         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                     August 9, 2005 Session

           STATE OF TENNESSEE v. CLAUDE FRANCIS GARRETT

                     Appeal from the Criminal Court for Davidson County
                             No. 92-B-961   Seth Norman, Judge



                    No. M2004-02089-CCA-R3-CD - Filed December 1, 2005


The defendant, Claude Francis Garrett, appeals his Davidson County Criminal Court jury conviction
of first degree felony murder, which resulted in a sentence of life imprisonment. On appeal, he
claims that (1) the convicting evidence was insufficient; (2) three prosecution witnesses presented
false testimony; (3) the trial court erred in admitting expert testimony; (4) the trial court erroneously
instructed the jury on various points of law; (5) the trial court erred in failing to require a witness to
answer defense counsel’s questions on cross-examination; (6) the trial court erred in denying the
defendant’s motion for the payment of travel expenses for a non-resident witness; (7) the state
withheld exculpatory evidence; and (8) he was denied due process of law. Following our review,
we affirm the conviction.

               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 DAVID G. HAYES and
JERRY L. SMITH , JJ., joined.

Dwight E. Scott, Nashville, Tennessee, for the Appellant, Claude Francis Garrett.

Paul G. Summers, Attorney General & Reporter; Preston Shipp, Assistant Attorney General; Victor
S. Johnson, III, District Attorney General; and Jon Seaborg and Nancy Kim, Assistant District
Attorneys General, for the Appellee, State of Tennessee.

                                               OPINION

        The conviction results from a charge that, in the early-morning hours of February 24,
1992, the defendant started a fire in the Davidson County home in which he and the 24-year-old
victim, Lori Lance, were residing. After the firefighters’ entry into the smoldering house, they found
the victim lying prone in a utility room in the rear of the small house. The utility room door was
closed, and the victim lay under an aluminum lawn chair and some toys. The victim died of smoke
and gas inhalation.
                 The trial presently under review is the defendant’s second trial on the charged offense.
The first trial resulted in a first degree murder conviction that was vacated by this court on appeal
in the defendant’s post-conviction proceeding. See Claude Francis Garrett v. State, No.
M1999-00786-CCA-R3-PC (Tenn. Crim. App., Nashville, Mar. 22, 2001) (vacating the conviction
and ordering a new trial on the basis of the state’s withholding of exculpatory information).

               Prior to the second trial, the court held an evidentiary hearing upon the defendant’s
motion to dismiss the indictment. In his motion, the defendant claimed that the state had lost or
destroyed physical evidence, including crime-scene photographs. In the hearing, a Tennessee Bureau
of Investigation (TBI) forensic analyst testified that she analyzed material samples taken from the
burned house by fire investigator Kenneth Porter, including soil from under the house, liquid from
the driveway, wood from the floor inside the front door, and a ten-gallon plastic container outside
the house. She also analyzed material samples submitted by Metro police detective David Miller.
 Her analysis was designed to determine the presence of any petroleum distillate in the samples.

               Investigator Porter testified in the hearing that he took the samples of soil and of
wood from the floor near the front door because he thought that the floor in that area of the house
was the point of origin of the fire. He delivered his samples to, and retrieved them from, the TBI
laboratory. Later, following the defendant’s conviction in his first trial, Mr. Porter destroyed the
samples.1

                Regina Draper, an investigator with the district attorney general’s office, testified in
the hearing that, in August 1993, she checked out 38 crime-scene photograph negatives from the
police property room, delivered them to an assistant district attorney general, and did not take them
back to the police department. She testified that the negatives were not in the district attorney
general’s file and that she had no knowledge of their whereabouts.

                Following the hearing, the trial court ruled that the presence of Mr. Porter’s physical
samples were unnecessary to assuring a fair trial because the defendant could rely upon laboratory
analysis of the samples that showed that they contained no petroleum distillates. The trial court
opined that the defendant failed to establish that the photograph negatives were not the negatives of
photographs introduced into evidence in the defendant’s first trial and that he, therefore, failed to
show that they were unavailable.

              Also, prior to the second trial, the court conducted a hearing upon the defendant’s
challenge of Agent James Cooper as an expert witness on the cause of the fatal fire in the present


         1
          James Cooper, an agent of the Federal Bureau of Alcohol, Tobacco, and Firearms, testified in the hearing that
the Metro police department asked him to assist them in the investigation of the fire that caused the victim’s death. He
collected some material samples from the floor beneath the baseboard of the front room in the house. W e glean from
the evidence presented at trial that Agent Cooper’s collected samples were given to Detective M iller and that these
samples were the ones delivered to the TBI laboratory by Detective Miller. Apparently, the Cooper/Miller samples
yielded positive test results for petroleum distillates while the Porter samples yielded negative results. The Cooper/Miller
samples were not destroyed and were presented as evidence in the trial now under review.

                                                            -2-
case. In the hearing, Agent Cooper testified about his background and training as an arson
investigator, and the trial court ruled that the witness was qualified to render his opinion on the
origin of the fire.

                 The defendant’s second trial began on July 21, 2003. The victim’s mother, Sandra
Lee Jones, testified that she was concerned about the victim’s safety in the house that she occupied
with the defendant because the house had no rear exit and was heated by a kerosene heater. Ms.
Jones explained that, years before the victim’s death, she and her family had witnessed a fire in their
neighborhood that had killed a child, and as a result, Ms. Jones had stressed fire safety to her family,
including the victim. She testified that the victim had installed a smoke alarm in the kitchen, and
Ms. Jones noticed the alarm on the kitchen wall three days before the fire. Ms. Jones testified that
the victim had bought a fire extinguisher a week before the fire. She testified that, when she went
to the hospital following the fire, the defendant held up his bandaged hands to her, said he was burnt,
and said nothing about the victim. On cross-examination, Ms. Jones testified that she did not recall
whether the victim had said anything about the defendant painting the kitchen, but Ms. Jones did
recall seeing paint buckets in the kitchen three days before the fire.

                 Michael Alcorn testified that he lived across the street from the victim and the
defendant. On the morning of February 24, 1992, his wife woke him and told him that the house
across the street was on fire. Mr. Alcorn testified that he put on trousers and ran across the street.
He testified, “I noticed Mr. Garrett stumped [sic] down by a tree when I first came out.” The
defendant was 25 or 30 feet away from the burning house. Mr. Alcorn testified that, when he crossed
the street, the defendant jumped up, grabbed a lawn chair, started to break the windows on the side
of the house, and hollered for the victim. The defendant broke out each bedroom window and then
began striking the plywood that covered the bathroom window with an axe. The defendant then
began spraying the front room with a garden hose. Mr. Alcorn opined that the first fire truck arrived
within five to ten minutes. The firefighters extracted the victim from the house and placed her in
an ambulance.

               The defendant was in the Alcorn home when Mr. Alcorn returned from work at 5:30
or 6:00 p.m. on February 24, 1992. Mr. Alcorn testified that his wife informed him that the victim
had died. The defendant spent the night in a car in the Alcorns’ yard, and Mr. Alcorn saw him the
next morning. Mr. Alcorn testified that the defendant never mentioned the victim in Mr. Alcorn’s
presence.

                 On cross-examination, Mr. Alcorn disagreed that during and following the firefight
the defendant was in a state of panic. Although the defendant screamed “Lori” at each window, Mr.
Alcorn opined that the defendant’s emotional state was “so-so.” Mr. Alcorn agreed that the
defendant had burns on his hand and that his facial hair was singed. Mr. Alcorn had smelled alcohol
on the defendant but could not say that the defendant was intoxicated. Mr. Alcorn acknowledged
that, in his prior statement, he did not mention the defendant’s squatting beside the tree.




                                                  -3-
                Bobby Alcorn, Michael Alcorn’s son, testified that he was 17 years old at the time
of the fire. At approximately 5:00 on the morning of February 24, 1992, he was preparing to go to
school and heard his dog barking and a “kind of bang” that sounded “like a shotgun.” Within a few
minutes, he heard his mother screaming that the defendant’s house was on fire. He looked across
the street, saw the fire, and saw the defendant “kind of squatted down by a tree.” Bobby Alcorn
testified that when his father ran across the street, the defendant rose, took a lawn chair, and broke
a window in the house. The defendant used an axe to attack the plywood covering on the bathroom
window before giving the axe to Bobby Alcorn. Bobby Alcorn overheard the defendant telling
Michael Alcorn that he did not believe the victim would have gone to the utility room.

                Bobby Alcorn stayed home from school that day to be with his mother, who was
distraught about the fire and the victim’s death. During the day, he talked with the defendant and
attributed the following statement to the defendant:

               [“]I know they think I done it,[”] and he was referring to the police.
               And he said, [“]I know they think I done it. If I would have done it,
               I’d have to go around back and get a gasoline can, go to the car and
               syphon it out, and then I’d had to pour it around on the love seat, I
               mean on the couch and around the door facing and I would have had
               to light it.[”]

Bobby Alcorn testified that during the day of February 24, the defendant never spoke of the victim;
the defendant was “nervous” and “acted different.” He testified that the defendant would peep out
the windows of the Alcorn home and would retreat to the bathroom if someone turned into the
driveway.

              On cross-examination, Bobby Alcorn acknowledged that in his prior statement, he
did not mention the defendant’s squatting beside the tree.

                 The forensic pathologist who performed an autopsy on the victim testified that the
victim died from inhaling smoke and noxious gases, probably succumbing within 10 to 30 minutes
after she began to breathe smoke. The victim’s blood alcohol level was .06 percent. The physician
testified that the victim had burns on her head and left arm and that the burns probably resulted from
heat build-up in the utility room where the victim was found. Other than the burns, the victim’s
body had suffered no other trauma. The physician opined that fire victims will frequently retreat to
a room away from the fire and have been known to burrow under objects to protect themselves.

               The doctor visited the crime scene and looked at a bar latch on the outside of the
utility room door. She testified that the victim was five feet, six inches tall, weighed 135 pounds.
She opined that had the victim been inside the utility room with the latch engaged, she should have
been able to break through the latch from the inside of the utility room.




