        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE            FILED
                        JULY SESSION, 1997           February 19, 1999

                                                  Cecil W. Crowson
STATE OF TENNESSEE,          )                  Appellate Court Clerk
                                 C.C.A. NO. 01C01-9604-CC-00174
                             )
      Appellee,              )
                             )
                             )   MARION COUNTY
VS.                          )
                             )   HON . THOM AS W. G RAHAM
CHARLES HAMLIN,              )   JUDGE
                             )
      Appe llant.            )   (Direct Appeal - First Degree M urder;
                             )   Voluntary Man slaughter)




FOR THE APPELLANT:               FOR THE APPELLEE:

WIL LIAM H . ORT WE IN           JOHN KNOX WALKUP
Ortwein & Associates, P.C.       Attorney General and Reporter
723 McCallie Avenue
Chattanooga, TN 37403-0016       KAREN M. YACUZZO
                                 Assistant Attorney General
WILLIAM C. KILLIAN               450 James Robertson Parkway
No. I Oak Avenue                 Nashville,TN 37243
Jasper, TN 37347
                                 J. MICHAEL TAYLOR
                                 District Attorney General

                                 STE VE ST RAIN
                                 Assistant District Attorney
                                 Jasper, TN 37347



OPINION FILED ________________________

AFFIRMED IN PART; AND MODIFIED IN PART; REMANDED FOR RE-
SENTENCING

JERRY L. SMITH, JUDGE
                                   OPINION


      On May 19, 1995, a Marion County jury convicted Appellant Charles

Ham lin of one count of first degree murd er and one count of voluntary

manslau ghter. On June 29, 1995, the trial court imposed concurrent sentences

of life imprisonment for the first degree murder conviction and seven years and

six months for the voluntary m anslau ghter co nviction. Appe llant ch alleng es his

convictions, raising the following issues:

      1) whether the evidence was sufficient to support Appellant’s conviction for
      first degree mu rder;
      2) whether the State prevented Appellant from having a fair trial by failing
      to disclose exculpatory evidence;
      3) wheth er the Sta te enga ged in pr osecu torial misc onduc t;
      4) whether the trial court erred when it failed to examine the State’s file for
      any un disclo sed e xculpa tory m aterial;
      5) whether the trial court erre d when it allowed a witness fo r the State to
      testify about the effects of methamphetamine use; and
      6) whethe r the trial cou rt erred when it ruled th at a gu n and a boo t could
      not be admitted into evidence.

After a review of the record, we affirm the judgmen t of the trial cou rt in part,

modify the conviction of first degree murder to second degree murder and

remand this case to the trial court for re-sentencing on the conviction of second

degree m urder.



                                     I. FACTS




      Clay Haynes testified that on the morning of February 19, 1994, Glenn

Wallace, Jr., yelled at him for waving to his wife , Sandy Wallace. A short time

later, Haynes drove to his fa ther’s h ome , place d two g uns in his truck, and drove

to the home of Glenn Wa llace, Jr. Wh en he arrived , Hayn es pick ed up one o f his



                                         -2-
guns, got out of his truck, and challenged Glenn Wallace, Jr., to a fight. When

he saw that Glen n W allace, Jr., was una rmed, Ha ynes put his gun ba ck in his

truck and then he and Glenn W allace, Jr., began fighting. As Haynes began

beating Glenn Wallace, Jr., Glenn Wallace, Sr., arriv ed an d told Haynes to stop.

Haynes then heard a gunshot and he saw Glenn Wallace, Sr., fall to the ground.

Haynes heard some more gunshots, saw Glenn Wallace, Jr., lying on the ground,

and saw Appellant standing a few feet away. At this point, Haynes fled the scene

in his truck.



       Christy Haynes testified that she was at her grandfather’s house when her

father, Clay Haynes, took two guns out of the house and put them in his truck.

Clay Haynes then told Christy Haynes that he was upset over something that

Glenn W allace, Jr., had done earlier that morning. When Clay Haynes drove

away, Christy Hayn es ca lled Ap pellan t and to ld him that she was worried about

her father because he was taking some guns with him to confront Glenn Wallace,

Jr. She aske d Appellant to m ake sure tha t nothing happ ened to he r father, and

Appellant assured her that her father would be safe.



