         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE             FILED
                           FEBRUARY SESS ION, 1998            April 9, 1999

                                                       Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk
STATE OF TENNESSEE,  )                 C.C.A. NO. 03C01-9704-CR-00137
                     )
    Appellee,        )
                     )
                     )                 CUMBERLAND COUN TY
VS.                  )
                     )                 HON. LEON C. BURNS, JR.
JACK THOMAS NORRIS,  )                 JUDGE
& ERNEST RAY MEADOWS )
    Appe llant.      )                 (Direct Appe al - Attempted First
                     )                 Degree M urder)




FOR THE APPELLANT:                     FOR THE APPELLEE:

LARRY M. WARNER                        JOHN KNOX WALKUP
Attorn ey for Ja ck Th oma s Nor ris   Attorney General and Reporter
P. O. Box 601
Crossville, TN 38557                   MARVIN E. CLEMENTS, JR.
                                       Assistant Attorney General
MARGARET JANE POWERS                   425 Fifth Avenu e North
Attorney for Ernest Ray Meadows        Nashville, TN 37243-0493
79 North Main Street
Crossville, TN 38555-4576              BILL GIBSON
                                       District Attorney General

                                       ANTHONY J. CRAIGHEAD
                                       Assistant District Attorney
                                       145 South Jefferson Street
                                       Cookeville, TN 38501

                                       DAVID PATTERSON
                                       Assistant District Attorney
                                       206 East Second Street
                                       Crossville, TN 38555



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                     OPINION


       The appellants, Jack Thomas Norris and Earnest Ray Meadows, were

convicted by a Cumberland County jury of attempted first deg ree m urder . Norris

received a sente nce o f 24 yea rs for his conviction, and Meadows was sentenced

to 22 years. On appeal, Norris and Meadows raise several joint issues for our

consideration:

       1) whether the evidence presented by th e state wa s sufficient to
       suppo rt the jury’s verd ict;

       2) whethe r the trial court erred in denying a motion for a
       continuance;

       3) whether the prosecution improperly used the “missing witness”
       argument in its closing; and

       4) wheth er the tr ial cou rt erred in refus ing to g rant a n ew trial after
       a juror attem pted to im peach its own verd ict.


Additionally, Mead ows c laims that the trial cou rt erred by den ying his motion in

limine regarding expert testimony. After a thorough review of the record be fore

this Court, we affirm the judgment of the trial court as to both Appellants.



                                         FACTS




       Appellant Norris owned and operated a salvage yard located at the

entrance to the subd ivision w here J ame s Yate s, the vic tim, lived . Norris lived in

a mobile home adjacent to the salvage yard.                Mr. Yates did not like the

appearance of the junkyard an d made inquiries to state officials as to whether

Norris was violating any governmental regulations.




                                            -2-
       On April 18, 1995, Mr. Ya tes an d his wife dro ve pas t Norris ’ hom e on th eir

way to dinner. As their car passed, Danny Wiggins, an employee of Norris, made

an offensive hand gesture towa rd the couple. M r. Yates stoppe d the car and

attempted to speak with Wiggins. Wiggins returned to the trailer, but Norris came

outside. Norris and Yates quickly got into an argument, and during the course

of the arg umen t, Norris told Yates that he had “messed with the wrong . . . M

F    .” Norris also threatened to blow Yates’ head off. As Norris came off the

porch towa rd the Yates’ car, Ya tes drove awa y.

       Instead of going to the restaurant, the Yates attempted to find Sheriff Leon

Tollett. When they located him at his residence, Yates told the Sheriff about the

animo sity between Norris and him and that he was frightened. The couple then

returned home .

       Mrs. Yates left to pic k up d inner fro m a lo cal res tauran t. W hile he was

waiting for his wife to return, Mr. Yates heard a loud car drive past, racing its

engine.    He noticed tha t the car was an older model brown Toyota. The car

frightened him, so Yates retrieved his unloaded .12 gauge shotgun and placed

it by the front d oor.

       After Mrs. Yates returned, Mr. Yates heard the same car stop in front of h is

home. Yates turned on his porch light, picked up the sh otgun, a nd step ped on to

the front porch . He observed Norris standing on the passenger side of the brown

Toyota he had seen earlier. He could not see and did not identify the driver of

the vehicle. Yates saw a flash of light next to Norris’ head and realized that he

had been shot. He dropped his gun and went inside the house. Mrs. Yates then

drove him to the hospital where he was treated for shotgun wounds to his face,

neck, an d torso.