                                                 -4-
                Otis Jenkins testified that he was a Metro fire department captain in 1992 and
responded to the fire at the victim’s and the defendant’s house. He “came upon a door that had a
locking mechanism of some sort on it, got the door open, [and] went inside.” He recalled that the
door “resisted” and that he had “to work it.” He found the victim in the room behind the door; she
was lying on the floor between the washing machine and the wall. On cross-examination, Mr.
Jenkins testified that the door was “latched or locked. I don’t recall exactly what.” He did not recall
telling Detective Miller that the door was not latched, maintaining that he had always believed that
the door was latched when he discovered it. He testified that although he wore thick gloves, he
worked the mechanism on the latch to open the door. Because the alarm on Mr. Jenkins’ self-
contained breathing unit sounded, he left it to other firefighters to remove the victim. Later, while
outside, he saw the defendant try to enter the house before being escorted away by two firefighters.

                 Terry Nickens, another Metro fire department captain, testified that he arrived at the
fire scene at 5:15 a.m. When he heard that a person remained inside the house, he accompanied
firefighter Patrick Hunt on a search and rescue mission inside the house. When the victim was found
inside the utility room, Mr. Nickens entered the room. The victim’s legs were tangled in tricycles,
toys, and other objects. Mr. Nickens and Mr. Hunt carried the victim out of the house at
approximately 6:03 a.m. Mr. Nickens noticed that the defendant “[s]eemed rather calm for the
situation at hand.”

                 Patrick Hunt testified that he was a firefighter and an emergency medical technician
in 1992 when he arrived at the fire scene, where he saw heavy smoke and flames coming from the
front door. The defendant approached him and told him that his girlfriend was inside the house. The
firefighters were able to “knock down” the fire quickly, and Mr. Hunt began searching for the victim.
Before the victim was found, Mr. Hunt’s breathing unit became depleted of air, and he returned to
the fire truck for a new one. The defendant approached him again and said, “I know where she’s at.
She’s in the back of the house through a door in the kitchen.” Mr. Hunt re-entered the house, and
he and Mr. Nickens went to the utility room door that Mr. Jenkins had just opened. The victim was
lying prone on the floor under a folding chair and some toys. She had no life signs. He opined that
he and Mr. Nickens removed the victim at about 5:42 a.m. He recalled that Mr. Jenkins had told him
that Jenkins had to unlatch the utility room door. He acknowledged on cross-examination that it is
not uncommon for someone being suffocated to retreat and burrow under objects.

                Another Metro fire department captian, William McCormick, testified that he
supervised the fire scene and did not enter the house. During the firefight and rescue operation, the
defendant went to the front of the house and looked into the windows. Mr. McCormick and another
firefighter escorted the defendant away from the house. The defendant told Mr. McCormick that the
person inside the house was his sister. The defendant was agitated and smelled of alcohol, although
his speech was not slurred, and he did not stagger. When the victim was placed in the ambulance,
the defendant climbed onto the running board and tried to look inside the ambulance. Mr.
McCormick agreed that Mr. Jenkins had told him that the utility room door was latched when he
found it.



                                                 -5-
               David Miller testified that he investigated the fire in his capacity as a Metro homicide
detective. He and Detective Mike Roland arrived at the scene at 6:20 a.m. on February 24, 1992.
After Kenneth Porter told him that the fire was started with an accelerant, Mr. Miller met with the
defendant, obtained the defendant’s clothing, and requested the defendant to render a hand-swab
sample, which the defendant declined.

                 That evening, after obtaining a search warrant, Mr. Miller accompanied Agent James
Cooper in recovering material samples from the burned house. He testified that in the kitchen, they
found a bedspread on the floor, lying beneath the refrigerator and “all the way around out towards
the [utility room] door.” He testified that the bedspread appeared to be soaked in some kind of
accelerant, that he could smell an accelerant, and that he found a plastic container nearly full of what
appeared to be kerosene on the floor near the utility room door. He testified that Otis Jenkins had
told him that the utility room door was latched. Mr. Miller testified that he tested the latch by going
inside the utility room and being unable to push his way out through the door after Agent Cooper
experimentally engaged the latch. Mr. Miller acknowledged, however, that he did not “put his
shoulder into it.” Mr. Miller found a smoke detector lying on either the washer or dryer in the utility
room. The detector had neither a covering nor batteries. Mr. Miller testified that Mr. Cooper
collected material samples and gave them to him, that he placed them inside airtight metal
containers, and that later he delivered them to the TBI laboratory.

                 Mike Roland testified that, as a homicide detective, he assisted David Miller in
investigating the victim’s death. He initially interviewed members of the Alcorn family to “get a
grasp” of the situation and learned from them that they had heard an explosion and had seen the
defendant running around the house yelling and perhaps trying to get into the house. Mr. Miller then
interviewed the defendant after the fire and recounted that the defendant said that in the evening
before the fire, the defendant and the victim had been out drinking, they returned home, and fell
asleep in the living room before retiring to the bedroom. Mr. Roland testified that the defendant told
him that he had awakened, smelled smoke, yelled for the victim, and started out of the house. The
defendant said that he noticed the victim heading for the kitchen. In a later interview, the defendant
told Mr. Roland that he was leading the victim out of the bedroom by the hand when she jerked away
and went toward the kitchen. Mr. Roland presented audiotapes and transcripts of the defendant’s
statements.

                 On cross-examination, Mr. Roland testified that the victim appeared to have been
dressed for bed. He recalled that the defendant’s hair was singed and that one hand was bandaged.
After the fire, the defendant did not appear to be upset or intoxicated. Mr. Roland acknowledged
that before the officers collected evidence on the evening of February 24, the fire department had
cleaned the floor in the house with a booster hose. He remembered that water stood in the kitchen
floor. When, in reference to a photograph, Mr. Roland was asked about a clean blue cigarette lighter
that appeared out of place on the charred dresser in the bedroom, he agreed that someone must have
left the lighter there after the fire and that its presence could signify contamination of the crime
scene.



                                                  -6-
              The TBI analyst who tested the material samples collected by Kenneth Porter and
James Cooper testified that a section of the bedspread and the plastic container from the kitchen,
the smoke detector, and living room debris collected from near the front door tested positively for
the presence of a kerosene range distillate.2 The defendant’s trousers and shirt contained no
distillate.3

                On cross-examination, the TBI analyst testified that she received from Kenneth Porter
a soil sample taken from beneath the suspected point of fire origin in the front room floor, a piece
of carpet taken from the same location on the front room floor, a ten-gallon plastic can found behind
the house, and liquid collected from the driveway. None of these samples contained any chemical
distillates. A sample of wood flooring taken by Mr. Porter from beneath the front door sill revealed
the presence of terpenes, but the analyst explained that the presence of this chemical probably
resulted from the use of wood preservative on the door or the wood floor. The wood samples
contained no kerosene range distillate. The analyst acknowledged that kerosene range distillate
presence on some of Mr. Miller’s samples could have resulted from transference by handling by the
officers. She admitted that kerosene could have been present in some of the samples for an extended
period of time.

                James Cooper testified that he had retired as an agent of the United States Department
of Treasury Bureau of Alcohol, Tobacco and Firearms (ATF). As an ATF agent, he had been a
certified fire investigator and a fire-cause and origin specialist. Because local authorities had
requested that he assist in investigating the fire that killed the victim, he inspected the house on the
evening of February 24, after the fire department had washed the flooring with a booster hose. He
opined that the washing did not obstruct or hamper his observation of the burn pattern. He
concluded that the fire began in the front room. He found no evidence of an electrical or other
accidental cause of the fire. A kerosene heater found in the bedroom was not the cause of the fire.
He discovered a saturation of kerosene in the kitchen. The utility room door was closed during the
fire. Mr. Cooper testified that Otis Jenkins told him that he had “had to use two hands to slide the
bolt on the latch to the other side to open the door.”

                Mr. Cooper testified that he collected material from beneath the baseboard in the front
room because liquid spilled in the floor would typically run under a baseboard and because the
flooring beneath the baseboard was free of foot traffic occurring during and after the firefight. Also,
he found a “V” pattern on the baseboard, which to him was “like a red flag waving at you,”
indicating an accelerated fire. Mr. Cooper presented a number of pictures and slides of the fire
scene. He opined, “[T]his was a deliberately set fire, arson. Somebody went into the house, and
their design, their intent, was to spread the fire from the front room to the back where the victim
was.”



       2
            These items had been collected by Mr. Cooper and transported to the laboratory by David Miller.

        3
            Apparently, these were the items collected by Mr. Roland, who assisted Mr. Miller in investigating the case.

                                                           -7-
                 Defense counsel engaged Mr. Cooper in a rigorous cross-examination, during which
the witness testified that the kitchen floor contained “[q]uite a bit of water,” that a portion of the
liquid on the bedspread was water, and that he relied upon Detective Miller’s report of his interviews
of the firefighters and did not interview them personally other than to talk with Otis Jenkins. Mr.
Cooper did not see the house before the booster-hose cleansing and did not see the front-room
furniture in its pre-fire position. He insisted, however, that the flooring in the front room evinced
a “pour pattern,” indicating that a liquid accelerant had been poured in the floor. He admitted that
polyester from furniture could melt onto the floor and simulate a pour pattern but maintained that
he could distinguish a pour pattern from a polyester meltdown. He admitted that one photograph
showed that the latch bar was dark, as if it was coated in carbon, which might indicate that the bar
was not inserted into the latch housing during the fire.

                  Fire investigator Kenneth Porter testified for the defendant. He arrived on the scene
of the fire at 6:30 a.m. on February 24, 1992. He determined that the point of origin was in the floor
at the front door and that the fire was started via a liquid accelerant. He opined that the pour pattern
covered 60 or 75 percent of the front room floor. The bedspread was not mentioned in Mr. Porter’s
report. He testified that a smell of kerosene in the house could have emanated from the kerosene
heater. He collected samples of soil beneath, and carpet from, the front room floor at the suspected
point of origin, and he collected a wood sample from under the front door sill. He submitted these
samples to the TBI but destroyed them when he retired from the fire marshall’s office. He testified
that as a means of enhancing his investigation, he had the front room furniture, which had been
removed during the firefight, returned to its pre-fire position in the front room. He testified that
radiant heat can sometimes simulate a pour pattern on a wood floor.