       Appellant testified that h e was working on a truck in his yard when he

heard his da ughte r, San dy W allace , yell for him to help her remove her children

from the hom e of Glen n W allace, Jr.         Appellant then walked over to Glenn

Wallace, Jr.’s home and sa w Glen n W allace, Jr., figh ting with C lay Hayn es. At

this point, Glenn W allace, Sr., approa ched Ap pellant and told him to leave

because the fight was not his concern. Appellant testified that he then shot

Glenn Wa llace, Sr., when he po inted h is gun at App ellant a nd thre atene d to kill

him. Appellant also testified that he shot Glenn Wallace, Jr., when he yelled and

                                         -3-
began running in his direction. Appellant adm itted tha t Glen n W allace , Jr., did

not have any weapons in his hand when Appellant shot him. Appellant testified

that he carried a loaded gun with him at all times.



      Appellant was convicted of voluntary manslaughter for the killing of Glenn

Wa llace, Sr., and first degree murder for the killing of Glenn W allace, Jr.



                     II. SUFFICIENCY OF THE EVIDENCE




      Appellant conten ds that the evidenc e was insuffic ient to s uppo rt his

conviction for the first degree m urder of Glenn Wallace, Jr.            Specifically,

Appellant contends that the evidence was insufficient because there was no proof

that the killing was committed with premeditation and deliberation. We agree.



       When an appellant challenges the sufficiency of the evidence, this C ourt

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

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

of the State ’s witness es and resolves all conflicts in the testimony in favor of the

State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). Although an accused

is originally cloaked with a p resump tion of innocenc e, a jury verdict remo ves this

presumption and replaces it with one o f guilt. State v. Tug gle, 639 S.W.2d 913,

914 (Tenn . 1982). H ence, o n appe al, the burd en of pro of rests with Appellant to

demons trate the insufficie ncy of the convicting evidenc e. Id. On appeal, “the

[S]tate is entitled to the strongest legitimate view of th e evide nce a s well a s all

reaso nable and legitimate inferences that m ay be drawn therefrom.” Id. Wh ere

the sufficiency of the evidence is contested on appeal, the relevant question for

                                          -4-
the reviewing court is wheth er any rational trier of fact could have found the

accused guilty of every element of the offense be yond a re asona ble dou bt.

Jackson v. Virgin ia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560

(1979). In conducting our evalu ation o f the co nvicting eviden ce, this Cour t is

precluded from reweighing or reconsidering the evide nce. State v. Morgan, 929

S.W.2d 380, 383 (Tenn. Crim. App. 1996). Moreover, this Court may not

substitute its own inferences “for those drawn by the trier of fact from

circumstantial evidence.” Id. at 779. Finally, Rule 13(e) of the Tennessee Rules

of Appellate Procedure provides, “findings of guilt in criminal actions whether by

the trial court or jury shall be set aside if the evidence is insufficient to support the

findings b y the trier of fac t beyond a reaso nable d oubt.”



        W hen Glenn Wallace, Jr., was killed in 1994, Tennessee’s first degree

murder statute provided that “[f]irst de gree m urder is: [a]n in tention al,

premeditated and deliberate killing of another.” Tenn. Code Ann. § 39-13-202

(1993). 1    Premeditation requires a showing of a previously formed design or

intent to kill. State v. West, 844 S.W.2d 144, 147 (Tenn. 1992).                      Deliberation

requires that the offense be committed with cool purpose, free of the passions of

the mom ent. Id. Delibe ration also requires “some period of reflection, during

which the mind is free from the influence of excitement.” State v. Brown, 836

S.W.2d 530, 538 (Tenn. 19 92).                      Preme ditation and delibe ration are

determinations for the jury and may be inferred from the manner and

circumstances of the killing. State v. Bord is, 905 S.W.2d 214, 222 (Tenn. Crim.

App. 19 95). How ever, a jury m ay not en gage in specu lation. Id.