                                          -3-
      Shor tly after the shooting, an investigator for the Cumberland County

Sher iff’s Depa rtment observed a car matching the description given by Yates.

He and a fellow officer stopped the car, which was driven by Appellant Meadows.

The license plate on the car was registered to a Plymouth in Meadows’ name.

After obtaining Meadows’ consent to search the car, the officers discovered a

yellow .20 gauge shotgun shell in the back floorboard. The officers had the

vehicle towed to the ju stice center and later recovered another .20 gauge shot

shell from a coat which was found in the car. The shells were manufactured by

Winchester and contained number 6 bird shot pellets.

      Special Agent Donald Carman with the Tennessee Bureau of Investigation

(TBI) analyzed the shot wad and shotgun pellets found at the scene of the crime.

Carman concluded that the wadding was consistent with a .20 gauge filler shot

wad manu factured by W incheste r. He furthe r determ ined that th e pellets were

consistent with Num ber 6 bird shot. He also compared one of the shells taken

from Meadows’ car with the physical evidence recovered from the victim’s home

and found that all components of the shell were consiste nt with the wadding and

pellets taken from the scene.

      Russ ell Davis, another special agent with the TBI, testified that he

conducted gunshot residue tests on Meadows’ Toyota.              He found chemical

compounds consistent with gu nshot residue on the roof, rear driver’s side

window , passen ger doo r, and da shboa rd of the ve hicle.

      At trial, Danny Wiggins testified for the state and stated that he was

present at Nor ris’ resid ence throug hout th e day o n Apr il 18.   W iggins testified

that after Yates and Norris got into the argument that day, Norris became

increa singly angry.   Norris stated that he “ought to kill the m      f   .” Around

the time o f the crim e, W iggins saw N orris an d Mea dows leave N orris’ ho me in

                                          -4-
Meadows’ brown older model Toyota. They stated that they were going to “take

care of some b usiness.” Wigg ins testified that after Norris an d Meado ws left, he

heard the car drive around the subdivision and stop. He then heard a loud bang,

which sounded like a shotgun blast. When Norris returned home, he stated that

Meadows had left to “get rid” of the gun. Meadows later returned with Johnny

and N aomi B oles and told W iggins tha t the Bole s would give him an alibi.

       Norma Harris testified that she was dating Meadows in April of 1995. She

stated that she and Meadows owned a shotgun together at the time of the

shooting. On April 18, Meadows came to her home asking to borrow the gun,

and she gave him the gun along with three (3) yellow shot shells. Meadows was

driving a brown car that night. Meadows did not return the shotgun, and when

Harris asked him to retu rn it, Meadows told her to “forget the gun” and “forget

[she] ever saw it.”

       Each Appellant testified in his own behalf at trial. Both denied shooting

the victim and being with anyone who shot the victim. Norris insisted that he was

at home during the shooting, and Meadows claimed that he was at Naomi and

Johnny Boles’ residence at the time of the incident. Meadows further attempted

to explain the presence of gunshot residue on his vehicle. He testified that

Bobby Cumby cam e by the salvag e yard on Ap ril 18 an d ask ed to s hoot a t old

cars in order to set the scope on a rifle. Meadows stated that Cumby placed the

gun on the top of M eadow s’ car in ord er to stead y the rifle while s hooting .

       Naomi and Johnny Boles testified that Meadows was at the Boles’ home

when the call came over the police scann er that a shoo ting ha d occ urred in

Norris’ neighb orhood . Austin Le wis, a relative of Norris, testified that he was in

Norris’ trailer with No rris on the n ight of the s hooting from ap proxima tely 8:00

until 9:10 p .m.

                                          -5-
       In rebuttal, the state called Investigator Bradley Nealon with the

Cumberland County Sheriff’s Department. Nealon testified that he spok e with

Austin Lewis on the night of the incident, and Lewis stated that he had been at

his reside nce all eve ning.

       The jury convicte d both Appellants of attempted first degree murder. From

their co nviction s, Nor ris and Mead ows b ring this appe al.



       SUFFICIENCY OF THE EVIDENCE - NORRIS AND MEADOWS




       Both A ppellants argue that the evidence presented by the State at trial is

insufficient to sustain the jury verdict of attem pted murd er in the first degree.