               Ruby Alcorn, the wife of Michael Alcorn, testified that she was awakened on the
morning of the fire by a commotion outside “like someone hollering.” She did not hear an
explosion. She looked outside and saw flames emanating from the front door and window of the
house across the street. The defendant was standing by a tree, jumping up and down and screaming,
“Lori.” Ms. Alcorn yelled for her husband, who got up, donned his trousers, and ran across the
street. Her son, Bobby, followed his father. On cross-examination, she testified that the defendant
stayed in the Alcorn home during the day of the fire. She attributed to him a statement very similar
to that recounted by Bobby Alcorn that the defendant knew the police suspected him of arson,
followed by his detailing what he would have had to have done to set the fire. She also agreed that
during the day, whenever someone came to the Alcorn home, the defendant would go to the back
of the house. At one point, he spent a long time in the bathroom, where he shaved his facial hair,
leaving a mess for her to clean up. She opined, “He didn’t worry about anybody but himself.”

               Metro police officer John Murphy testified that he was instructed to secure the fire
scene and arrived at 9:30 a.m. on February 24. He was told to leave – and did leave – at 11:00 or
11:30 a.m. He did not recall whether other officers arrived to secure the scene.




                                                  -8-
               Regina Draper Beene4 testified that in her capacity as an investigator for the district
attorney general’s office, in August 1993, she obtained 38 negatives of pictures taken by Officer
James Goodman. She delivered the negatives to an assistant district attorney general but never
retrieved them. She testified that she attempted to locate them but was unable to do so. She agreed
that some of the pictures offered into evidence in the defendant’s first trial had been taken by James
Goodman and could have been produced from any number of the 38 negatives.

                James Goodman testified that as a Metro police officer he took photographs of the
fire scene but never reviewed the photographs.

               Betty Satterfield, the defendant’s mother, testified that she lived in Kansas in 1992
and that when she learned that the defendant had been burned, she sent for him to come to her home.
When he arrived, he had burns on his face and hands.

               R.J. Corbin testified that as a firefighter, he arrived on the fire scene at 5:08 a.m. on
February 24, 1992. Upon his arrival on the first truck to respond, the defendant hammered on the
truck door and said there was a woman inside the house. Mr. Corbin testified that approximately
40 minutes after he arrived, he had to escort the defendant away from the front of the house.

                Stewart Bayne testified for the defendant as an expert in fire investigation and fire
science. He acknowledged that he did not visit the scene of the fire until after the house had been
restored but maintained that he has testified in other cases despite being unable to personally inspect
the fire scene. In the present case, he studied the records from the first trial, interviewed the
firefighters, and examined the pictures. He testified:

                  This fire was a Class A fueled with paper and plastic fabrics,
                  accidental natural growing, meaning unaccelerated by a petroleum
                  compound type fire. Secondly, analysis of the burn patterns on Ms.
                  Lance and Mr. Garrett proved that Ms. Lance and Mr. Garrett were
                  exposed to that fire at the same point in time with the fire . . . .
                  Furthermore, there are burn patterns indicating a direction quality to
                  the fire, and a height in the room to the fire. My findings included
                  that this fire was not fueled by kerosene, the point of origin was not
                  on the floor, rather it was in the love seat. And the ignition source
                  was the carelessly dropped cigarette from an intoxicated, wasted as
                  it were, person.

Mr. Bayne elaborated that based upon the medical reports, the victim and the defendant sustained
burns on their faces and left arms as a result of being exposed to the flames in the living room at the
same time. He opined that because the burns were on the upper portions of the victim and the
defendant, the fire did not originate in the floor. He believed that the burns on the couple were


       4
           By the time of trial, Ms. Draper had married and was identified as Regina Beene.

                                                         -9-
consistent with them trying to reach the front door and with the defendant’s statement to him that,
after a night of drinking, the couple returned home and smoked cigarettes, with the victim falling
asleep on the love seat and the defendant falling asleep on the couch.

                Mr. Bayne opined that the fuel load in the front room, including the furniture and the
wood paneling covering the sheetrock walls, explained the fire growth. He opined that the defendant
did not receive his burns from igniting kerosene and that it was “impossible” for the victim to have
received her burns from inside the utility room. He dismissed the burn pattern on the front room
floor as resulting from radiant heat or “flash over.”

                Mr. Bayne testified that the utility room door edge had scuff marks which indicated
that the door stuck in the door frame. He testified that the defendant confirmed to him that the door
tended to stick. Mr. Bayne opined that the latch bar was “very carbonized.”

                On cross-examination, Mr. Bayne testified that in reaching his conclusions, he
ignored Otis Jenkins’ claim that the utility room door had been latched. He declined to say how
much time elapsed between the deposit of a lit cigarette in the love seat and the onset of a blaze,
although he suggested that the process could take minutes or hours. He opined that the presence of
the plastic container of kerosene in the kitchen was irrelevant to the cause of the fire. He conjectured
that because the container had three holes in the top, the firefighters or investigators could have
sloshed some of the kerosene onto the bedspread.

                      The defendant did not testify in the case.5

                                          I. Sufficiency of the Evidence

               The defendant claims that the evidence is insufficient to support a conviction of
felony murder because the state failed to prove all of the elements of arson, the felony upon which
the felony murder conviction is based.

                  As an appellate court reviewing the sufficiency of the convicting evidence, we
essentially view a different evidentiary mosaic than did the trier of fact. We see the same tesserae
as did the trier of fact, but on appeal the full mosaic has been altered: Different hues emanate from
the fact trier’s inferences and credibility shadings, and from the appellate perspective of the overall
image, we see in highlight the features most favorable to the state. See State v. Cabbage, 571
S.W.2d 832, 836 (Tenn. 1978) (stating that on appeal, the state is entitled to the strongest legitimate
view of the evidence and all reasonable or legitimate inferences which may be drawn therefrom).
Our review of the evidentiary mosaic, thus highlighted, is aimed at determining whether any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Tenn.
R. Crim. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 2782 (1979).


          5
              The defendant underwent a voir dire examination by the trial judge and counsel that validated his decision not
to testify.

                                                             -10-
                 A jury’s verdict of guilty removes the presumption of innocence and raises a
presumption of guilt on appeal. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The jury’s
guilty verdict, approved by the trial judge, accredits the testimony of the witnesses for the state and
resolves all factual conflicts in favor of the theory of the state. State v. Hatchett, 560 S.W.2d 627,
630 (Tenn. 1978); State v. Townsend, 525 S.W.2d 842, 843 (Tenn. 1975). On appeal, the defendant
has the burden of overcoming the presumption of guilt. State v. Brown, 551 S.W.2d 329, 331 (Tenn.
1977).

                 A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two. State v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987). Before an accused
may be convicted of a criminal offense based upon circumstantial evidence, the facts and the
circumstances “must be so strong and cogent as to exclude every other reasonable hypothesis save
the guilt of the defendant, and that beyond a reasonable doubt.” State v. Crawford, 225 Tenn. 478,
482, 470 S.W.2d 610, 612 (1971). “A web of guilt must be woven around the defendant from which
he cannot escape and from which facts and circumstances the jury could draw no other reasonable
inference save the guilt of the defendant beyond a reasonable doubt.” Id. at 484, 470 S.W.2d at 613.

                 For purposes of the present case, felony murder is committed by one who kills another
in the perpetration of, or attempt to perpetrate, any arson, Tenn. Code Ann. § 39-13-202(a)(2) (2003),
and arson is committed by one who knowingly damages any structure by means of a fire or explosion
“[w]ithout the consent of all parties who have a possessory, proprietary or security interest therein,”
id. § 39-14-301. The defendant posits that the state failed to establish that the house and its contents
were damaged without the consent of all persons having a possessory or propriety interest therein.

                We disagree. The evidence showed that the deceased victim resided with the
defendant in the fire-damaged house. The evidence also revealed that the house contained household
furnishings and other personalty. A photograph depicted smoke-damaged bedroom furniture where
the victim and the defendant slept. All in all, the circumstantial evidence was sufficient to establish
that the victim had at least a possessory interest in the house and furnishings.

                We hold that the evidence also circumstantially supports a finding that the damage
was caused without the victim’s consent. One component of the evidence that circumstantially
established that the defendant set the fire is that the defendant placed the victim in the utility room
and latched the door from the outside before setting the fire. This component also serves to establish
an absence of the victim’s consent. We are confident there is no reasonable basis for theorizing that
the victim consented to setting fire to a house in which she was trapped and doomed to die by
inhaling noxious gases.

               Accordingly, we conclude that the evidence sufficiently supports the jury’s finding
that the defendant committed felony murder based upon its finding that the victim’s death resulted
from the defendant’s perpetration of arson.




                                                 -11-
                                           II. False Testimony

                The defendant argues that the state sponsored false testimony from three witnesses,
Bobby Alcorn, James Cooper, and David Miller. Specifically, the defendant alleges that each of
these witnesses testified at the instant trial differently than they testified at his first trial and that the
differences in the witnesses’ testimonies were detrimental to him.

                 The state may not knowingly present false testimony and has an affirmative duty to
correct the false testimony of its witnesses. See Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct.
763, 766 (1972); State v. Spurlock, 874 S.W.2d 602, 617 (Tenn. Crim. App. 1993). The state’s
failure to correct false testimony of a witness violates due process of law as guaranteed by the United
States and Tennessee constitutions. Giglio, 405 U.S. at 153-54, 92 S. Ct. at 766; Spurlock, 874
S.W.2d at 618. In order to obtain a new trial, the accused must establish that the prosecution
knowingly presented false testimony that was material. State v. Cureton, 38 S.W.3d 64, 74-75
(Tenn. Crim. App. 2000). In determining the materiality of the testimony, the inquiry becomes
whether a reasonable likelihood exists that the false testimony could have affected the jury’s
judgment. See Giglio, 405 U.S. at 154, 92 S. Ct. at 766.