        1
         A 1995 ame ndm ent elim inated de liberation as an elem ent of first de gree m urder. See Tenn.
Code Ann. § 39-13-202(a)(1) (Supp. 1998) (“First degree murder is: A premeditated and intentional killing
of another.”).

                                                 -5-
      This Court has previously recognized the nature of proof which must be

presented before a jury may properly infer either deliberation or premeditation:

      (1) facts about how and what the defendant did prior to the actual killing
      which show he was engaged in activity directed toward the killing, that is,
      planning activity;
      (2) facts abo ut the defendant’s prior relationship and conduct with the
      victim from which motive may be inferred; and
      (3) facts about the nature of the killing from which it may be inferred that
      the manner of killing was so particular and exacting that the defendant
      must h ave inten tionally killed ac cording to a preco nceived design.

State v. Schafer, 973 S.W.2d 269, 273 (Tenn. Crim. App. 1997) (citing State v.

Gentry, 881 S.W .2d 1, 4–5 (Tenn . Crim. A pp. 199 3)).



      In this case, the State failed to introduce any evidence establishing the

elements of premeditation and deliberation.        First, there was absolutely no

evidence that Ap pellant had planned to kill Glenn Wallace, Jr., or that he

engaged in any activity to further that plan.       There was also no proof that

Appe llant killed with a “cool purpose” or that he had any time between his

decision to kill and the act of killing during which he could reflect on his decision.

The State’s only argument on appea l is that the jury could have inferred that after

he received the telephone call from Christy Haynes about the fight between Clay

Haynes and Glenn Wallace, Jr., Appellant dispassionately went to the scene of

the fight for the purpose of killing Glenn W allace, Jr. Wh ile this theory may ha ve

been true, it remains only a theo ry becau se the S tate failed to s upport it with

evidence. Wh ile the jury may have speculated that the State’s theory was true,

specu lation is not a substitute for proof. West, 844 S.W .2d at 148 .



      In addition, the S tate failed to in troduce any evide nce ab out App ellant’s

relation ship with Glenn Wallace, Jr., that established a motive for the killing.


                                         -6-
Although there w as so me e videnc e that A ppella nt’s daughter and Glenn Wallace,

Jr., had been experiencing some marital difficulties, there was no evidence that

Appellant himself had e xperienced a ny problem s with Glenn W allace, Jr.

Further, the State did not introduce any facts about the nature of the killing from

which the jury c ould have inferred that Appellant had intentionally killed according

to a preconceived design. In fact, none of the State’s witnesses testified that they

had even seen the actual killing of Glenn Wallace, Jr., they only testified that they

heard gunshots and then saw Glenn Wallace, Jr., lying on the ground and

Appellant standing nearby. In deed, th e only evid ence p resente d by the S tate

about the natur e of the killing was evid ence th at Glenn Wa llace, Jr., had died

from a single gunshot wound to the head. This evidence does not establish

either preme ditation or deliberation in an y way.



            “The law in Tennessee has long recognized that once the homicide has

been estab lished , it is presu med to be m urder in the seco nd deg ree. Th e state

bears the burden of proof on the issue of premeditation and deliberation sufficient

to elevate the offense to first-degre e murde r.” Brown, 836 S.W.2d at 543 (citation

omitted). In this case, the State has simply failed to meet this burden and the

presumption of second degree murder is therefore unrebu tted. There is ho wever,

amp le evidence in the record to establish that Appellant knowingly shot and killed

Glenn Wallace, Jr., without the adequate provocation required to reduce the

conviction to voluntary man slaughter. 2                Acco rdingly , we m odify A ppella nt’s

conviction to second degree murder and we remand this case to the trial court for

resentencing.


        2
        “Voluntary manslaughter is the intentional or knowing killing of another in a state of passion
produced by adequate pro vocation sufficient to lead a reasonable person to act in an irrational manner.”
Tenn. Code A nn. § 39-13-211(a) (1997).