They claim that du e to var ious in cons istenc ies in th e evide nce, n o ration al trier

of fact cou ld have fo und the m guilty be yond a re asona ble dou bt.

                                           A.

       When an appellant challenges the sufficie ncy of th e evide nce, th is Court

is obliged to review that challenge according to certain well-settled principles.

Wh ere the sufficiency of the evidence is contested on appeal, the relevant

question for the review ing court is whether an y rational trier of fact could have

found the accused guilty of every element of the offense beyond a reasonable

doubt. Tenn . R. App . P. 13(e); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992).

On appeal, the state is entitled to the strongest legitim ate view of the evidence

as well as all rea sonab le and leg itimate inferences that may be drawn therefrom.

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).                  In conducting our

evaluation of the convicting evidence, this Court is precluded from reweighing or

reconsidering the evide nce. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim.

App. 1996); State v. Matthews, 805 S.W .2d 776, 779 (Tenn. Crim . App. 1990 ).

                                           -6-
Moreover, this Court may not substitute its own inferences “for those drawn by

the trier of fact from circum stantial evidence.” State v. Matthews, 805 S.W.2d at

779.

       A verdict of guilty by the jury, approved by the trial judge, accredits the

testimony of the state’s witnesses and resolves all c onflicts in the te stimo ny in

favor of the state. State v. Cazes, 875 S.W.2d 253, 259 (Tenn . 1994); State v.

Harris , 839 S.W.2 d at 75. Although an accused is originally cloaked with a

presumption of innocence, a jury verdict removes this presumption and replaces

it with one of guilt. State v. Tug gle, 639 S.W .2d 913, 914 (Tenn. 198 2). Hence,

on appeal, the burden of proof rests with Appellant to demonstrate the

insufficienc y of the con victing evide nce. Id.

                                          B.

       Both Appellants were convicted of attempted first deg ree m urder , which is

described as acting with intent to “engage[] in action” or to “complete a course of

action” which would constitute the offense of first degree murder. Tenn. Code

Ann. § 39-12 -101( a)(1), (3 ) (1991 ). First de gree m urder is the “in tention al,

premeditated and deliberate killing of another.” Tenn. Code Ann. § 39-13-

202(a)(1) (199 1).

                                          C.

       Yates testified that he observed Norris standing by an older model brown

Toyota, saw a flash next to Norris’ head and then rea lized that h e had b een sh ot.

Yates positively identified Norris as the shoote r. The testim ony of a victim

identifying the defendant as the perpetrator of the crim e is sufficient, in and of

itself, to support a conviction. State v. Strickland, 885 S.W.2d 85, 87 (Tenn. Crim.

App. 1993 ).




                                          -7-
       Furthermore, several witnesses, including Norris himself, testified that

Norris threatened to blow Yates’ head off within hours of the shooting. Wiggins

testified that Norris and Meadows left Norris’ home in Meadows’ car shortly

before the crime , both claim ing that the y were go ing to “take care of some

busine ss.” Althou gh Ya tes co uld no t positive ly identify Meadows as the driver of

the car, he was able to identify Meadows’ vehicle. Harris testified that Meadows

borrowed her sh otgun and s ome amm unition on the evening of April 18. Law

enforcement authorities recovered a mmu nition from Me adows’ vehicle which was

consistent with the physical evidence found at the crime scen e. Moreover,

gunshot residue was discovered on Meadows’ vehicle.

       The evidence against the Appellants was overwhelming. Although bo th

Appe llants presented evidence of an alibi at the time of the shooting, the jury, as

trier of fact, was free to disre gard tha t testimon y. Additio nally, any c onflicts in

proof were resolved by the jury.          The weight and credibility of witnesses’

testimony are matters entrusted sole ly to the jury as the triers of fac t. State v.

Sheff ield, 676 S.W .2d 542 (Tenn . 1984); Byrge v. S tate, 575 S.W.2d 292 (Tenn.

Crim. App . 1978).

                                           D.

       Meadows also claims that there was insufficient evidence to establish that

Appe llants intended to kill the victim, due to the lack of evidence that Yates could

have died from a sin gle shot of bird sho t. To the contrary, Dr. Rob erto Baylosis,

an eme rgency room physician at Cu mberland Medical Ce nter, testified that the

gunshot wounds inflicted upon the victim could have ca used h im to blee d to

death had th e pelle ts pun ctured his arterial vess els.       In an y even t, there is

substantial evidenc e of the Appe llants’ int ent to k ill, in light of N orris’ m ultiple

threats to kill Yates within hours of the shooting.