A. Bobby Alcorn

               The defendant asserts that by comparing the following colloquies from the
defendant’s first and second trials, this court should conclude that Bobby Alcorn testified falsely at
the defendant’s second trial.

               The following is an excerpt from Bobby Alcorn’s direct examination testimony at the
defendant’s first trial:

                Q:       Okay. What was the first thing you saw when you went out of
                         your house?

                A:       Fire was hovering around the door facing and the window
                         facing, I mean, just like this right here, shwissssssh.

                Q:       And what was Mr. Garrett doing?

                A:       Well, when I got there – I took off running across the road
                         and my Dad was to the sidewalk, and he picked up something
                         and busted out that window. And by the time my Dad got to
                         that one he’d take off to the next one. My Dad busted out that
                         window. I mean, he busted – [the defendant] busted out that
                         window and then my Dad went over there and was trying to
                         listen to see if he could hear anything, hear her hollering.



                                                    -12-
Q:     Let me back up just a minute. What’s the very first thing you
       saw Claude Garrett do when you came up on the scene?

A:     Well, he was at the window. I seen him pick up something
       and he busted out the window.

Q:     Was it a lawn chair?

A:     Some type of chair.

Q:     He was picking it up?

A:     Yeah.

....

Q:     Okay. You seemed to be implying before that he broke the
       window out without listening to see if anybody was going to
       respond, or anything. Was that what you were saying or not?

A:     No. ‘Cause see, when my dad – when he – when I come out
       of the house and I seen that fire and I went back up into my
       room and got dressed, run across the street and by then he got
       – as I was getting across the street he was picking up a chair
       or something, I’m pretty sure it was a chair.

....

Q:     Okay. Let me back up just one more time. You first looked
       out the window before you got dressed and you saw the house
       on fire? . . . Did you see Mr. Garrett at that time? Or just the
       house?

A.     I can’t remember.

Q      Okay.

A:     All I remember is that house on fire.

Q:     Okay. You told me that he was, when you got over there you
       said he was screaming and hollering and running around the
       house, breaking out windows, is that what you told me?



                                -13-
              A:      No, I said he was busting out windows. . . .

              The defendant also presents this portion of Bobby Alcorn’s cross-examination
testimony from the first trial for the court’s consideration:

              Q:      All right, well, did you see him standing out in the yard
                      watching it burn?

              A:      No.

              Q:      The whole time you saw him he was running around trying to
                      get in and put it out?

              A:      No, he wasn’t trying to get in. He wasn’t making no progress
                      to get in.

              Q:      He was just breaking out the windows?

              A:      He was busted [sic] out the windows.

The defendant argues that the following excerpt of Bobby Alcorn’s second trial testimony contains
false testimony:

              Q:      When you looked outside, when you first looked outside,
                      what did you see?

              A:      Just a fire really blazing out the front of the house. And I
                      seen [the defendant], he was kind of squatted down by a tree.

                      ....

              Q:      Now when you got outside the house, describe exactly again
                      what you saw as far as what was going on across the street[.]


              A:      The front door and the two front windows was just blazing, it
                      was rolling up, the fire was just rolling up the front. And
                      right there by where it says chest or whatever, kind of
                      diagonal of the house is where the tree was where I seen
                      squatted down on side D.

              Q:      So you’re indicating on the left corner of side A.



                                              -14-
                A:      Yeah.

                Q:      And so that’s the side where you saw what?

                A:      Where I seen [the defendant] squatted down.

                Q:      And can you demonstrate for the jury, if you can step out of
                        your witness box for a moment, and demonstrate how you
                        saw him by the tree?

                A:      (Whereupon witness complies.)

                Q:      Okay. Okay. Thank you. Did you eventually go to where
                        [the defendant] was standing or squatting?

                A:      He was standing by the time I got over there.

                Q:      And did you seen him do anything else at that point?

                A:      I seen my dad, when my dad got over there, when my dad got
                        about to the sidewalk and he got up and grabbed the chair, a
                        lounge chair I think it was, and busted out a window.

                 The defendant asserts that Bobby Alcorn’s first and second trial testimonies conflict
because Bobby Alcorn testified at the first trial that the defendant was breaking windows and yelling
for the victim when he first saw him but testified at the second trial that the defendant was “squatted
down” by a tree while his house was burning when he first saw the defendant. The defendant further
asserts that the state knew or should have known that it was soliciting false testimony from Bobby
Alcorn. The state counters that Bobby Alcorn’s testimonies are not contradictory and that the alleged
inconsistency is the result of the witness’s response to two different questions. Specifically, the state
asserts that at the defendant’s first trial, when asked, “What was the first thing you saw Claude
Garrett do when you came upon the scene?”, Mr. Alcorn responded that the defendant was “at the
window,” breaking it. At the second trial, Mr. Alcorn clarified that while he was still at his house
before he crossed the street to the defendant’s house, he looked across the street and saw the
defendant squatting by a tree. We agree with the state that the difference in the two testimonies is
primarily attributable to the defendant’s responses to different questions. We recognize, however,
that in the first trial, Bobby Alcorn testified that when he first viewed the defendant’s house from
inside his house, he reported seeing the house on fire but did not refer to seeing the defendant
squatting by a tree. We conclude that this discrepancy may represent more of a shift in emphasis
than an actual contradiction, and at any rate, there is no indication that the second trial testimony was
false or that the state presented testimony that it knew to be false.




                                                  -15-
B. James Cooper

                 Next, the defendant complains that James Cooper, who was a special agent with the
Bureau of Alcohol, Tobacco, and Firearms (ATF) and who investigated the instant crime,6 testified
falsely at his second trial that he interviewed a firefighter about whether the door to the utility room
where the victim was found was latched when the firefighters entered the house. The defendant
presents the following testimony in support of his argument:

[From the first trial:]

                  Q:       Did you talk with the fire department to determine how much
                           of the house they tore up, and how much was like that
                           already, and how much the fire might have done[?] Can you
                           just tell from looking at it what the fire department tore out?

                  A:       I did not talk to any firefighters that actually suppressed the
                           fire. Again, they weren’t there at the scene and I was just
                           there to determine the cause and origin of the fire. If they’re
                           normally there, yes, we would interview them, again, how
                           they attacked the fire and so forth.

                  Q:       So you didn’t ask anybody specifically, did you kick this or .

                  A:       No, sir.

                  Q:       . . . did that spread get pushed up there by the fire department
                           or was that where it was all the time?

                  A:       I did not interview the firefighters in reference to that.

[From the second trial:]

                  Q:       During the course of your coming to a conclusion, or opinion,
                           in this situation, did you attempt to interview any of the
                           firemen that [sic] were there?

                  A:       I did interview the firemen. I was particularly concerned
                           about the latch system on the door where Ms. Lance was
                           found behind.

                  Q:       Do you remember who you spoke to?


        6
            By the time of the defendant’s second trial, James Cooper had retired as an ATF special agent.

                                                        -16-
                A:      I talked to the captain. Basically – I made observations that
                        if the door was locked that door wouldn’t be standing there.
                        In other words, they would have taken that door down with a
                        fire ax. They already know [sic] that we have Ms. Lance back
                        there somewhere in the house. They are going in there to do
                        a rescue. So, they know there is a human being back there, so
                        they’ve got to get there. Time is crucial. But, if it was locked
                        the door would have been taken off.

                        I talked to Captain Jenkins. . . .

[Later in Mr. Cooper’s testimony, the following colloquy transpired:]

                Q:      So what is your understanding of the position of that when
                        Ms. Lance was found? Was it latched or unlatched?

                A:      Again, talking to Captain Jenkins, it was latched. He had to
                        use two hands to unlatch –

                 The defendant posits that these testimonies reveal that Mr. Cooper testified falsely
when he reported that he interviewed Captain Jenkins and that the state sponsored what it knew or
should have known was false testimony. The state counters that the two testimonies do not conflict
because in the first trial, Mr. Cooper testified that he did not interview any firefighters who
suppressed the fire and may have damaged the house, whereas in the second trial, Mr. Cooper
testified that he interviewed Captain Jenkins regarding whether the utility room door was latched.
Captain Jenkins’s role at the fire was to locate the victim, rather than extinguish the fire.
Accordingly, the state argues that the two testimonies are consistent. We conclude that when viewed
as a whole, the trial transcripts do not conclusively demonstrate that Mr. Cooper testified falsely at
the second trial. Accordingly, we conclude that the defendant has not demonstrated that the state
knowingly introduced false testimony by introducing Mr. Cooper’s testimony.

C. David Miller

                 Finally, the defendant argues that Detective David Miller testified falsely at the
second trial, as revealed by the inconsistencies between his first and second trial testimonies.
Specifically, the defendant notes that Detective Miller testified at the first trial that the kerosene-
soaked bedspread was “laying longways . . . in front of the utility room door,” whereas at the second
trial, Detective Miller testified that the bedspread draped from the edge of the refrigerator to the door
between the kitchen and the living room, forming the basis for his conclusion that the arsonist’s
intent was to spread the fire from the fire’s origin in the front room to the kitchen. The defendant
further asserts that in the first trial, Detective Miller testified that he collected evidence under Mr.
Cooper’s direction and that this statement was supported by Detective Mike Roland’s testimony that
Detective Miller was “doing the actual collection of evidence” at the crime scene. The defendant


                                                  -17-
asserts that this testimony from the first trial contradicts Mr. Cooper’s testimony at the second trial
that he was collecting evidence, not Detective Miller. The defendant presents the following
testimony of Mr. Cooper in support of his argument:

[From the second trial:]

               Q:      . . . you took a sample of kerosene from that jug and you put
                       it into a little vial?

               A:      A vial. Yes, sir.

               Q:      How did you do that?

               A:      Very carefully, without spilling on the bedspread.

               Q:      That vial is about that big, isn’t it?

               A:      Yes, sir. Again, I was able to put some in the vial.

               Q:      How?

               A:      I didn’t pick the jug up and pour it in. No, sir. Again, I don’t
                       know – I am trying to remember. Did I open the mouth and
                       stick it – I don’t remember.

               Q:      It is melted shut. You couldn’t get the lid open.

