committed reversible error in the
admission of several color photographs of the deceased taken at the crime scene and in the admission
of a photograph of the defendant when he was arrested, in which the defendant is dressed only in his
undershorts and is grinning at the camera. Specifically, the defendant complains that the
photographs of the deceased did not “add to” Dr. Toolsie’s testimony about the cause and manner
of death. The defendant further objects that the photograph of “an intoxicated man briefly smiling”
had no probative value, but even if it did, the state made highly inflammatory and prejudicial use of
the photograph to persuade the jury that the defendant was a “cold-blooded” murderer.

                 In determining whether photographs should be admitted, the trial court must
determine, first, whether the photograph is relevant. Tenn. R. Evid. 401; State v. Banks, 564 S.W.2d
947, 949 (Tenn. 1978). Photographs are not necessarily rendered inadmissible because they are
cumulative of other evidence or because descriptive words could be used. See Collins v. State, 506
S.W.2d 179, 185 (Tenn. Crim. App. 1973). Photographs must be relevant to prove some part of the
prosecution's case and must not be admitted solely to inflame the jury and prejudice them against the
defendant. Banks, 564 S.W.2d at 951; see Tenn. R. Evid. 403 (relevant evidence may be admitted
if its probative value is not "substantially outweighed by the danger of unfair prejudice"). On appeal,
the trial court’s decision to admit a photographic exhibit is reviewable for abuse of discretion.
Banks, 564 S.W.2d at 949.

                The crime scene photographs are of the deceased’s body. Some of the photographs
show the deceased positioned in his bed as he was found following the shooting. Other photographs
were taken after medical personnel on the scene had moved and checked the body. The victim’s
lower torso is clothed, and only one of the photographs shows the fatal head wound. The blood loss
occasioned by the shooting was not extreme. The trial court was sensitive to the shock value of the
crime scene photographs; indeed, the trial court ordered the state to crop off part of one of the
photographs because an earlier photograph adequately depicted the entry wound.

                In our view, the trial court did not abuse its discretion with respect to these
photographs. They were relevant for the jury to understand the cause of death and because the
defendant was insisting that the gun had accidently discharged as the victim was reaching up to
examine it. See State v. James Wesley Osborne, No. E1999-01071-CCA-R3-CD, slip op. at 8 (Tenn.
Crim. App., Knoxville, June 14, 2001) (defendant argued death of victim was accident; medical
examiner properly used photographs to show defendant must have slashed victim’s neck from
behind). Admissibility of these photographs, furthermore, was not contingent upon a demonstration
of relevance independent of and in addition to the testimony of the medical examiner. The defendant
directs our attention to and quotes extensively from State v. Collins, 986 S.W.2d 13 (Tenn. Crim.
App. 1998). That decision does not change our opinion, nor is it inconsistent with our ruling in this

                                                 -10-
case. The challenged photographs in Collins were of a newborn baby taken during an autopsy.
Autopsy photographs traditionally have been more closely scrutinized for their unduly prejudicial
potential. See State v. Price, 46 S.W.3d 785, 815 (Tenn. Crim. App. 2000) (autopsy photographs
should be particularly scrutinized). The photographs in this case were taken at the crime scene
before an autopsy was performed.

                In our view, the photograph of the defendant grinning at the camera also was properly
admitted. Here, the defendant’s grievance is a straightforward Evidence Rule 403 objection that the
photograph was highly inflammatory and unduly prejudicial. See Tenn. R. Evid. 403. The state
successfully, and we believe fairly, exploited this picture “worth a thousand words.” The defendant
maintained that the shooting was an accident. The expression on the defendant’s face shown in the
picture seems inappropriate for someone who had, only hours earlier, accidently shot and killed his
friend. Additionally, we believe that the defense adroitly blunted the sting of the photograph by
characterizing it as a “picture of a drunk in his underwear.”

               Having carefully reviewed these photographic exhibits, we find no abuse of discretion
in their admission and consideration by the jury.

                                      III. Expert Testimony

               In his next issue, the defendant complains that the expert testimony of the medical
examiner, Dr. Toolsie, should have been stricken or disallowed. Dr. Toolsie, according to the
defendant, was wrongly advised about the source of the blood on the wall above the headboard of
Hite’s bed. Dr. Toolsie was led to believe that the blood was “spatter” or “splatter” from the gunshot
wound to Hite’s face, when, actually, Mark Allen was the person who left the blood smear when he
braced himself with his bloody hand on the wall above Hite’s headboard reaching for the telephone.
The defendant argues that he is entitled to a new trial because Dr. Toolsie relied upon the
“misrepresentation” about the blood on the wall to attack the defendant’s position that the gun
accidentally discharged as he was handing it to Hite and to support the state’s theory that Hite was
asleep in bed when he was shot by the defendant.

                The only authority that the defendant cites in support of his argument is Tennessee
Evidence Rule 703, which addresses the bases of opinion testimony by experts. Generally speaking,
questions about the admissibility, qualifications, relevancy, and competency of expert testimony are
entrusted to the sound discretion of the trial court. The trial court's ruling in this regard may only
be overturned if the discretion is arbitrarily exercised or abused. See State v. Ballard, 855 S.W.2d
557, 562 (Tenn. 1993). As we shall explain, we decline to disturb the trial court’s exercise of
discretion in this case.

                Dr. Toolsie was the second witness who testified for the state. At the conclusion of
his testimony, the defendant moved to strike his testimony, but the stated reasons were lack of
qualifications and improper testimony on the ultimate jury issue. The trial court exercised sound



                                                -11-
discretion and denied the motion. The trial court did comment that the defense could argue those
reasons to the jury.