                                           -8-
                                            E.

         This Court concludes that a rational trier of fact could have determined that

Appe llants intended to “engage[] in action” or to “complete a course of action”

which w ould con stitute the offe nse o f first deg ree m urder . This is sue is without

merit.



           MOTION FOR CONTINUANCE - NORRIS AND MEADOWS




         In the second allegation of error, Appellants claim that the trial court erred

in denying their respective motions for a continuance in order to secure Bobby

Cum by’s presence at trial. They contend that Cumb y’s testimony wo uld have

corroborated Meadows’ testimony by explaining the presence of gunshot residue

on Mead ows’ car.

         On the first day of trial, Appellants filed a motion for continuance, on the

basis that Bobby Cumby could not be located. Meadows wished to call Cumby

as a witne ss to te stify that, o n the d ay of the incide nt, Cu mby h ad pro pped a rifle

on the hood of Meadows’ vehicle while sho oting at old cars in the junkyard.

According to Meadows, this testimony would explain the presence of gunshot

residue on his vehicle.      The Sheriff’s Department had attempted to serve a

subpoena on Cumby to secure his presence at trial, but was unsuccessful

because Cum by was on vac ation in Florida . Appa rently, th e trial ha d prev iously

been rescheduled from a prior date due to inclement weather. However, the

Sher iff’s Depa rtment w as una ble to loca te Cumby for service of the prior

subp oena as we ll.




                                            -9-
        Initially, we note that Norris failed to include this issue in his motion for new

trial. 1 There fore, as to h im, the iss ue is waive d. Tenn . R. App . P. 3(e); State v.

Maddox, 957 S.W .2d 547, 553 (Tenn. Crim . App. 1997 ).

        Nevertheless, beca use th e issue was p roper ly raised by Mead ows, w e will

address it on its merits. The pr ocedu re for requ esting a c ontinua nce in ord er to

secure the presence of a witness is well-settled:

               When requesting a continuance to accommodate a missing
        witness, the gro unds mus t be se t out in a n affida vit which alleges (a)
        the substance of the facts the defendant expects to prove through
        the unavailable witness; (b) sufficient facts to establish the
        relevance and materiality of the testimony; (c) the admissibility of
        the testim ony, if the witness was available; (d) the non-cum ulative
        nature of the testimony; (e) the witness’ availability at a later date;
        and (f) due diligence in attempting to obtain the presence of the
        witness. State v. Dykes, 803 S.W.2d 250, 256-57 (Tenn. Crim. App.
        1990); Tenn. Code Ann. § 19-1-1 10(a). Fa ilure to file the m otion in
        proper form may be a groun d for den ial. State v. Dykes, 803
        S.W.2d at 257.

State v. Zirkle, 910 S.W .2d 874, 884 (Tenn. Crim . App. 1995 ).

        A motion for a continuance is addressed to the sound discretion of the trial

judge and his ruling on the m otion will not be disturbed in the absence of an

abuse of discretion to the preju dice of the defend ant. State v. Hines, 919 S.W.2d

573, 579 (Tenn. 1995). An abuse of discretion is demonstrated by showing that

the failure to grant a continuance denied defendant a fair trial or that it could be

reaso nably concluded that a different result would have followed had the

continua nce be en gran ted. Id. at 579.

            Under the record before this Court, there is no indication that Cumby

would be available at a later date. The Sheriff’s Department attempted on two

occasions to serve Cum by with a su bpoen a to appea r in court. T hose a ttempts

        1
          In his motion for new trial, Norris alleges “[o]ther grounds which will be supplied by the
Defendant.” Such an allegation is insufficient to preserve the issue on appeal. “[N]o issue presented for
review shall be predicated upon error . . . unless the same was spe cifica lly stated in a motion for new
trial.” Tenn. R. App. P. 3(e) (emphasis added ). No written amendm ent to the motion is in the record
before this Court, nor did Norris attempt to orally amend the motion.