               A:      I am testifying, sir, I don’t remember. But I was very careful.
                       I do remember I took a sample out of that five gallon plastic
                       container[] containing kerosene and put it in a vial. I do
                       remember that, sir. And I was very conscious of not spilling
                       it on the bedspread.

               Q:      And how did you collect the bedspread sample? Did you use
                       a pair of scissors? Did you use a knife? How did you get
                       that?

               A:      I had a knife . . . .

                       ....




                                                 -18-
                Q:      . . . You have already been shown that sample of debris that
                        you took out of the living room, that you said you took from
                        the baseboard?

                A:      Yes, sir.

                Q:      And you took a piece of the baseboard?

                A:      Some of the baseboard. Yes, sir.

                Q:      And you took other debris – where did the rest of the debris
                        come from? That whole can is full of debris. Where did that
                        other stuff come from?

                A:      Sir, I took that – that was up against the baseboard. I did not
                        want to disturb the baseboard where the V-pattern, was, the
                        small V-pattern, then you have that wide V-pattern on the
                        baseboard.

                Q:      Uh-huh.

                A:      I went ahead and collected what was against the baseboard,
                        put it in the can, then, I took some of the baseboard myself
                        and put it in the can.

               The defendant asserts that this testimony demonstrates an inconsistency between the
first and second trial testimonies, specifically a discrepancy about who collected evidence at the
crime scene, Detective Miller or Mr. Cooper.

                In regard to the defendant’s assertion that Detective Miller testified falsely at the
second trial about the placement of the kerosene-soaked bedspread, the state responds that Detective
Miller testified at both trials that the bedspread was located in front of the refrigerator and that he
never contradicted himself on this point. Regarding the defendant’s assertion that Detective Miller
perjured himself by testifying at the second trial that Mr. Cooper collected the evidence at the crime
scene whereas he testified at the first trial that he collected the evidence himself, the state argues that
the two testimonies are consistent because Detective Miller clarified at the second trial that Mr.
Cooper actually collected the evidence and that he assisted Mr. Cooper in his collection procedures.
Furthermore, the state argues that any discrepancy in the testimonies can be attributed to the effect
that the eleven-year passage of time may have had on Detective Miller’s memory of the evidence
collection.

               We conclude that the defendant has not demonstrated that the state knowingly
presented false testimony by offering Mr. Cooper’s testimony at the second trial that he collected


                                                   -19-
evidence at the crime scene. The testimony presented by the defendant in support of his argument
does not definitively demonstrate the falsity of Mr. Cooper’s testimony, and we hold that any
discrepancy between the two testimonies is not indicative of perjury but rather may be attributed to
an inaccurate recollection eroded by the significant passage of time between the crime and the instant
trial. See, e.g., State v. Charles E. Robinson, No. M2004-01163-CCA-R3-CD, slip op. at 6 (Tenn.
Crim. App., Nashville, Aug. 17, 2005) (holding that the defendant failed to demonstrate that the state
knowingly presented false, as opposed to inaccurate, testimony and noting that “[t]he presentation
of inaccurate testimony by a state’s witness does not equate to a showing that the state knowingly
sponsored false testimony”).

                                III. Admission of Expert Testimony

                The defendant complains that the trial court erroneously allowed Mr. Cooper to offer
expert testimony regarding the “pour pattern” of accellerants that he deduced by examining the
defendant’s house. Specifically, the defendant argues that the trial court should have required Mr.
Cooper to demonstrate a scientifically reasonable standard for his conclusion that the fire was a
result of arson and, specifically, that a “pour pattern” existed on his front room floor prior to being
allowed to testify before the jury. The defendant asserts that the trial court did not conduct the
requisite review to determine the trustworthiness of Mr. Cooper’s method of discerning pour patterns
and that Mr. Cooper offered no scientific evidence in support of his conclusions that a pour pattern
existed. The state counters that the trial court properly admitted Mr. Cooper as an expert witness
based on his extensive training and experience in fire cause and origin investigation and that Mr.
Cooper offered sufficient evidence to support his conclusion of the existence of a pour pattern in the
defendant’s front room floor.

               All evidence, including expert testimony, must be relevant. Tenn. R. Evid. 402.
Relevant evidence is 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.” Tenn. R. Evid. 401. Relevant evidence may be excluded if its probative
value is “substantially outweighed” by the danger of unfair prejudice. Tenn. R. Evid. 403.

               The admissibility of expert testimony is governed by Rules 702 and 703 of the
Tennessee Rules of Evidence. McDaniel v. CSX Transp., Inc., 955 S.W.2d 257 (Tenn. 1997). Rule
702 addresses the need for expert testimony and the qualifications of the expert:

               If scientific, technical, or other specialized knowledge will
               substantially assist the trier of fact to understand the evidence or to
               determine a fact in issue, a witness qualified as an expert by
               knowledge, skill, experience, training, or education may testify in the
               form of an opinion or otherwise.

Tenn. R. Evid. 702. Its counterpart, Rule 703, focuses on the reliability of expert opinion testimony:



                                                 -20-
               The facts or data in the particular case upon which an expert bases an
               opinion or inference may be those perceived by or made known to the
               expert at or before the hearing. If of a type reasonably relied upon by
               experts in the particular field in forming opinions or inferences upon
               the subject, the facts or data need not be admissible in evidence. The
               court shall disallow testimony in the form of an opinion or inference
               if the underlying facts or data indicate lack of trustworthiness.

Tenn. R. Evid. 703.

               Generally, the admissibility of expert testimony is a matter entrusted to the sound
discretion of the trial court, and there can be no reversal on appeal absent clear abuse of that
discretion. State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993).

                As emphasized by the defendant, the trial court had a duty to review the basis for Mr.
Cooper’s opinion and determine its trustworthiness. The trial court must “determine whether the
reasoning or methodology underlying the scientific evidence is sufficiently valid and reliable, and
whether it can properly be applied to the facts at issue.” McDaniel, 955 S.W.2d at 258. The court
must be satisfied that the expert “opinions are based on relevant scientific methods, processes, and
data, and not upon an expert’s mere speculation.” Id. at 265.

                The record does not reveal that the trial court abused its discretion in accepting Mr.
Cooper as an expert and allowing him to offer his conclusions regarding the presence of a pour
pattern in the front room of the defendant’s house. The defendant argues that Mr. Cooper’s
testimony failed to establish a reliable scientific basis for his opinion that a pour pattern existed on
the floor of the front room in the defendant’s house. However, when viewing Mr. Cooper’s
testimony as a whole, we find that the court had a sufficient basis for allowing Mr. Cooper’s
testimony and accordingly did not abuse its discretion by admitting it. Mr. Cooper testified that he
had been extensively trained in fire investigation, had investigated between 150 and 200 fires, and
had instructed others in fire investigation. Mr. Cooper based his conclusion on his observation that
the front room had suffered fire damage, whereas the other rooms in the house had only suffered
smoke and heat damage. Moreover, Mr. Cooper determined the existence of a pour pattern in the
front room based upon his experience of examining numerous fire scenes. He opined that radiant
heat damage is often mistaken for a pour pattern by less experienced fire investigators but that his
extensive experience allowed him to make that distinction and definitively identify the existence of
a pour pattern in the defendant’s front room. At trial, Mr. Cooper elaborated that he examined the
baseboards in the defendant’s front room because an accellerant will usually run under a baseboard.
Under one baseboard he discovered a “V pattern,” which is caused by an accellerated fire. Mr.
Cooper testified that these individual conclusions formed the basis for his opinion that the
defendant’s house fire had been deliberately set.

              As noted earlier in this opinion, defense counsel subjected Mr. Cooper to a rigorous
cross-examination, in which he elicited, inter alia, that Mr. Cooper did not interview many of the


                                                 -21-
witnesses personally despite his assertion that witness observations played a crucial role in his
analysis of a fire scene, that Mr. Cooper did not observe the defendant’s house before the booster-
hose cleaning, and that he did not see the front furniture in its pre-fire position. During cross-
examination, Mr. Cooper conceded that a pour pattern could be mimicked by a polyester meltdown,
although Mr. Cooper insisted that he could distinguish between the two. Moreover, the defendant
presented the testimony of his own expert, Stewart Bayne, who testified that the fire was accidental,
unaided by accellerants.

                 Thus, we conclude that there was a sufficient indicia of reliability to support the trial
court’s decision to allow Mr. Cooper’s expert testimony and that defense counsel’s artful cross-
examination of Mr. Cooper coupled with the defendant’s presentation of a competing version of the
fire’s cause through the testimony of his own expert witness gave the jury ample opportunity to reject
Mr. Cooper’s testimony.

                                               IV. Jury Instructions

              The next issue that the defendant raises on appeal presents a compendium of
complaints about the jury instructions that were and were not given at his trial. Before addressing
these complaints, we begin with a brief overview of this case.

                 The offense for which the defendant stands convicted occurred in 1992. At that time,
first degree felony murder was defined as a “reckless killing of another committed in the perpetration
of, or attempt to perpetrate” an enumerated felony. Tenn. Code Ann. § 39-13-202(a)(2) (1991). The
defendant first stood trial in 1993, at which time the test for determining whether an offense is
necessarily included in another offense was controlled by Howard v. State, 578 S.W.2d 83 (Tenn.
1979).

               Subsequently, the defendant’s conviction was vacated in 2001 by this court on appeal
from the denial of post-conviction relief. See Claude Francis Garrett v. State, No. M1999-00786-
CCA-R3-PC (Tenn. Crim. App., Nashville, Mar. 22, 2001). The defendant was then retried in 2003,
at which time the test for determining whether an offense is necessarily included in another offense
was controlled by State v. Ely, 48 S.W.3d 710 (Tenn. 2001), and State v. Burns, 6 S.W.3d 453 (Tenn.
1999).7

        7
            Pursuant to Burns, an offense is lesser-included if:

                  (a) all of its statutory elements are included within the statutory elements of the
                  offense charged; or

                  (b) it fails to meet the definition in part (a) only in the respect that it contains a
                  statutory element or elements establishing

                  (1) a different mental state indicating a lesser kind of culpability; and/or

                                                                                                           (continued...)