                 Later, when Mark Allen identified various blood smears he made throughout the
trailer, including the one on the wall above Hite’s bed, the defendant did not voice a new objection
to Dr. Toolsie’s testimony based on the earlier misrepresentation about the source of the blood on
the wall. The defendant also did not seek to recall Dr. Toolsie to capitalize on the mistake and
discredit his earlier opinions. The strategy that the defense pursued was to argue to the jury in
closing that Dr. Toolsie’s testimony was incredible, as evidenced, in part, by the erroneous
identification of the source of the blood on the wall. It is well settled that a defendant is not entitled
to relief where he failed to take action in the trial court to prevent or alleviate the harmful effects of
an “alleged” error. See Tenn. R. App. P. 36(a) (nothing in rule requires “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”).

               We decline to hold that the trial court abused its discretion in this case in admitting
Dr. Toolsie’s testimony.

                                   IV. Prosecutorial Misconduct

                The defendant complains that prosecutorial misconduct tainted the jury’s verdict in
this case, thereby requiring a new trial. This complaint appears, in one form or another, in three of
the defendant’s issues on appeal.

               In reviewing allegations of prosecutorial misconduct, this court looks to see “whether
such conduct could have affected the verdict to the prejudice of the defendant.” State v. Smith, 803
S.W.2d 709, 710 (Tenn. Crim. App. 1990). That analysis involves consideration of five factors: (1)
the conduct complained of viewed in context and in light of the facts and circumstances of the case;
(2) the curative measures undertaken by the trial court and the prosecution; (3) the intent of the
prosecutor in making an improper statement; (4) the cumulative effect of the improper conduct and
any other errors in the record; and (5) the relative strength or weakness of the case. State v. Buck,
670 S.W.2d 600, 609 (Tenn. 1984); Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).
Whether the trial court erred in allowing the complained-of conduct is reviewed for abuse of
discretion. State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1972).

                                                   A.

               The defendant first raises the specter that prosecutorial misconduct permeated and
poisoned the trial. He cites to one instance, outside the presence of the jury, when the trial court
admonished prosecution counsel about “emotional eruptions.”

             From our review of the record, we are not convinced that prosecution counsel’s
demeanor and emotional eruptions had such a deleterious effect on the jury’s verdict as to require


                                                  -12-
a reversal. This case was hard fought and well tried by seasoned attorneys who provided zealous
representation. We believe that the jury in this instance effectively sorted the polemics from the
proof as evidenced, in part, by the jury’s rejection of the state’s theory of first degree murder and
attempted first degree murder.

                                                 B.

                The defendant also claims that on three occasions prosecution counsel misstated the
evidence. We are unable to assess one of the defendant’s complaints that prosecution counsel
incorrectly stated what the evidence would show during opening statements. The record before us
does not contain a transcript of opening statements. The appellant is responsible for preparing a
transcript containing an accurate and complete account of what transpired with respect to those
issues that form the basis of his appeal. Tenn. R. App. P. 24(b). Failure to do so preempts
consideration of the issue.
              Another claim of misstating evidence concerns the state cross-examining the
defendant about who was driving when he and Newberry left the trailer. The testimony up until that
time had been that the defendant was the driver. The following exchange occurred:
               Q.      You want this jury to believe you were knee-walking drunk
                       and you were worried about him getting picked up or driving
                       without a license?
               A.      No, I mean I just – my car, I always drive my car.
               Q.      Well, I think one – and I may be wrong about this – but I
                       think one or more of the occurrence witnesses said that when
                       you all left that place, that trailer that night, John Newberry
                       was driving. Is that true?
               A.      That is not true.
               Q.      Well, I guess they didn’t get, I guess –

               At that point, the defense interposed an objection that the state had misquoted the
evidence. Following a brief bench conference, the trial court instructed the jury not to consider the
questions or comments of counsel as evidence and to disregard any misstatements of counsel.

               It is unprofessional conduct for a prosecuting attorney intentionally to misstate the
evidence or mislead the jury as to the inferences it may draw. See State v. Philpott, 882 S.W.2d 394,
408 (Tenn. Crim. App. 1994). It is as much the state’s obligation to avoid improper methods
calculated to produce a wrongful conviction as it is to use every legitimate tactic to produce a just
one. See Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935).

               From our review, we do not consider the prosecuting attorney’s question to the
defendant to amount to prosecutorial misconduct. In the midst of trial, counsel for the parties are
not expected to have 100 percent accurate recall of the testimony that has been presented. A trial

                                                -13-
has many features that partake of free-form composition rather than a scripted production, and we
are unwilling to brand every unintended misstep as prosecutorial misconduct. Even if, however, the
question in this case could be classified as prosecutorial misconduct, we are certain that it did not
affect the verdict to the defendant’s detriment. In the context of the case, the identity of the driver
was not particularly significant. The evidence established that the defendant was intoxicated. The
defendant was not confused or misled by the question; he quickly responded that Newberry was not
the driver. The trial court, moreover, cautioned the jury that counsel’s comments were not evidence.

               Prosecution counsel’s comments during closing argument are not so easily dismissed.
These closing argument comments related back to the defendant’s testimony at trial. To impeach
the defendant’s testimony that he and Newberry went to the trailer to sell the gun in order to buy
marijuana, the state, on cross-examination, introduced a police photograph of the defendant’s
bedroom showing money found on the floor on Newberry’s side of the bed. The defendant examined
the photograph and told prosecution counsel that the money belonged to Newberry to which
prosecution counsel then followed up, “And I count at least $42.00 in that picture; two 20's, a one,
and then there’s another one on this bed.” The defendant disagreed and told prosecution counsel,
“I see one 20 and one.” Defense counsel requested a bench conference and objected to the state’s
misstatement about the amount of money.

                During the bench conference, the state argued that it was up to the jury to determine
the amount of money. The defendant countered that the jury should not have to guess, and the trial
court agreed. The trial court ordered the state to look for a police report or a property receipt that
would answer the question. The state at first claimed that the receipt had been lost, and the
defendant’s cross-examination resumed. Later, an evidence receipt was located and provided to the
trial court, but it generically described the property as “wallet and contents.” During further
argument outside the presence of the jury, a different photograph of the money, taken at a closer
range, was examined, and the state then conceded to the trial court and the defense that from that
photograph, “[I]t appears that [the defendant is] right; there’s only one bill, so I guess [the jury is]
going to get mad at me because I was wrong and he can tell [the jury] all about it.”