                                                -10-
were unsu cces sful du e to the inability to locate Cum by. Alth ough Appe llants

attribute this to Cumby’s being on vacation in Florida during the second attempt

at service , no exp lanatio n is offered as to why Cumby could not be located on the

first attempt. Because Appellants have not established that Cumb y would have

been availab le at a later date, we conclude there was no abus e of dis cretion in

denying a continu ance. See State v. Zirkle , 910 S.W.2d at 884.

         This issu e has n o merit.



                           EXPERT TESTIMONY - MEADOWS




         Meadows additionally insists that the trial court erred in allowing TBI

Special Agen t Russ ell Davis to testify. Davis’ testimony concerned the presence

of gunshot residue on the top of Meadows’ car. Meadows claims that Davis’

testimony was prejudicial. Further, he argues that this testimony, coupled with

the denial of a continuance, had the effect of compelling Meadows to testify at

trial.

         Because Meadows failed to include this issue in his m otion fo r new tr ial,

the issue is waived.2 Tenn. R. App. P. 3(e ); State v. Spadafina, 952 S.W.2d 444,

451 (Tenn. Crim. App. 1996). In any event, the evidence of gunshot residue on

Meadows’ car was certainly relevant at trial. Tenn. R. Evid. 401. Furthermore,

Meadows has cited no grounds for excluding the evidence, other than that it had

a prejudicia l effect. Mead ows’ rig ht to refr ain from testifying does not include the

right to be free of any prejudicial testimony against him.

         This issu e is withou t merit.



         2
         Meadows’ motion for new trial also contains an allegation of “[o]ther grounds which will be
supplied by the Def endan t.”

                                                 -11-
        MISSING WITNESS ARGUMENT - NORRIS AND MEADOWS




       Norris and Me adows further ass ert that the prosecution made improper use

of the “missing witness” a rgume nt during its closing argument. They argue that

the state was precluded from mentioning Bobby Cumby in its closing, because

Cumby could no t be locate d to testify at trial. Th ey con tend th at the p rosec ution’s

argument overly e mph asize d the a bsen ce of C umb y’s testimony and, therefore,

caused the jury to discredit Mead ows’ testimon y.

       In its closing argument, the prosecution made the following remarks:

              Now, Mr. Meadows came here today and told you that by
       some sheer coincidence, on the same day this happened, his good
       friend Mr. Cumby , his real good friend Mr. Cum by, was out there
       taking target p ractice. And not only was he taking target practice,
       but by sheer coincidenc e, he w as us ing his Toyo ta to sig ht this
       barrel over. What are the odds? Then they take -- and that’s all you
       have to go by, by the way, ladies and gentlemen, is Mr. Meadows’
       word. . . . What are the odds?

       “[A] party is entitled to argue, and have the jury instructed, that if the other

party has it pe culiarly w ithin his power to produce a witness whose testimony

would naturally be favorable to him, the failure to call that witness creates an

adverse inference that the testimon y would not favor h is contentions.” State v.

Middlebrooks, 840 S.W.2d 317, 33 4 (Ten n. 1992 ) (citations o mitted). Howeve r,

in order to invoke the “missing witness” rule, the evidence must show that “the

witness had knowledge of material facts, that a relationship exists between the

witness and the party that w ould na turally incline th e witness to favor the party

and that the missing witness was available to the process of the Co urt for trial.”

Delk v. S tate, 590 S.W .2d 435, 440 (Tenn. 197 9).

       In reviewing a claim of prosecutorial misconduct during closing a rgume nt,

we are guided by such factors as:


                                           -12-
      1. The conduct complained of viewed in conte xt and in light of the
      facts and circumstances of the case.

      2. The curative m easure s unde rtaken b y the cou rt and the prosec ution.

      3. The intent of the prosec ution in m aking the improp er statem ent.

       4. The cumulative effect of the improper conduct and any oth er erro rs in
the reco rd.

      5. The relative strength or weakness of the case.

Judge v. State, 539 S.W .2d 340, 344 (Tenn. Crim . App. 1976 ).

      W e mus t initially no te that n either Appella nt obje cted to the alle gedly

improper argume nt. Therefore, bo th have waived th is issue. State v. Green, 947

S.W.2d 186, 18 8 (Ten n. Crim. A pp. 199 7); State v. Seay, 945 S.W.2d 755, 762

(Tenn. Crim. A pp. 199 6); State v. Little, 854 S.W.2d 643, 651 (Tenn. Crim. App.