                                                          -22-
               The trial court, at the defendant’s second trial, instructed the jury on first degree
“reckless” felony murder and included instructions on second degree murder and criminally
negligent homicide as lesser included offenses.

A. Instruction on Second Degree Murder

               The defendant complains that it was prejudicial error for the trial court to charge the
jury on second degree murder because second degree murder was not a lesser included offense of
felony murder, as it existed in 1992 at the time of the homicide in this case. The state agrees that the
charge should not have been given but insists that the error was harmless.

               Prior to the filing of Burns in 1999, the law was settled that second degree murder,
a “knowing” killing, was not a lesser included offense of “reckless” felony murder. As the court
explained in State v. Gilliam, 901 S.W.2d 385 (Tenn. Crim. App. 1995),

                   “Reckless” is a lesser included mental state of “knowing”. See Tenn.
                   Code Ann. § 39-11-301(a)(2) (1991). When acting recklessly
                   establishes an element, that element is also established if the
                   defendant acted knowingly. Id. Conversely, when acting knowingly
                   establishes an element, that element is not established if the defendant
                   acted only recklessly. See Id. Therefore, in order to find a defendant
                   guilty of second-degree murder, an element not contained in
                   first-degree felony murder (the mental element of “knowing”) must
                   be established. It follows that, under Howard, second-degree murder
                   is not a lesser included offense of first-degree felony murder. The
                   only lesser included offenses of first-degree felony murder are
                   reckless homicide, Tenn. Code Ann. § 39-13-215 [ ], and criminally
                   negligent homicide, Tenn. Code Ann. § 39-13-212 (1991).




        7
            (...continued)
                     (2) a less serious harm or risk of harm to the same person, property or public
                     interest; or

                   (c) it consists of

                   (1) facilitation of the offense charged or of an offense that otherwise meets the
                   definition of lesser-included offense in part (a) or (b); or

                   (2) solicitation to commit the offense charged or an offense that otherwise meets the
                   definition of lesser-included offense in part (a) or (b).

6 S.W .3d at 466-67.



                                                          -23-
901 S.W.2d at 390-91 (footnotes omitted). The same result has been reached when analyzed
according to Burns. See State v. Ben Mills, No. W1999-01175-CCA-R3-CD (Tenn. Crim. App.,
Jackson, May 3, 2002) (applying Burns to a “pipeline” case and concluding “second degree murder,
which required a showing of the ‘knowing’ mental state, would not have been a lesser included
offense of felony murder as it existed in 1995”). A contrary result, however, appears most recently
in William Glenn Wiley v. State, No. M2003-00661-CCA R3-PC (Tenn. Crim. App., Nashville, Sept.
23, 2004), perm. app. granted (Tenn. Feb. 28, 2005). The court in that case applied Burns
retroactively in a post-conviction case when the defendant’s notice of appeal from his original
judgment was filed the same day that Burns was decided, and the court concluded:

               Based upon Burns, we conclude second degree murder would be a
               lesser-included offense of “reckless” felony murder as that offense
               was defined prior to July 1, 1995, just as it is under felony murder as
               it is defined for offenses committed on or after July 1, 1995. See Ely,
               48 S.W.3d at 721-22. In Ely, second degree murder was found to be
               a lesser-included offense of felony murder under the current statute
               based upon part (b) of Burns. Id. The additional mens rea of
               recklessness in the prior statute would not eliminate second degree
               murder as a lesser-included offense of felony murder under the
               rationale of Ely.

William Glenn Wiley, slip op. at 10. Notably, then, in William Glenn Wiley, this court applied Burns
to a pre-July 1, 1995 homicide as a predicate for holding that the “reckless” form of first degree
felony murder included the lesser offense of second degree murder. Applying this rule, the trial court
in the present case did not err.

                In the event, however, the law develops that second degree murder is not a
lesser-included offense of “reckless” felony murder as that offense was defined prior to July 1, 1995,
we are confident that the instructional inclusion of second degree murder in this case was harmless
error. The jury did not convict the defendant of second degree murder, and the jury rejected both that
offense and the charged lesser included offense of criminally negligent homicide.

               Secondarily, the defendant is aggrieved of the charge given for second degree murder
because the instruction misstated the correct mens rea. The trial court instructed the jury that to find
the defendant guilty of second degree murder the state must have proven that the defendant
unlawfully killed the alleged victim and “that the killing was done recklessly.” We agree that the
trial court misstated the law and substituted the proper mental element of “knowingly” with
“recklessly.” See Tenn. Code Ann. § 39-13-210(a)(1) (1991). Even so, the error, is harmless. The
jury did not convict the defendant of second degree murder, and we are at a loss to glean how such
error would have worked to the defendant’s detriment.




                                                 -24-
B. Reckless Homicide

                The defendant complains that the trial court failed to give an instruction for reckless
homicide as a lesser included offense of felony murder. This complaint need not detain us long.
Reckless homicide did not exist as a statutory offense in 1992, when the defendant performed the
acts leading to his indictment. Reckless homicide, codified at Tennessee Code Annotated section
39-13-215, was enacted in 1993. See 1993 Tenn. Pub. Acts, ch. 306 § 2, at 482-83. Therefore, the
trial court committed no error by failing to charge reckless homicide as a lesser included offense.

                 Regarding reckless homicide, we note that both the defendant and the state mistakenly
relied upon the following passage in Gilliam: “The only lesser included offenses of first-degree
felony murder are reckless homicide, Tenn. Code Ann. § 39-13-215 (1991), and criminally negligent
homicide, Tenn. Code Ann. § 39-13-212 (1991).” Gilliam, 901 S.W.2d at 391. That statement is
incorrect inasmuch as 1991 Replacement Volume 7 did not contain code section 39-13-215; rather,
it first appeared in the 1994 pocket-part Supplement to 1991 Replacement Volume 7. However, in
footnote 6, the Gilliam court did correctly observe that the defendant “cannot be convicted of
reckless homicide because the statute became effective on May 12, 1993, after the commission of
the instant offense.” Id. at 391 n.6.

C. Definitions of Intentionally, Knowingly, and Recklessly

               The defendant next assails the trial court’s instructional definitions of intentionally,
knowingly, and recklessly. To place his arguments in perspective, we begin by reviewing the jury
charge given in this case. Before providing the jury with instructions on the charged offense of
felony murder, the trial court gave the following preliminary definitions of the terms “recklessly,”
“knowingly,” and “criminally negligent”:

                       Definitions of terms used in this charge.

                       Recklessly means that a person acts recklessly when the
               person is aware of but consciously disregards a substantial and
               unjustifiable risk that the alleged victim will be killed. The risk must
               be of such a nature and degree that its disregard constitutes a gross
               deviation from the standard of care that an ordinary person would
               exercise under all the circumstances as viewed from the accused
               person’s standpoint.

                      The requirement for recklessly is also established if it [is]
               shown that the Defendant acted intentionally or knowingly.

                       Intentionally means that a person acts intentionally when it is
               the person’s conscious objective or desire to cause death of the
               alleged victim.


                                                 -25-
                  Knowingly means that a person acts with an awareness that
          his conduct is reasonably certain to cause the death of the alleged
          victim.

                 The requirement of knowingly is also established if it is
          shown that the Defendant acted intentionally.

                  Criminally negligent means that a person acts with criminal
          negligence when the person ought to be aware of a substantial and
          unjustifiable risk that the alleged victim will be killed. The risk must
          be of such a nature and degree that the failure to perceive it
          constitutes a gross deviation from the standard of care that an
          ordinary person would exercise under all the circumstances as viewed
          from the accused person’s standpoint.

                  The requirement for criminal negligence is also established if
          it is shown that the Defendant acted intentionally, knowingly or
          recklessly.

          The trial court then proceeded to instruct the jury on the charged offense of felony
murder.

                  I shall now proceed to explain to you what in law it takes to
          constitute the offense of first degree murder as charged in the
          indictment in this case.

                First degree murder. Any person who commits first degree
          murder is guilty of a crime.

                 For you to find the Defendant guilty of this offense, the State
          must have proven beyond a reasonable doubt the existence of the
          following essential elements:

                 One, that the Defendant unlawfully killed the alleged victim;
          and

                  Two, that the killing was committed in the perpetration of or
          the attempt to perpetrate the alleged arson. That is, that the killing
          was closely connected to the alleged arson and was not a separate,
          distinct and independent event; and




                                           -26-
                       Three, that the Defendant intended to commit the alleged
               arson; and

                       Four, that the Defendant acted intentionally. Excuse me,
               acted recklessly.

              The trial court at that point restated the definitions of recklessly, intentionally, and
knowingly given earlier, and it concluded with the following instruction regarding arson:

                      To establish that the Defendant committed the underlying
               offense of arson, the State must have proven beyond a reasonable
               doubt the existence of the following essential elements:

                     One, that the Defendant, by means of fire or explosion,
               damage[d any structure], and

                     Two, that the Defendant did so with the intent to destroy or
               damage the structure for any unlawful purpose, and

                       Three, that the Defendant acted knowingly.

                       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.

               The defendant acknowledges that the trial court’s instructions comport with State v.
Page, 81 S.W.3d 781, 790-92 (Tenn. Crim. App. 2002) (concluding that first degree premeditated
murder, a knowing second degree murder, voluntary manslaughter, reckless homicide and criminally
negligent homicide are “result-of-conduct offenses”; Appendix of a proper jury charge included).
He, nevertheless, insists that the Page instructions apply only to offenses committed on or after July
1, 1995; therefore, he maintains, the instructions are erroneous. We disagree.

                 The statutory definitions of relevant culpable mental states appear in Code section
39-11-302. These definitions have not changed since their enactment as part of the comprehensive
1989 revision of Tennessee’s Criminal Code. See Tenn. Code Ann. § 39-11-302(a) - (d) (1991 &
2003). The trial court in this case obviously patterned its instructions relative to culpable mental
states after the example set forth in Page, for which we find no error. Admittedly the suggested jury
instructions set forth in Page are stated to apply to “First Degree Murder (Premeditated Killing) (For
Offenses Committed on or after July 1, 1995).” 81 S.W.3d at 790. The defendant, however, was
not charged with premeditated first degree murder; his indicted offense was first degree felony
murder, and even though both premeditated first degree murder and felony murder were revised
effective July 1, 1995, Page focused on the proper mens rea and its applicable conduct elements for



                                                -27-
criminal offenses. The statutory definitions of relevant culpable mental states did not change in
1995.