               The state’s concession was short lived. During final closing argument, the state
appealed to the jury as follows:

                This was some frolic, right of passage we’re supposed to just excuse?
                Hey, man, he’s just a kid growing up? Give him a break? We needed
                a licensed driver to go buy some pot? The $20.00 defense? I made
                reference to $40.00. Oh, remember that? He made a big deal out of
                that. Went over to buy pot? Well, let’s just say he had $20.00. Let’s
                take the, let’s take just the testimony on that issue of the defendant
                that Mr. Fisher wants you to believe. He says a quarter bag you get
                from 40 to $50.00. Okay. I thought there was $40.00 in that picture,
                and if I’m wrong, there was only $20.00



                                                 -14-
At that point, the defendant interposed an objection. The trial court, however, only directed the state
to rephrase its argument, which it did as “let’s assume it’s only $20.00.”

                 The wide latitude afforded to the parties in their closing arguments, State v. Bigbee,
885 S.W.2d 797, 809 (Tenn. 1994), carries with it the commensurate responsibility to deliver
arguments that are temperate, based upon the evidence introduced at trial, relevant to the issues, and
not otherwise improper under the facts or law. Coker v. State, 911 S.W.2d 357, 368 (Tenn. Crim.
App. 1995). In our view, the state failed to fulfill that responsibility. The defense called the state’s
hand, so to speak, when prosecution counsel framed his cross-examination question in an attempt
to transform his own opinion, “I count at least $42.00 in that picture,” into evidence. The state was
unable to provide any documentation to substantiate the “opinion,” and examination of a different
photograph showed the state’s error. Even so, the state continued to promote for the jury a “who are
you going to believe” credibility contest. Moreover, the state waited until its final closing arguments
to interject the money. At that point, the proof was closed. The state undoubtedly was aware that
the defense could not successfully lobby to reopen the proof to clear up any ambiguity. Likewise,
the defendant had no opportunity for additional argument to the jury.

                Although we agree with the defendant that misconduct occurred, it does not
affirmatively appear to have prejudicially affected the verdict. The defendant steadfastly maintained
that the purpose in going to the trailer was to sell the gun to purchase marijuana. That claim, if not
effectively rebutted, was seriously undermined by proof that Newberry had enough money with him
to purchase a quantity of marijuana sufficient for their personal use. Consequently, whether
Newberry had $20 or $40 was fairly inconsequential in terms of ferreting out the actual motive in
going to the trailer. Here, the state’s misconduct is insufficient to require a new trial.

                                                  C.

                 We have reviewed two other complaints that on one occasion an inadmissible and
prejudicial opinion of Barry Wade that “I guess he was going to shoot me and Mark” was elicited
by the state and that on another occasion at the end of a trial day the jury was permitted to pass
around a crime scene photograph of Hite in his bed. Although included in the prosecutorial
misconduct section of the defendant’s brief, these issues are couched in terms of error committed
by the trial court. We can find no basis to assign error to the jury’s inspection of an admissible crime
scene photograph. While primacy and recentness are important considerations in terms of trial
strategy and advocacy, they are not, by themselves, grounds for reversible error. In addition, the state
raises a valid point that inasmuch as the photograph shows the blood above the headboard of the bed,
falsely believed to be “spatter” from the victim, it aided the defendant by serving to remind the jury
of Dr. Toolsie’s erroneous opinion. As for Barry Wade’s belief that the defendant was going to
shoot him and Mark Allen, that testimony, even if objectionable, had only a negligible impact in this
case. The jury surely was not surprised that, under the circumstances, Wade thought he was going
to be shot, and the jury, on its own, reasonably could have arrived at that opinion based on the
defendant’s actions. We reject these claims of trial error. Accordingly, we also reject any claim that
this properly admitted evidence forms the basis for a finding of prosecutorial misconduct.


                                                 -15-
                                                  D.

                The defendant presses as a separate claim of prosecutorial misconduct that the state
improperly elicited testimony about his post-arrest silence. During cross-examination of the
defendant, the state twice inquired whether he told anyone at the trailer that the shooting of Hite was
an accident. The defendant responded both times that he did not know and that he could not say
either way. The state also asked the defendant if he made any phone calls for help or to report the
shooting as an accident when he drove back to his residence. The defendant said that he did not.
The state then followed up with the question, “Well, surely, now that you’re in custody and
somebody thinks you did something bad, you told them [law enforcement officers] it was an
accident; you came forth with what happened, didn’t you?” The defendant answered, “No, sir, I did
not,” at which point defense counsel objected and requested a bench conference. At the bench
conference, the defense moved for a mistrial because the state had treaded upon the defendant’s right
to remain silent. The trial court denied the motion and overruled the objection.

               Before completing the defendant’s cross-examination, the state pressed forward a
final time.

               Q.      When was the first time and who did you first tell that the
                       killing of Michael Hite was as a result of an accidental
                       shooting?

               A.      The first person that I spoke to about any of this was my
                       lawyer.

               Q.      So Mr. Fisher was the first person that you told anything
                       about an accidental shooting?

               A.      Yes, sir.

               Q.      And when was that, approximately, after your arrest?

               A.      I believe I got to see Mr. Fisher the next day.

The defense requested another bench conference and renewed the request for a mistrial. The trial
court again denied the request but did advise the state not to further pursue the matter. No curative
instruction was given to the jury.

                Our analysis of this issue begins with the decision in Doyle v. Ohio, 426 U.S. 610,
96 S. Ct. 2240 (1976). The defendant in that case testified at his trial on charges of selling
marijuana, and for the first time, he claimed that he had been framed. To impeach the testimony,
the state inquired why the defendant had not told this story immediately after his arrest. Id. at 612-


                                                 -16-
13, 96 S. Ct. at 2242. The defendant complained on appeal that cross-examination about his post-
arrest silence was improper. The Supreme Court ruled that “the use for impeachment purposes of
[defendant’s] silence, at the time of arrest and after receiving Miranda warnings, violated the Due
Process Clause of the Fourteenth Amendment.” Id. at 619, 96 S. Ct. at 2245.