                                                  -7-
                        III. SUPPRESSION OF EVIDENCE




       Appellant contend s that he d id not rece ive a fair trial bec ause th e State

suppresse d exculpatory evidence. Specifically, Appellant claims th at the Sta te

withhe ld four witnes s state men ts and a lab re port tha t were fa vorab le to his

defense.



              In Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215

(1963), the United States Supreme Court held that the prosecution has a

constitutional duty to furnish th e accu sed with exculpa tory eviden ce perta ining to

either the accused’s guilt or innocence and the potential punishment that may be

imposed. Failure to reveal exculpatory evidence violates due process where the

evidence is materia l either to guilt or pun ishme nt, irrespec tive of good faith or bad

faith of the pros ecution.    Id. 373 U.S. at 87, 83 S. Ct. at 1196–97.             The

prosecution must also disclose evidence which may be used b y the defe nse to

impeach a witness . Giglio v. United States, 405 U.S. 150, 154–55, 92 S. Ct. 763,

766, 31 L .Ed . 2d 104 (1972); Workm an v. State, 868 S.W.2d 705, 709 (Tenn.

Crim. App . 1993).



       Before a reviewing court may find a due process violation under Brady, all

of the following four prerequisites must be satisfied:

       1) The defendant must have requested the information (unless the
       evidence is obvious ly exculpa tory, in which case the State is bo und to
       release the inform ation whethe r requested o r not);
       2) The State must have suppressed the information;
       3) The information must have been favorable to the accused; and
       4) The informa tion mu st have b een m aterial.




                                           -8-
State v. Evans, 838 S.W.2d 185 (Tenn. 1992). In Kyles v. Whitley, 514 U.S. 419,

434, 115 S. C t. 1555, 15 66, 131 L. Ed. 2d 490 (1995), the United States

Supreme Court stated that in determining whether information is material, “[t]he

question is not whether the defendant would more likely than not have received

a different verdict with the evidence, but whether in its absence he received a fair

trial, understood as a trial resulting in a verdict worthy of co nfidence.”



                                    A. Witness S tatemen ts




        Appellant conten ds that the State violated Brady when it failed to disclose

the pre-trial statements of four witnesses. We disagree.



        First, Appellant contends that the State violated Brady when it failed to

disclose the pre-trial s tateme nt of W illiam Rap ier. However, Appellant has failed

to identify any p art of the rec ord that ind icates tha t Rapier made any such

statem ent, that the State p osse ssed the sta teme nt, or tha t it was th e leas t bit

exculpatory. Indeed, the trial court specifically found tha t there was no proof that

the State ever had any state ment fro m Ra pier that it failed to disclose .



        Second, Appellant contends that the State also violated Brady when it

failed to disclose the pre-trial s tateme nts of Joyce Da vis and Ton y Wa llace, Jr. 3

Howeve r, Appella nt conce des tha t the State provid ed him with these statem ents

during trial. This Court has previously stated that “[i]f previously undisclosed

evidence is disclo sed d uring tria l, then no Brady violation occurs unless prejudice


        3
        The record indicates that both of these witnesses gave pre-trial statements in which they
admitted that they had initially failed to tell the police that Tony Wallace, Jr., had taken a gun from the
crime scene and hidden its existence from investigators.

                                                    -9-
results from the delayed disc losure.” State v. Jim Inman, No. 03C01-9201-CR-

00020, 1993 WL 4833 21, at *9 (Ten n. Crim . App., Knoxville, Nov. 23, 1993)

(citing United States v. Word , 806 F.2d 658, 665 (6th Cir. 1986)). Appellant has

failed to indicate anything that he could or would have done differently if he had

known about these statements before trial. Indeed, the record indicates that

Appe llant’s counsel reviewed each statement and thoroughly cross-examined

both witnesses about their pre-trial statements. Thus, Appellant has not shown

that he was prejudiced by disclosure of these statements during trial as opposed

to disc losure before trial.