               The defendant also maintains, without any supporting authority, that the trial court
should not have instructed the jury that the requirement of “knowingly” is established if shown that
the defendant acted “intentionally” and that the requirement of “recklessly” is established if shown
that the defendant acted “intentionally” or “knowingly.” Those instructions, however, were
approved in Page and find direct support in Code section 39-11-301(a)(2), which provides in
relevant part:

                       (2) When the law provides that . . . recklessness suffices to
               establish an element, that element is also established if a person acts
               intentionally or knowingly. When acting knowingly suffices to
               establish to an element, that element is also established if a person
               acts intentionally.

Tenn. Code Ann. § 39-11-301(a)(2) (1991 & 2003). The defendant’s argument must fail.

               In a related argument, the defendant furthermore insists that via the instruction given
for “intentionally,” the trial court “constructively amended” the indictment to charge him with
premeditated murder when, in fact, he was charged with a reckless homicide perpetrated during the
commission of arson. This argument is unavailing. Evidently the defendant is under the erroneous
impression that only a reckless homicide will suffice to prove felony murder. However, a conviction
may be obtained even though the proof shows that the killing was intended. See State v. Frank
Whitmore, No. 03C01-9404-CR-00141, slip op. at 13 (Tenn. Crim. App., Knoxville, June 19, 1997).

                Yet another complaint that the defendant registers is that the trial court provided the
jury with an erroneous and misleading instruction and definition of the mens rea elements of first
degree “reckless” felony murder and the underlying felony of arson. In terms of the mens rea
element of recklessly, the defendant again claims that the instructional language taken from the Page
decision is inadequate, and we again reject that contention.

                  Although the defendant’s argument regarding the mens rea element of arson is not
entirely clear, we glean that it focuses on the conduct element tied to the mental state required to
prove arson. As relevant to this case, an individual commits the offense of arson “who knowingly
damages any structure by means of a fire or explosion . . . [w]ith intent to destroy or damage any
structure . . . for any unlawful purpose.” Tenn. Code Ann. § 39-14-301(a)(2) (1991 & 2003). The
offense requires an act to be done “knowingly,” which can refer to all three conduct elements: (1)
nature of conduct, (2) circumstances surrounding conduct, and (3) result of conduct. See id. § 39-11-
302(b) (“‘Knowing’ refers to a person who acts knowingly with respect to the conduct or to
circumstances surrounding the conduct when the person is aware of the nature of the conduct or that
the circumstances exist. A person acts knowingly with respect to a result of the person’s conduct



                                                 -28-
when the person is aware that the conduct is reasonably certain to cause the result.”); Page, 81
S.W.3d at 787.

               In State v. Gene Shelton Rucker, Jr., No. E2002-02101-CCA-R3-CD (Tenn. Crim.
App., Knoxville, Dec. 9, 2004), perm. app. denied (Tenn. 2005), this court considered whether
aggravated arson is a result-of-conduct offense. Relying on the supreme court’s description of result-
of-conduct offenses in State v. Ducker, 27 S.W.3d 889, 895-96 (Tenn. 2000), we reasoned,

               Under our arson statutes, a person commits aggravated arson “who
               commits arson” under additional, specified circumstances necessary
               to elevate the arson into aggravated arson. Tenn. Code Ann. §
               39-14-302(a)(1), (2) (2003). Simple arson is defined in terms of a
               person “who knowingly damages any structure by means of a fire or
               explosion.”      Id. § 39-14-301(a) (2003) (emphasis added).
               Grammatically speaking, the word “knowingly” modifies “damages,”
               which refers to the result of the person’s conduct. Nonetheless, the
               arson statute does not focus purely on the result – that is, damage to
               a structure. Instead, the nature of the conduct – creating a fire or
               explosion – that causes the damage to the structure is consequential
               and central to the offense. Measured according to the parameters set
               forth in Ducker, arson and aggravated arson, therefore, are not
               result-of-conduct offenses; they do not require that a defendant act
               with an awareness that setting a fire or creating an explosion is
               reasonably certain to cause damage to a structure.

Gene Shelton Rucker, Jr., slip op. at 12.

                The trial court in the instant case did not define the mens rea element of arson in
terms of nature of the defendant’s conduct. The court’s charge in this case defined “knowingly” only
with reference to the result of the defendant’s conduct; that is, “act[ing] with an awareness that his
conduct is reasonably certain to cause the death of the alleged victim.” Consequently, in our opinion,
the jury was incorrectly instructed on the “knowing” element of arson. The question then becomes
whether the instructional error was harmless.

                “The misstatement of an element in jury instructions is subject to constitutional
harmless error analysis.” State v. Faulkner, 154 S.W.3d 48, 60 (Tenn. 2005) (citing Pope v. Illinois,
481 U.S. 497, 501-03, 107 S. Ct. 1918 (1987)). Likewise, “[t]he failure to instruct the jury on a
material element of an offense is a constitutional error subject to harmless error analysis.” Id.
Regardless whether the error in this case is classified as a misstatement or an omission of an element,
the error qualifies as constitutional in nature. That said, in our view the instructional error was
harmless beyond a reasonable doubt.




                                                 -29-
                 By defining the mens rea element of arson solely in terms of result-of-conduct, the
trial court did not lessen the state’s burden of proof. On the contrary, the instruction increased the
state’s burden by requiring proof beyond a reasonable doubt that the defendant was aware that his
conduct was reasonably certain to cause death. See id. at 59 (inclusion of “superfluous language in
the ‘knowingly’ definition did not lessen the burden of proof because it did not relieve the State of
proving beyond a reasonable doubt that the defendant acted knowingly”). Furthermore, the essence
of the defense theory was that the fire ignited accidently and was not fueled by a chemical
accellerator. Thus, causation and not the defendant’s mens rea was the central issue. See Page, 81
S.W.3d at 789 (suggesting an erroneous mens rea instruction would likely be harmless when identity,
not mens rea, was the disputed issue at trial).

                 The defendant’s final mens rea instructional error is that the jury was permitted to
presume that the death of the alleged victim supplied the intentional and knowing elements of the
underlying arson. However, we are satisfied this did not occur. The trial court was careful to
instruct the jury 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.

D. Unlawful Purpose

                According to the defendant, it was prejudicial error for the trial court to fail to define
the “unlawful purpose” element of the underlying offense of arson. We are not aware of any such
instructional requirement, and the defendant certainly cites no authority for this argument; nor does
he indicate how the term should have been defined other than suggesting that an unlawful purpose
“denotes an intended result of a violation of further [sic] statute or ordinance.” Inasmuch as the
state’s theory was that the defendant set fire to the residence to kill the victim who was locked or
trapped in the laundry room, we believe it self-evident that the defendant’s purpose was “unlawful.”

E. Expert Witness Instruction

                The defendant assails the trial court’s expert-witness instruction given in this case.
The trial court charged the jury in part,

                        The rules of evidence provide that if scientific, technical or
                other specialized knowledge might assist the jury in understanding
                the evidence or in determining a fact in issue, a witness qualified as
                an expert by reason of special knowledge, skill or experience may
                testify and state his opinions concerning such matters and give
                reasons for his testimony.

(Emphasis added).

                Because Tennessee Rule of Evidence 702 speaks of an expert testifying if scientific,
technical, or other specialized knowledge will “substantially assist” the trier of fact, Tenn. R. Evid.


                                                  -30-
702, the defendant proposes that the trial court erroneously instructed and invited the jury to consider
Agent Cooper’s testimony by a lower standard of scrutiny – “might assist.”

                 Our review of the record shows that the defendant filed an original motion for new
trial and five subsequent amendments that added additional grounds seeking a new trial. The trial
court’s expert-witness instruction is not among the cited grounds. This issue accordingly has been
waived. See Tenn. R. App. P. 3(e) (“in all cases tried by a jury, no issue presented for review shall
be predicated upon error in the admission or exclusion of evidence, jury instructions granted or
refused, misconduct of jurors, parties, or counsel, or other action committed or occurring during the
trial of the case, or other ground upon which a new trial is sought, unless the same was specifically
stated in a motion for new trial”); 36(a) (“Nothing 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.”). Even if not waived, the issue affords
the defendant no relief. Evidence Rule 702 addresses the admissibility of expert testimony and the
trial court’s role in considering whether such testimony may be presented to the jury. The rule does
not instruct the jury how to consider the expert testimony, and the trial court was careful in this case
to advise the jury:

                      Merely because an expert witness has expressed an opinion
               does not mean, however, that you are bound to accept this opinion.
               The same as with any other witness, it is up to you to decide whether
               you believe this testimony and choose to rely upon it.

                         V. Confrontation and Compulsory Process Issues

A. Cross-examination of David Miller

               The defendant claims that the trial court denied him the constitutional right to
confront adversary witnesses when David Miller “refused to answer questions propounded to him
by the defense.” The defendant refers to Mr. Miller’s responses to three questions asked during
cross-examination. To a question about how Agent Cooper collected a piece of the bedspread, Mr.
Miller responded, “I would prefer that to be Mr. Cooper’s answer, sir.” When asked about Agent
Cooper’s collection of liquid from a jug of kerosene, Mr. Miller responded, “You’ll have to ask Mr.
Cooper, sir.” Finally, Mr. Miller said, “You will have to ask Special Agent Cooper” when asked
about Agent Cooper’s collection of evidence from under a baseboard. The defendant ascribes to the
witness and the prosecution sinister motives in responding in the above fashion, based upon the
defendant’s claim that, in the first trial, Mr. Miller testified that he collected the three samples of
evidence.

               The state counters that the defendant has waived appellate review of the issue because
the defendant failed to object to the witness’ claimed evasion and failed to seek contemporaneous
redress from the trial court. We agree.