               Cases subsequent to Doyle have crystalized that the due process, fundamental
unfairness concerns stem from the implicit assurances of the Miranda warnings. Thus, in Jenkins
v. Anderson, 447 U.S. 231, 100 S. Ct. 2124 (1980), the Supreme Court held that due process was not
violated by the impeachment use of pre-arrest, pre-Miranda warnings silence.2 Two years later, in
Fletcher v. Weir, 455 U.S. 603, 102 S. Ct. 1309 (1982), the Supreme Court then held that
impeachment use of post-arrest, pre-Miranda warnings silence does not violate due process. Doyle,
the Weir court explained, involved silence that the government had actually induced through
Miranda warnings, and the Weir court noted that Doyle did not extend to the situation in which a
defendant had not yet received Miranda warnings. See id., 455 U.S. at 605-06, 102 S. Ct. at 1311.

              In the instant case, the record does not indicate that the defendant received any
Miranda warnings during the period he remained silent immediately after his arrest. Pursuant to
Weir, therefore, the state’s cross-examination about the defendant’s post-arrest silence was
permissible under the federal constitution.

                 Weir, however, is not entirely dispositive of the issue. The concluding portion of the
opinion in Weir cautions that although due process is not violated, “[a] State is entitled, in such
situation, to leave to the judge and jury under its own rules of evidence the resolution of the extent
to which postarrest silence may be deemed to impeach a criminal defendant’s own testimony.” Weir,
455 U.S. at 607, 102 S. Ct. at 1312. In other words, Weir did not restrict the states from affording,
on state law principles, more protection to a defendant’s post-arrest silence that precedes Miranda
warnings.

                The decision in Braden v. State, 534 S.W.2d 657 (Tenn. 1976), is frequently cited
and quoted for the proposition that the prosecution should neither comment on a defendant’s post-
arrest silence nor use it to impeach a defendant’s testimony during trial. Also frequently quoted is
the passage in Braden that notwithstanding the general proposition, a defendant should not be
allowed to use post-arrest silence to protect the defendant from the effect of patently inconsistent
testimony at trial. According to the Braden court, “[E]vidence of pretrial silence of the defendant
must be admitted with caution and then only where such silence is patently inconsistent with
defendant’s testimony.” Id., 534 S.W.2d at 660 (emphasis added).




         2
             Pursuant to Jenkins v. Anderson, no due process violation occurred when the state questioned the defendant
about his pre-arrest silence. It was entirely proper for the state to elicit that the defendant had not told anyone at the
trailer that Hite’s shooting was an accident and that he had not phoned for help or reported an accidental shooting upon
returning to his residence.

                                                          -17-
                Braden was decided by our supreme court in March of 1976, before the United States
Supreme Court released its opinion in Doyle v. Ohio in June of 1976. Doyle recognizes a strict due
process prohibition to use for impeachment purposes of a defendant’s post-arrest silence after
receiving Miranda warnings. Accordingly, Braden’s qualified use of a defendant’s silence when it
is patently inconsistent with his or her testimony at trial does not survive Doyle.

                 However, as we previously noted, Doyle applies to impeachment use of post-arrest,
post-Miranda warnings silence as contrasted with impeachment use of post-arrest, pre-Miranda
warnings silence, the latter of which does not run afoul of constitutional due process per the Weir
decision. Consequently, we are of the opinion that Braden’s “patently inconsistent” qualification
is still viable in the factual context presented in Weir. The result is that Tennessee restricts
impeachment use of a defendant’s post-arrest silence that precedes Miranda warnings to those
situations wherein it is patently or blatantly inconsistent with trial testimony.

                The state maintains in this case that the defendant’s trial testimony was patently
inconsistent with his silence upon arrest; therefore, his silence is fair impeachment. The state,
however, fails to identify what part of the defendant’s trial testimony creates the patent
inconsistency. Instead, the state generically insists that any “reasonable” person after being arrested
would have made some statement that the killing was an accident, if in fact it was an accident. Of
course, this one-size-fits-all argument applies with equal force to the arrested person who fails to
profess, for example, self-defense, alibi, duress, entrapment, or necessity. We do not believe that
a “patent inconsistency” is as expansive or as general as the state implies.

                Our review of the defendant’s testimony at trial reveals that his memory of the events
was sketchy and incomplete. In addition, by all accounts the defendant was more than mildly
intoxicated. The defendant’s explanation of the shooting was that he remembered having the gun,
and as he was handing it to Hite, he recalled a loud noise and a flash as it discharged. The defendant
acknowledged that after he sobered up, he realized that he should never have been drinking and
carrying a gun. One of the detectives who assisted with the defendant’s arrest told the jury that when
he entered the bedroom his first reaction was that the defendant was dead because the defendant was
motionless with his head resting on a pillow and a blank stare on his face.

                The defendant’s testimony at trial, in our estimation, is not patently inconsistent with
failing to assert, when arrested, that the shooting was accidental. His silence on this topic, when
arrested, is ambiguous. Detective Schultz testified at trial that after the defendant was pulled from
his bed, he “awoke and became verbally abusive.” Thereafter, the defendant continued to be verbally
abusive, cursing and using foul language whenever an officer walked past him. The defendant’s
actions and utterances arguably were alcohol induced; his failure to claim that the shooting was
accidental, under these circumstances, is simply not blatantly inconsistent with his later testimony
given when he was not under the influence of an intoxicant. It was error, in our opinion, to allow
the state to use the defendant’s post-arrest, pre-Miranda warnings silence to impeach him.