       Finally, Appellant contends that the State violated Brady when it failed to

disclose a pre-tr ial state men t of San dy W allace in which she mentioned the

existence of another witness, Sherry Dixson, about whom Appellant had no

previous knowledge.        Appellant is correct that the general rule is that the

prosecution has “a duty to disclose the names and addresses of witnesses who

could exonera te the accu sed, corr oborate the ac cuse d’s po sition in asse rting his

innocence, or possessed favorable information that would have enabled defense

counsel to conduct further and possibly fruitful investigation.” State v. Mars hall,

845 S.W.2d 228, 233 (Tenn. Crim. App. 1992). However, “[t]he pro secu tion is

not required to disclo se info rmatio n that th e acc used alread y poss esse s or is a ble

to obtain.”    Id.   “Wh en excu lpatory evidence is equally available to the

prosecution and the accused, the accused ‘must bear the responsibility of [his]

failure to seek its discovery.’” Id. (citation om itted). In this case, the information

contained in Sandy Wallace’s statem ent was equally av ailable to b oth parties .

Indeed, Sandy Wallace is Appellant’s daughter and she testified as a defense

witness at trial. There is absolu tely no indic ation that had A ppellant as ked h is

                                           -10-
daughter whether she knew of any other witnesses, she would have refused to

disclose the na me o f Sher ry Dixson. Further, the record indica tes that Sherry

Dixson lived in the neighborhood where the killings took place. Thus, Appellant

could easily have identified her as a possible witness and asked her whether she

had seen or heard anything on the day of the killings. In short, because this

information was equally available to both Appellant and the State, Appellant

“must bea r the respons ibility of [his] failure to seek its discovery.” Id.




                                   B. Lab Rep ort




       Appellant contends that he did no t receive a fa ir trial becau se the S tate

suppressed a lab report of tests performed on the shirts that Glenn Wa llace, Sr.,

was wearing when he was killed. We disagree.



       Although the sequ ence of even ts con cernin g the la b repo rts is somewhat

unclear, it appears that the trial court originally imposed a deadline of July 31,

1994, for the State to provide Appellant with results of tests preformed on the

victims. At that time, the State notified Appellant and the court that it could not

predict when the Tennessee Bure au of In vestiga tion wo uld complete its testing

and thu s, it could no t guaran tee disclo sure of the reports b y a certain d ate.



       On Februa ry 1, 1995 , the T.B .I. reported the resu lts of its tests on the body

of Glenn W allace, Sr. The results indicated that there was gunshot residue on

his hands and that he “could have fired, handled, or [bee n] nea r a gun when it

fired.” The se resu lts were inc luded in a stipulation th at was re ad to the ju ry.




                                          -11-
       On March 8, 1995, the State notified Appellant and the court that it had

submitted Glenn Wallace, Sr.’s shirts for gunshot residue testing. The State

indicated that it had not submitted the shirts earlier because it had not known that

they were in the possession of the local sheriff’s office. Appellant and the court

both agreed that the State had not intentionally withheld the evidence, and the

court informed Appellant that he could request a continuance if he needed

additional time to review the lab resu lts when th ey were released . The T .B.I.

released its report on May 3, 19 95. The test results indicated that there was

gunshot residue on both the shirt and undershirt of Glenn Wallace, Sr., but

because of the a bsen ce of g unpo wder o r lead va por res idues , it was n ot pos sible

to determine a muzzle-to-garment distance. These findings were also included

in the stipu lation that w as read to the jury.



       The T.B.I. subsequently performed additional testing on the outer shirt of

Glenn Wallace, Sr.      This test revealed the “presence of particle s unique to

gunshot primer re sidue.” T he T.B .I. agent who performed the test surmised that

the primer residue had traveled with the bullet and had been deposited on the

clothing upon im pact. The T.B.I. reported these test results on July 7, 1995,

approximately two mo nths after A ppellant’s trial was co mplete d. The S tate

provided Appella nt with a co py of the re port as so on as it rec eived it.