                                                 -31-
               One can infer from Mr. Miller’s responses cited by the defendant that the witness’
knowledge on the subjects presented was inadequate for informative answers. In our view, the
defendant’s belief that the responses were in conflict with prior testimony was subject to exploration
via cross-examination. See Tenn. R. Evid. 613. His claim that the responses were evasive likewise
could have been explored by cross-examination, but if the defendant wishes to claim on appeal that
the witness’ evasion equated to a denial of his right of confrontation, we think more was required
than to merely allow the witness to evade. See Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct.
292, 294 (1985) (“[T]he Confrontation Clause guarantees an opportunity for effective cross-
examination, [but] not cross-examination that is effective in whatever way . . . .”) (emphasis in
original).

                 The defendant should have established that the claimed evasion was tantamount to
a denial of the right of confrontation by objecting and seeking the court’s aid in compelling the
witness to respond. See Tenn. R. Crim. P. 17(a) (providing that subpoena power embraces power
to command witness to “give testimony”); id. 17(g) (“Refusal by any person without adequate excuse
to obey a subpoena . . . may be deemed a contempt of the court . . . .”); Tenn. R. Evid. 611
(empowers trial court to “exercise appropriate control over the presentation of evidence and conduct
of the trial”). In the absence of a challenge to the witness’ responses, we cannot discern whether the
responses were merely grounded in lack of knowledge or were evasive to the point of denying the
defendant the opportunity for effective cross-examination. More importantly, the failure to challenge
the responses by objection or by a request that the trial court employ its contempt power to compel
a response precluded the opportunity of the trial court as an observer of the witness’ demeanor to
pass on the issue. See Tenn. R. App. P. 36(a) (“[R]elief may not be granted [on appeal] in
contravention of the province of the trier of fact.”). Accordingly, in the case presented to us, we hold
that the defendant waived the issue of whether Mr. Miller’s evasiveness denied the defendant his
right of confrontation.

                 VI. Witness Expense for Testimony at Hearing on Motion for New Trial

                In a related issue, the defendant requested the trial court to approve an expense
disbursement to cover the cost of David Miller traveling to Davidson County from Florida to testify
in the hearing on the motion new trial. The defendant now claims in a supplemental brief that the
trial court’s denial of this request was error.8 In his brief, the defendant argues that David Miller’s
testimony in the motion for new trial hearing was necessary and material because, in the hearing, Mr.
Miller “would have been compelled to answer the question under oath as to how [the] evidence
[taken from the floor near the baseboard] was collected.” The defendant asserted in his brief that
Mr. Miller testified in the first trial that he collected this material sample, that Cooper testified in the
second trial that Cooper had collected the sample, and that in the hearing on the motion for new trial,
Mr. Miller “should have been compelled to answer questions under cross-examination as to who was
telling the truth and who was committing perjury.” The defendant argues that the denial of the
witness-expense funding was a denial of due process of law.


        8
            This issue was raised in the trial court via the defendant’s fifth amendment to his motion for new trial.

                                                           -32-
                The trial court, however, denied the motion on the grounds that (1) Mr. Miller’s
presence in the motion for new trial hearing was unnecessary, (2) the defense did not seek to compel
Mr. Miller’s responses during his trial testimony, and (3) the trial court had no statutory authority
to approve funding for the attendance of an out-of-state witness at a hearing on a motion for new
trial. Predictably, the state posits that the trial court was correct as to any and all of its bases for
denying the motion.

               First, we dispose of the constitutional basis for citing as error the denial of the funding
motion. The defendant cited to this court no authority for the proposition that the denial of the
motion deprived him of due process of law. Tennessee Court of Criminal Appeals Rule 10(b)
mandates that, in this situation, the issue “will be treated as waived in this court.” Tenn. Ct. Crim.
App. R. 10(b).

                 Second, the defendant has offered no argument based upon statute, rule, or caselaw
that the trial court erred in denying the motion. Therefore, his claim is waived pursuant to Rule
10(b), as well. At any rate, Tennessee Rule of Criminal Procedure 17(b) provides:

                The court shall order at any time that a subpoena be issued for service
                on a named witness upon an ex parte application of a defendant upon
                a satisfactory showing that the defendant is financially unable to pay
                the fees of the witness and that the presence of the witness is
                necessary to an adequate defense.

Tenn. R. Crim. P. 17(b) (emphases added). The trial court recited as one of its bases for denying the
motion that the defendant had not shown that Mr. Miller’s testimony was necessary. As an aside,
we agree with the trial court that the significance of Mr. Miller’s proposed testimony is counter-
indicated by the defendant’s failure to elicit further testimony from Mr. Miller when it had him on
the witness stand at trial. The bottom line is, however, that the defendant has made no showing that
the trial court abused its discretion in disallowing funds to facilitate Mr. Miller’s testimony in the
hearing See Tenn. R. Crim. P. 33(c) (stating that the trial court “may in its discretion allow
testimony in open court on issues raised in the motion for new trial”) (emphasis added).

                                         VII. Brady Violation

              The defendant argues that the state withheld an exculpatory statement in which
Captain Jenkins informed Mr. Cooper that the utility room door in the defendant’s home was latched,
not locked, and that the withholding of this information is reversible error pursuant to Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). The state counters that the statement is neither
exculpatory nor material and therefore not a Brady violation.

                In Brady, the United States Supreme Court held that the prosecution has a
constitutional duty to furnish an accused with exculpatory evidence pertaining to either the accused’s
guilt or innocence and the punishment that may be imposed. Failure to reveal exculpatory evidence


                                                  -33-
violates due process when the evidence is material either to guilt or punishment, irrespective of good
faith or bad faith of the prosecution. Id. at 87, 83 S. Ct. at 1196-97. In Strickler v. Greene, 527 U.S.
263, 119 S. Ct. 1936 (1999), the Court enumerated three components of a Brady violation: “The
evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently;
and prejudice must have ensued.” Id. at 281-82, 119 S. Ct. at 1948.

                In United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375 (1985), the Supreme Court
explained that constitutional error results in the withholding of “material” evidence, and materiality
exists when “there is a reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.” Id. at 682, 105 S. Ct. at 3383.

                The “materiality” of suppressed, favorable evidence was discussed at length in Kyles
v. Whitley, 514 U.S. 419, 115 S. Ct. 1555 (1995), and Johnson v. State, 38 S.W.3d 52 (Tenn. 2001).
Four aspects are highlighted in those cases. First, materiality does not demand a showing by a
preponderance that the suppressed evidence would have resulted in the defendant’s acquittal. Kyles,
514 U.S. at 434, 115 S. Ct. at 1566; Johnson, 38 S.W.3d at 58. Second, materiality is not an
evidence-sufficiency test. Kyles, 514 U.S. at 434, 115 S. Ct. at 1566; Johnson, 38 S.W.3d at 58.
Third, once constitutional error has been found, there is no need for further harmless error review.
Kyles, 514 U.S. at 435, 115 S. Ct. at 1566; Johnson, 38 S.W.3d at 63. Last, the “suppressed
evidence [is to be] considered collectively, not item by item” to gauge materiality. Kyles, 514 U.S.
at 436, 115 S. Ct. at 1567. Plainly stated, establishing materiality requires a “showing that the
favorable evidence could reasonably be taken to put the whole case in such a different light as to
undermine confidence in the verdict.” Id. at 435, 115 S. Ct. at 1566; see Johnson, 38 S.W.3d at 58.

                The defendant contends that the state should have informed him that Mr. Cooper
would testify that after investigating the crime scene, Captain Jenkins informed him that the utility
room door was latched, not locked. While testifying, Mr. Cooper explained that Captain Jenkins
concluded that if the utility room door had been locked during the fire, the firefighters searching for
the victim would have used a fire axe to break the door down, which they did not do. Captain
Jenkins reported that when he inspected the door, it was latched, requiring him to use both hands to
unlatch it. As noted earlier in this opinion, this court reversed the defendant’s first degree murder
conviction after his first trial because the state had withheld Detective Miller’s report indicating that
the utility room door was not locked. See Claude Francis Garrett v. State, No. M1999-00786-CCA-
R3-PC, slip op. at 15-20 (Tenn. Crim. App., Nashville, Mar. 22, 2001). This court reasoned that the
information was exculpatory and material because it negated the state’s theory that the defendant had
purposefully locked the victim in the utility room and then set the house on fire. See id. Conversely,
the information relayed to Mr. Cooper does not negate a theory that the defendant deliberately
confined the victim in the utility room; rather, it clarifies how the victim was confined. Accordingly,
we do not find that the state’s failure to share this information with the defendant is a violation of
the defendant’s due process rights pursuant to Brady.




                                                  -34-
                                       VIII. State Misconduct

                 The defendant argues that the state engaged in prosecutorial misconduct when it
elicited false testimony from Bobby Alcorn and James Cooper, that this false testimony prejudiced
him, and that accordingly he is entitled to a new trial. However, earlier in this opinion we addressed
the defendant’s claim that these witnesses testified falsely during his second trial, and we determined
that the defendant had not demonstrated that any claimed contradictions in these testimonies are
attributable to perjury. Accordingly, we similarly conclude that the defendant has not demonstrated
that the presentation of these testimonies was prosecutorial misconduct.

                 In related issues alleging state misconduct, the defendant advances two issues for the
first time on appeal, specifically that he was denied his presumption of innocense by references to
his first trial during his second trial, including one reference by the prosecutor during closing
arguments, and that the state advanced inconsistent facts and theories during the two trials of this
case, thereby violating his due process rights. However, an appellate issue may not be predicated
upon an alleged error at trial unless that issue was also presented by the defendant in his or her
motion for new trial. See Tenn. R. App. P. 3(e). Accordingly, the defendant has waived these issues
for consideration on appeal, and we are unpersuaded – and the defendant does not argue – that either
issue constitutes plain error necessitating our review.

                                        IX. Conclusion
              We have discerned no reversible error in the trial court’s proceedings and,
accordingly, we affirm the court’s judgment.



                                                        ___________________________________
                                                        JAMES CURWOOD WITT, JR., JUDGE




                                                 -35-