                                                 -18-
                As for eliciting from the defendant that he first related the accidental nature of the
shooting to his attorney the day following his arrest, the state treaded into constitutionally forbidden
impeachment territory, in our opinion. Through its questions, the state wanted the jury to infer the
defendant’s guilt because he failed to tell the police his exculpatory story following arrest and,
instead, waited until the next day to inform his attorney. Post trial, the defendant testified that the
police attempted to question him after he was transported to the police station, but he elected not to
speak and asked for an attorney. The state’s impeachment was a thinly disguised effort to capitalize
on the defendant’s silence at the time of arrest and after receiving Miranda warnings.

                 The next question thus becomes whether these errors were harmless. Regarding the
defendant’s post-arrest, pre-Miranda warnings silence, in our estimation, it does not affirmatively
appear that this error affected the result of defendant’s trial. See Tenn. R. Crim. P. 52(a). Regarding
the defendant’s post-arrest, post-Miranda warnings silence, we conclude that the due process
violation was harmless beyond a reasonable doubt. Our conclusion is grounded in the particular
facts of this case.

               The defendant’s pre-arrest silence and failure to notify law enforcement about the
accidental shooting were relevant and admissible in this case. The efficacy of that evidence was not
overshadowed by the erroneous admission of the defendant’s later silence when arrested but before
receiving Miranda warnings or, for that matter, his silence after receiving Miranda warnings.

                Furthermore, the defense theory that the Hite shooting was accidental was not
impeached solely by the defendant’s later silence. The defendant’s explanation at trial of how the
gun accidently discharged was nebulous. The physical evidence about the location of the entry
wound and the bullet’s trajectory contradicted the defendant’s testimony that Hite was propped up
on his side and reaching for the gun when it discharged. Moreover, the attempt by the defendant and
his wife to downplay the defendant’s belligerent behavior earlier that evening and to shrug off his
previously expressed suspicions about his wife’s fidelity quite effectively impeached the defendant’s
credibility.

                Finally, we note that the state did not capitalize on the defendant’s post-arrest silence
during closing arguments. The state did reinforce for the jury that the defendant’s appearance, as
captured in the photograph taken shortly after arrest, was inconsistent with a person who just hours
earlier had accidently shot Mr. Hite, but the defendant’s verbal silence was not mentioned.

              Under these circumstances we can confidently conclude that not only did the state’s
improper questioning not affect the result of defendant’s trial, but it also was harmless beyond a
reasonable doubt.

                                                   E.

               The last complaint that the defendant raises in connection with prosecutorial
misconduct is that in closing arguments, the state improperly invoked a “crime in the streets” appeal


                                                  -19-
to the jury. The state counters that the defendant reads too much into the closing arguments and that
the state did not argue for general deterrence.

               The final portion of the state’s rebuttal closing argument included the following
comments: “It doesn’t just happen everywhere else; it happens here. It happened here. The buck
stops here. The cycle of violence that has been demonstrated to you must be addressed for the sake
of this community with a verdict of guilty, and I ask you to so find.”

                Argument, it has been held, may not encourage a jury to consider general deterrence.
State v. Henley, 774 S.W.2d 908, 913 (Tenn. 1989); State v. Irick, 762 S.W.2d 121, 131 (Tenn.
1988). This prohibition includes a “crime in the streets” argument, whereby the jury is told that its
verdict makes a statement or that its verdict demonstrates that a community will not tolerate criminal
behavior. Henley, 774 S.W.2d at 913. Deterrence is completely irrelevant to the question of guilt
or innocence and therefore outside the scope of the jury's consideration. Id. In Henley, the state
“adjured the jury to let the county and the State, know that all elderly people had a right to live in
peace and quiet.” 774 S.W.2d at 913. The court was satisfied that the prosecutor's comments did
not affect the jury's decision.

                We have canvassed other case law in this area. See State v. Michael Wayne Downs,
No. 88-275-III, slip op. at 7 (Tenn. Crim. App., Nashville, Nov. 7, 1989), aff’d on other grounds sub
nom. State v. Bryant, 805 S.W.2d 762 (Tenn. 1991) (state improperly argued in connection with an
illegal narcotics prosecution, “ The judge will instruct you that he will assess the punishment, which
you assess the profit motive. [Sic] I beg you to take it away. Take it away, and send a message
across Maury County that you Nashville drug dealers and you Maury County drug dealers, if you
are going to do the crime, you're going to pay for it, dearly”) (emphasis in original); State v. Tony
Willis, No. 3 (Tenn. Crim. App., Jackson, Jan. 21, 1987) (state improperly, yet harmlessly, remarked
in closing argument that “victims had rights and that the jury should send a message back to Fort
Pillow State Prison”); State v. William Charles Jones, No. 01C01-9512-CC-00402, slip op. at 6
(Tenn. Crim. App., Nashville, June 30, 1997) (cumulative effect of a host of inflammatory
arguments, which included asking the jury to send a message by its verdict, appealing to racial
considerations, referring repeatedly to “gangs” and “gang violence,” and incorrectly stating the law
concerning reasonable doubt, resulted in reversible error). In this case, we do not construe the state’s
argument as appealing to the need for general deterrence or to the need to “send a message.” The
statement, “It [homicide] doesn’t just happen everywhere else, it happens here,” simply does not
implicate the concerns that the court’s opinions have previously addressed. Likewise, telling the jury
that the “buck stops here,” means only that the jury “in this particular case” has the final word. The
third statement that the “cycle of violence that has been demonstrated to you must be addressed for
the sake of this community with a verdict of guilty” (emphasis added), was specific to the
defendant’s trial and what the state had proved. This argument was not a plea for general deterrence.

               The state, in our opinion, did not advance a “crime in the streets argument,” and the
defendant’s claim is, thereby, rejected.



                                                 -20-
                                        V. Jury Instructions

                 The defendant on appeal challenges the trial court’s refusal to give a requested jury
instruction, similar to that given in DUI prosecutions, on the legal effect of a blood alcohol of .10%.
The trial court did charge the jury about voluntary intoxication and its effect on the required culpable
mental state. The defendant does not assign error to the trial court’s voluntary intoxication
instruction. Rather the defendant maintains that the given instruction should have been
supplemented with the DUI presumption charge. We disagree.