       In its order denying A ppellant’s mo tion for a new trial, the trial court found

that the State’s failure to provide Appellant with this third lab report before trial did

not violate Brady. The trial court found that the State had not suppressed either

Glenn Wa llace, Sr.’s sh irts or the results of tests performed on those shirts. The

trial court als o foun d that, e ven as sum ing tha t the Sta te had supp resse d this

                                          -12-
evidence, there had been no showing that the evidence wa s either exculpatory

or materia l under the standa rds of Kyles. The trial court found that the evidence

in the third lab report was not material because evidence that there was gunshot

residue on the sh irt of Glenn Wa llace, Sr., was co mplete ly consiste nt with the lab

report that had been read to the jury which indicated that there was gunshot

residue on the hands of Glenn Wallace, Sr. Thus, the trial court found that there

was no new evidence in the third lab report that supported Appellant’s claim of

self defen se.



       “The findings of fact and conclusions of law made by the trial court after

an evidentiary hearing are afford ed the w eight of a ju ry verdict; this Court will not

set aside the judgm ent of the trial court unless the evidence contained in the

record preponderates against its findings.” State v. Dick, 872 S.W.2d 938, 943

(Tenn. Crim. App. 1993) (citation omitted).         Appella nt has faile d to identify

anything in the record that preponderates against the trial cou rt’s findings. W e

agree with the trial court that the absence of the evidence contained in the third

lab report did not deprive Appellant of “a trial resulting in a verdict worthy of

confiden ce.” Kyles, 514 U.S. at 434, 115 S. Ct. at 156 6. This iss ue has no me rit.



                     IV. PROSECUTORIAL MISCONDUCT




       Appellant contends that the State engaged in prosecutorial misconduct by

withholding the pre-trial statements of Joyce Davis and Tony Wallace, Jr., and

the T.B.I. lab report of July 7, 1995. We disagree.




                                          -13-
         This Court has stated that in orde r to prev ail on a claim that prosecutorial

misconduct denied the defendant of a fair trial, the defendant is required to show

that the misconduct was so improper that it “affected the verdict to his detrime nt.”

State v. Gray, 960 S.W.2d 598, 609 (Tenn. Crim. App . 1997) (citation om itted).

“In reviewing an allegation of improper conduct, this Court should consider

several factors inc luding the intent of the prosec utor, the curative measures

which were un dertake n by the c ourt, the imprope r conduct viewe d in context and

in light of the facts and circumstances of the case, the cumulative effect of the

[improper conduct] with any other errors in the record, and the relative s trength

or weakne ss of the case .” Id. (citation om itted).



         In this case, Appellant has simply failed to meet his burden of showing that

he was prejudiced by the alleged miscon duct. As previous ly discuss ed, the S tate

disclosed the statements of Joyce Davis and Tony Wallace, Jr., to Appellant at

trial and Appellant’s counsel vigorously cross-examined both witnesses about the

statements. In addition, Appellant was not prejudice d by the fa ilure of the S tate

to disclose the third T.B.I. lab report befo re trial because the report contained no

exculpatory evidence that w as not already b efore the jury. This is sue is without

merit.



                   V. FAILURE TO INSPECT THE STATE’S FILE




         Appellant contends that the trial c ourt er red wh en it failed to perfor m an in

camera inspection of the State’s file to determ ine whether it contained any

undisclosed exculpatory material. Appellant also claims that the trial court erred

when it failed to have the file sealed and preserved for appeal. We disagree.

                                            -14-
       The record indicates that on June 23, 1995, one month after completion

of the trial, A ppella nt filed a motio n ask ing the court to order th e State to sub mit

its file for inspection. Although the trial court apparently denied this motion, the

record does not contain an order to that effe ct. App ellant th en cla imed in his

amended motion for a ne w trial tha t the trial c ourt er red in d enying his inspection

motion. Following a hearing on the motion for a new trial, the trial court issued

an order w hich st ated th at in regard to Appellant’s request that the court inspect

the State’s file, Appellant “was not entitled to such extraordinary relief and [he

had] presented no authority for that relief.” Although the record contains a portion

of the hearing on the motion for a new trial, it does not contain the portion that

addre ssed this issu e. The refore , it is not pos sible for this C ourt to consider the

argum ents of counsel, any evidence presented, or the reasoning of the trial cour t.