1992); Tenn. R. App. P. 36(a). Additionally, this issue was not included in Norris’

motion for new trial and is waived, as to him, for this reason as well. Tenn. R.

App. P . 3(e); State v. Maddox, 957 S.W.2d at 553.

      Regardless, from a reading of the state’s entire closing argum ent, it does

not appear that the prosecution was asking the jury to draw an adverse inference

from Cum by’s abse nce. The prosecution was merely exploring the credibility of

Meadows’ explanation for the presence of gunshot residue on his vehicle . In light

of the overwhelming evidence of guilt, we do not be lieve that an y referenc e to

Cumby during clos ing argu ment a ffected the verdict. See Judge v. State, 539

S.W.2d at 346.

      This issu e has n o merit.



     JUROR TESTIMONY AS BASIS FOR NEW TRIAL - NORRIS AND

MEADOWS




                                       -13-
       In their final issue, Appellants argue that the trial court erred in denying

their respective motions for a new trial on the basis of a juror’s testimony that she

was un comfo rtable with th e verdict.

       At the beginning of the sentencing hearing, defense counsel called Kathy

Jan Burns to testify concerning her dissa tisfaction with the jury’s verdict. She

stated that she w as a m emb er of the jury wh ich fou nd No rris and Me adows guilty

of attempted first degree murder. She testified that she felt that the verdict was

“rushed ,” and the jury did not fu lly deliberate on the evidence presented at trial.

She further stated that sh e “had seriou s dou bts within five minutes” after the

verdict.

       At the hearing on the motion for new trial, the defense presente d an

affidav it signed by James Morgan indicating that he heard W ayne Fin dley, a

juror, state that three jurors were going to “hang Jack’s a ss.” How ever, the s tate

called Findley to te stify at the hearing, and Findley denied making such a

statem ent.

       Norris failed to includ e this iss ue in h is mo tion for n ew trial. Therefore, as

to him, the issue is waived. Tenn. R. App. P. 3(e); State v. Maddox, 957 S.W.2d

at 553. Nevertheless, we will address the issue with regard to Meadows.

       Tenn. R. Evid. 606(b) provides:

               Upon an inquiry into the validity of a verdict or indictme nt, a
       juror may no t testify as to any matter or statement occurring during
       the cours e of the jury’s deliberations or to the effect of anything
       upon any juror’s mind or emotion as influencing that juror to assent
       to or dissent from the verdict or indictment or concerning the juro r’s
       mental processes, except that a juror may testify on the question of
       whether extraneous prejudicial information was improperly brought
       to the jury’s attention, whether any outside influence was impro perly
       brought to bear upon any juro r, or wh ether th e jurors agree d in
       advance to be bound by a quotient or gambling verdict without
       further discussion; nor may a juror’s affidavit or evidence of any
       statement by the juror concerning a matter about which the juror
       would be precluded from testifying be received for these purposes.

                                          -14-
A juror may testify or submit an affidavit in connection with a motio n for ne w trial,

in the limited circums tances of:

       (1) “extraneo us prejud icial informa tion” finding its way into the jury
       room,

       (2) improper outside pressure on a juror, or

       (3) a quo tient or gam bling verd ict.

Tenn. R. Evid. 606(b), Advisory Commission Comm ents.

       Juror Burns’ testimony concerning her personal dissatisfaction with the

jury’s verdict was inadmissible e vidence in sup port of the Appellants’ motion for

new trial. Clearly, her testimony did not indicate that she was subjected to

improper outside press ure or that “extran eous p rejudicial info rmation ” came into

the jury room.     Nor did she testify that the jury’s verdict was a quotient or

gamb ling verdict.

       This same is true for the information contained in Morgan’s affidavit.

Although Findley testified that he ne ver made the stateme nt that three jurors

were going to “hang Jack’s ass,” such a state men t would not be adm issible

evidence un der Tenn . R. Evid. 606(b).

       Because the trial court was presented with no competent evidence

concerning the validity of the jury’s verdict, there was no error in failing to grant

a new tria l on this ba sis. This iss ue is witho ut merit.




                                          -15-
                                 CONCLUSION




      After a thorough review of the record before this Court, we find no

reversible error. Accordingly, the judgment of the trial court is affirmed.



                                 ____________________________________
                                 JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
THOMAS T. WOODALL, JUDGE

___________________________________
WILLIAM B. ACREE, JUDGE




                                       -16-