                 An instruction regarding the legal effect of intoxication on the ability to operate a
motor vehicle is irrelevant to the issue whether the defendant possessed the required culpable mental
state to find him guilty of one or more homicides. Giving a DUI presumption charge could have
thoroughly muddled the jury’s deliberations. The defendant asserts that there would have been no
harm in allowing the charge to the jury. Nonetheless, so long as the trial court’s instructions
correctly stated the law and “fully and fairly” set forth the law applicable to the facts, no error
resulted from the refusal to give the requested special instruction. State v. Bohanan, 745 S.W.2d
892, 897 (Tenn. Crim. App. 1987). Inasmuch as the defendant has not demonstrated that the charge
actually given was deficient and that the requested charge was relevant to the homicide issues, we
affirm the trial court’s refusal to instruct the jury as the defendant had requested.

                                           VI. Sentencing

                In his final issue, the defendant insists that his sentences are excessive because the
trial court found and weighed inappropriate enhancing factors and disregarded pertinent mitigating
factors. The defendant challenges the application of enhancement factor (2) that the defendant was
a leader in the commission of an offense involving two or more criminal actors, Tenn. Code Ann.
§ 40-35-114(2) (Supp. 2000), and enhancement factor (4) that the victim was particularly vulnerable
because of age or physical or mental disability, id. § 40-35-114(4) (Supp. 2000). On the mitigation
side, the defendant insists (1) that he should have been given the benefit of having provided
substantial assistance to law enforcement authorities, and (2) that the trial court ignored witnesses
and correspondence that had been submitted. The defendant does not suggest what sentences he
regards as appropriate.

                                       A. Standard of Review

               When there is a challenge to the length, range, or manner of service of a sentence, it
is the duty of this court to conduct a de novo review of the record with a presumption that the
determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997). This
presumption is "conditioned upon the affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances." State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991); see State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000). "The burden of
showing that the sentence is improper is upon the appellant." Ashby, 823 S.W.2d at 169. In the
event the record fails to demonstrate the required consideration by the trial court, review of the


                                                 -21-
sentence is purely de novo. Id. If appellate review, however, reflects that the trial court properly
considered all relevant factors and its findings of fact are adequately supported by the record, this
court must affirm the sentence, "even if we would have preferred a different result." State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

                The mechanics of arriving at an appropriate sentence are spelled out in the Criminal
Sentencing Reform Act of 1989. At the conclusion of the sentencing hearing, the trial court
determines the range of sentence and then determines the specific sentence and the propriety of
sentencing alternatives by considering (1) the evidence, if any, received at the trial and the sentencing
hearing, (2) the presentence report, (3) the principles of sentencing and arguments as to sentencing
alternatives, (4) the nature and characteristics of the criminal conduct involved, (5) evidence and
information offered by the parties on the enhancement and mitigating factors, (6) any statements the
defendant wishes to make in the defendant's behalf about sentencing, and (7) the potential for
rehabilitation or treatment. Tenn. Code Ann. § 40-35-210(a), (b) (Supp. 2000); id. § 40-35-103(5)
(1997).

                                     B. Arriving at the Sentence

                The defendant qualified as a Range I standard offender for sentencing. His conviction
for the second degree murder of Hite is classified as a Class A felony, with a sentencing range of 15
to 25 years. Tenn. Code Ann. § 39-13-210 (1997). In dealing with such a conviction, the sentencing
court starts with the presumption that the defendant should receive a sentence in the midpoint of the
range without any enhancement or mitigating factors. Id. § 40-35-210(c) (Supp. 2000). If
enhancement or mitigating factors do apply, the sentencing court is directed first to “enhance the
sentence within the range as appropriate for the enhancement factors, and then reduce the sentence
within the range as appropriate for the mitigating factors.” Id. § 40-35-210(d), (e) (Supp. 2000). A
similar analysis applies to the defendant’s conviction for facilitation of attempted second degree
murder. That conviction is a Class C felony, with a sentencing range of three to six years. Id. §§
39-12-107(a) (criminal attempt is an offense one classification lower than the most serious crime
attempted), 39-11-403 (b) (facilitation of the commission of a felony is an offense of the class next
below the felony facilitated) (1997). For this type of conviction, the sentencing court starts with the
presumption that the defendant should receive a minimum sentence in the range without any
enhancement or mitigating factors. Id. § 40-35-210(c) (Supp. 2000).

               The sentencing court applied three enhancement factors to the second degree murder
conviction. First, the “defendant was a leader in the commission of an offense involving two (2) or
more criminal actors.” Tenn. Code Ann. § 40-35-114(2) (Supp. 2000). Second, a “victim of the
offense was particularly vulnerable because of age or physical or mental disability.” Id. § 40-35-
114(4) (Supp. 2000). Last, the “defendant possessed or employed a firearm . . . during the
commission of the offense.” Id. § 40-35-114(9) (Supp. 2000). The defendant does not challenge
the application of this last enhancement factor. For facilitation of attempted second degree murder
conviction, the sentencing court applied enhancement factors (2) and (9). Id. § 40-35-114(2), (9)
(Supp. 2000). No mitigating factors were applied to either conviction. Weighing the enhancement


                                                  -22-
factors, the trial court arrived at a sentence of 25 years on the second degree murder conviction and
five years for the facilitation conviction. The sentences were ordered to run concurrently.

                 The defendant objects to the finding that he was a leader in the commission of the
offenses. His arguments, however, are retreads of the defense theory at trial, namely that there was
no conspiracy or plan between Newberry and himself to conduct a “shooting spree.” The sentencing
court pointed to the proof that the defendant and Newberry drove together to the trailer, that they
brought a gun with them, that the defendant used the gun to shoot Hite, and that Newberry next used
the gun to shoot Allen. Enhancement factor (2) can apply even if the defendant is not the sole leader,
but rather “a” leader. See State v. Hicks, 868 S.W.2d 729 (Tenn. Crim. App. 1993). That being said,
we believe that enhancement factor (2) was properly applied only to the second degree murder
conviction. The state concedes on appeal that this factor does not apply to the defendant’s
facilitation conviction. We agree. Moreover, we are somewhat at a loss to envision a situation
wherein a defendant, although facilitating the offense but lacking the intent to promote, assist, or
benefit from the offense, would be considered “a” leader in the offense.

                The defendant further objects that Hite was not a particularly vulnerable victim. The
trial court applied this enhancement factor for two reasons. First, if Hite was asleep when he was
shot, he was particularly vulnerable. Second, even if he was awake, Hite had retreated from the
world to his private bedroom where he could expect to be left alone.

                A victim is particularly vulnerable if, due to physical or mental limitations, she or he
is incapable of resisting, summoning help, or testifying against the perpetrator. See State v. Adams,
864 S.W.2d 31, 35 (Tenn. 1993). Moreover, a victim’s physical or mental limitation may be
temporary or self-induced. See State v. Nicholas Williams, No. M1999-00780-CCA-R3-CD, slip op.
at 12 (Tenn. Crim. App., Nashville, July 3, 2001). Whether a victim’s limitations render him or her
particularly vulnerable is a factual issue to be determined on a case-by-case basis. See State v. Gray,
960 S.W.2d 598, 611 (Tenn. Crim. App. 1997).

                Enhancement factor (4) has been applied in the context of a sleeping victim. State
v. Nicholas Williams, slip op. at 12 (the sleeping, intoxicated minor victims were particularly
vulnerable to the defendant's attack, thus justifying application of enhancement factor (4)); State v.
Clayton Eugene Turner, II, No. 03C01-9805-CR-00176, slip op. at 33-34 (Tenn. Crim. App.,
Knoxville, Oct. 6, 1999) (sleeping ten-year-old was particularly vulnerable to appellant's assault;
record justifies application of enhancement factor (4)), perm. app. denied, (Tenn. 2000); State v.
Tony Wayne Snyder, No. 03C01-9403-CR-00101, slip op. at 17 (Tenn. Crim. App., Knoxville, Nov.
21, 1995) (sleeping seven-year-old was particularly vulnerable to the offense of arson), perm. app.
denied (Tenn. 1996). We see no reason why, as in this case, a sleeping adult could not be regarded
as particularly vulnerable to being shot.3


         3
            W e need no t pass on the sentencing court’s finding that the victim was particularly vulnerable because he had
retreated to the sanctity of his bed room. There well could be situations in which the victim’s physical limitations derive
                                                                                                              (con tinued...)

                                                           -23-
              In our opinion and pursuant to de novo review of the record, the trial court correctly
considered and applied enhancement factor (4).

                As for mitigating factors, the defendant laments the sentencing court’s refusal to
consider mitigation factor (10) that the defendant assisted the authorities in locating or recovering
any property or person involved in the crime. See Tenn. Code Ann. § 40-35-113(10) (1997).
Because the defendant did not help locate or recover the murder weapon until he had secured legal
representation, he concludes that the sentencing court penalized him for exercising his constitutional
right to counsel.

                 Mitigating factor (10) provides, “The defendant assisted the authorities in locating
or recovering any property or person involved in the crime.” Tenn. Code Ann. § 40-35-113(10)
(1997). This language does not restrict consideration to defendants who render assistance prior to
securing legal representation or before proceeding to trial. It is sufficient if the assistance is provided
sometime prior to sentencing. Cf., State v. Lord, 894 S.W.2d 312, 318 (Tenn. Crim. App. 1994)
(factor (10) "is broad enough to apply not only to locating any fellow perpetrators and instruments
of crime, but to locating victims and property that are the objects of criminal conduct, as well").
Sentencing courts, however, are not locked into assigning any particular weight to this mitigating
factor. Assistance can be evaluated by taking into account factors such as (1) the nature and extent
of the defendant’s assistance; (2) the significance and usefulness of the defendant’s assistance; (3)
the truthfulness, completeness, and reliability of the assistance; (4) any risk of injury to the defendant
or retaliation directed to the defendant’s family resulting from the assistance provided; and (5) the
timeliness of the assistance provided. See, e.g., State v. Jon Robert Goodale, No.
M2000-02140-CCA-R3-CD, slip op. at 9 (Tenn. Crim. App. Nashville, Sept. 14, 2001) (from
beginning of defendant’s involvement with police, he lied and mislead authorities as well as the
victim's family); State v. Damien Jackson, No. M2000-00763-CCA-R3-CD, slip op. at 12 (Tenn.
Crim. App., Nashville, Jul. 18, 2001) (only reason defendant told police where guns were was to
keep his mother out of trouble); State v. Ricky A. Burks, No. M2000-00345-CCA-R3-CD, slip op.
at 30 (Tenn. Crim. App., Nashville, May 25, 2001) (defendant called 911 three times to mislead the
police and came to police station to outsmart the police) (collecting and citing cases involving
mitigating factor (10)).

                In this case, the sentencing court should have considered the assistance that the
defendant provided. Even so, in our opinion, mitigating factor (10) should be afforded slight weight
and does not justify a modification of the defendant’s sentences. The defendant’s attempt to lead
law enforcement to the location of the discarded murder weapon was unsuccessful and resulted only
in the recovery of a bag that might have been a magazine pouch. The defendant’s assistance was not
particularly useful or substantial.


         3
           (...continued)
from physical “location” instead of “body imp airm ent.” F or instance , a victim who is confined to a jail cell would be
particularly vulnerable to a shooting attack by someone outside the cell door because no avenue of escape from the cell
exists.

                                                         -24-
                Because we conclude that mitigating factor (10) applies in this case, it is unnecessary
to tackle the defendant’s assertion that he was punished at sentencing for the exercise of his
constitutional rights. The defendant does not couch his comments in terms that squarely raise a
constitutional violation or deprivation. See State v. National Optical Stores Co., 189 Tenn. 433, 225
S.W.2d 263 (1949) (court will not pass on constitutionality of statute or any part unless absolutely
necessary for determination of case and present rights of the parties). At any rate, we perceive an
important distinction between constitutionally protected conduct that is used to “enhance” a sentence
and the failure to reward a defendant with mitigating credit at sentencing for such conduct.

                The defendant’s final sentencing complaint is that the trial court failed to give any
sentencing consideration to numerous letters and a petition offered on the defendant’s behalf. We
note that numerous letters composed by friends and family of both the defendant and of the deceased,
Michael Hite, were addressed and submitted to the presentence investigator, along with a petition
signed by individuals supporting a minimum sentence for the defendant. The presentence
investigator, in turn, filed the petition and letters as an addendum to the original presentence report,
and copies were sent to the trial court and defense and prosecution counsel.

                 It was the consensus of those writing letters on the defendant’s behalf that he should
receive a minimum sentence, while those who wrote about the loss of Michael Hite insisted that the
defendant deserved the maximum penalty that the law could extract. The trial court ruled that,
except for two victim impact statements submitted by Mark Allen and by Hite’s mother, the letters,
petitions, and articles that had been received were “inadmissible,” which we interpret to mean that
these materials were not considered in arriving at the sentence. To facilitate appellate review, the
trial court did permit the materials to be made part of the record.

                 Under Tennessee law, a trial court “shall” afford the parties at a sentencing hearing
the opportunity to be heard and to present evidence relevant to the particular sentencing task at hand.
Tenn. Code Ann. § 40-35-209(b) (Supp. 2000) (emphasis added). The sentencing statutes and
principles permit hearsay to be admitted, with two exceptions. As with other information, any
hearsay must be “relevant to the sentencing of the defendant,” and it should be “reliable.” Id.; see
State v. Mounger, 7 S.W.3d 70, 76 (Tenn. Crim. App. 1999) (parties shall be afforded opportunity
to be heard and present relevant evidence at sentencing). Accordingly, the admissibility of hearsay
letters written in connection with an upcoming sentencing determination will turn upon reliability
and relevancy.

                  Before reaching the question of evidentiary admissibility, however, a sentencing court
must determine if the hearsay letters are properly before it. It is inappropriate for a citizen to
communicate with or write directly to a sentencing judge about a pending case. In that situation,
“most judges, knowing that such letters are improper, either don't read the letters or don't consider
the letters in reaching their decision.” State v. Birge, 792 S.W.2d 723, 725 (Tenn. Crim. App. 1990);
see State v. Bud Cash, No. 286, slip op. at 23 (Tenn. Crim. App. Knoxville, Jan. 30, 1992) (“All of
the letters were sent directly to the trial judge. He correctly noted that such a procedure was
improper and stated that he had not read most of the letters.”). Even so, such letters should be made


                                                 -25-
part of the record of the case to provide notice to the parties and to avoid the appearance of improper
influence. Birge, 792 S.W.2d at 725.

                 It appears to us that the hearsay letters and the petition in this case were not funneled
straight to the sentencing court. Evidently, the materials were solicited by counsel for the parties and
were addressed and submitted to the presentence investigator who then incorporated the materials
into an addendum to the original presentence report. Copies of the addendum were forwarded to
counsel for the parties and to the sentencing court. During the sentencing hearing, the defendant
requested that the sentencing court consider the materials in the addendum, which the court declined
to do. We are satisfied that the materials were properly before the sentencing court. See State v. Bud
Cash, slip op. at 23-24 (although letters sent directly to trial judge, the defendant subsequently
adopted and proffered them as an exhibit at sentencing hearing; trial court’s “summary refusal” to
review the letters was inappropriate).

                Unlike the Bud Cash sentencing court that summarily refused to review character
letters properly before it, the court in this case apparently perused the materials sufficiently to
conclude that the defendant’s supporters were advocating a minimum sentence, while Hite’s friends
and family were urging a maximum sentence. Unless and until public opinion polls are introduced
and approved as a suitable basis for arriving at an appropriate sentence for a convicted defendant,
hearsay opinions, such as expressed in this case, are irrelevant to the sentencing process and,
therefore, inadmissible.

                 Moreover, even if there is other personal history type of information contained in the
materials, the relevance of the information is not explained by the defendant. We recognize that
character letters are frequently submitted for sentencing and that, generally speaking, character letters
should be given due consideration. See State v. Bud Cash, slip op. at 23. In this particular case,
however, the defendant was facing a certain incarcerative sentence for his second degree murder
conviction. At sentencing, the defendant did not explain how the petition or the letters were relevant
to rebut the statutory enhancement factors or to support any of the mitigating factors being offered.
We are loath in these circumstances to fault the sentencing court’s refusal to take these materials into
account in imposing a sentence.

                In summary, we conclude that enhancement factors (2), (4),and (9) are applicable to
defendant’s conviction for second degree murder, and the trial court’s sentencing based on those
factors is appropriate; the defendant’s 25-year sentence on this conviction is affirmed.

                                           VII. Conclusion

                In conclusion, the evidence at trial was legally sufficient to support the defendant’s
convictions for second degree murder and facilitation of attempted second degree murder, and the
sentences imposed are appropriate. The jury instructions adequately explained the relevant legal
principles, including voluntary intoxication and its effect on the required culpable mens rea for the
charged and lesser-included offenses. The verdict, we conclude, was not tainted by prosecutorial


                                                  -26-
misconduct, and the jury was not improperly allowed to consider expert testimony or to view
photographs of the deceased and the defendant. While the state should not have been permitted to
question the defendant about his post-arrest silence, the error in this instance was harmless. The
judgment of the trial court is, therefore, affirmed.



                                                     ____________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




                                              -27-