“Absent the necessary relevant material in the record an appellate court cannot

consider the me rits of an issue.” State v. Ballard, 855 S.W.2d 557, 561 (Tenn.

1993) (citing Tenn. R . App. P. 24(b). A ppellant has failed to p roperly preserve

this issu e for ap peal.



       Howeve r, it appears that even if this issue had not been waived, Appellant

would still not be en titled to relief. In State v. Caughron, 855 S.W.2d 526, 540–41

(Tenn. 1993), the Tennessee Supreme Court held that a trial court had not

abused its discretion when it refused to conduct an in camera inspection of the

State ’s file becau se the de fendan t had not asked the court to inspect any

particular piece of evidence and there had been no proof that the State had

committed any Brady violations.         S imilarly, there is no proo f that the Sta te

violated its Brady duties in this case. In addition, rather than asking the trial court

to inspe ct a sp ecific piece of evidence, Appellant likewise asked the trial cour t to

                                           -15-
search the en tire file for a ny exc ulpato ry evide nce th at mig ht be in it. Under

these circumstances, the trial court did not abuse its discretion when it declined

to inspect the State’s file and seal the file for appellate review. This issue has no

merit.



  VI. TESTIMONY ABOUT THE EFFECTS OF METHAMPHETAMINE USE




         Appellant contends that the trial court erred when it allowed a witness for

the State to testify about the effec ts of metham phetam ine on the hum an body.

Howeve r, Appellant has failed to support this contention wit h any argument or

any citation to authority. Thus, Appellant has waived this issue. Tenn. Ct. Crim.

App. R . 10(b).



         Notwithstanding Appellant’s waiver of this issue, we conclude that even on

the merits, A ppellant is not e ntitled to relief. The record indicates that Doctor

Charles Harlan testified on direct examination that Glenn Wallace, Sr., had 0.2

micrograms of methamphetamine per milliliter in his blood at the time of his dea th

and that Glen n W allace, Jr., ha d 0.1 m icrogram s of me thamphetamine per

milliliter in his blood at the time of his death. Dr. Harlan then testified that

methamphetamine is som etime s use d to m ake a perso n mo re alert. Appellant

did not object to an y of this testimony.



         On cross-examination, Dr. Harlan stated that although he had never

treated anyone who had taken methamphetamine, he had conducted research

regarding metha mphe tamine ’s effects on the hum an bod y. Appellant’s counsel

then went on to question Dr. Harlan about the physical and mental effects that

                                         -16-
methamphetamine use could have on a person. When Dr. Harlan reiterated on

re-direct examination that methamphetamine is sometimes used to make a

person more a lert, Appellant’s counsel objected, claiming that Dr. Harlan was not

qualified to make that statem ent.



        W e conclude that even if the trial court erred when it allowed Dr. Harla n to

testify about the effects of methamphetamine use, it was harmless error because

Appellant was not prejudice d by it. See Tenn. R . App. P. 36(b). Inde ed, Dr.

Harlan had already given identical testimony w ithout objection.                          Furthe r,

Appe llant’s own e xpert w itness , Docto r Chris Blevin s, testifie d that p eople in

certain profes sions take m etham pheta mine in orde r to rem ain ale rt. Thu s, this

issue ha s no m erit.



                            VII. EXCLUSION OF EVIDENCE




        Appellant contends that the trial court erred when it ruled that he could not

introduce Glenn Wallace, Jr.’s boot and a gun that was allegedly found in that

boot into evidence.4 Once again, h owev er, Ap pellan t has fa iled to s uppo rt this

contention with any a rgume nt or any c itation to au thority. Thus, this issue is also

waived. Tenn. Ct. Crim. App. R. 10(b). In addition, despite the tria l court’s

statement that it wo uld allow Ap pellant to make on offer of proof, Appellant failed

to include the gun and the boot in the record and also failed to make any offer of

proof as to why they were relevant. Thus, this C ourt has no basis up on whic h to

review the trial court’s decision that this evidence should not be admitted



        4
          This boot and gun were apparently found in the home of Glenn Wallace, Jr., some time after he
was k illed.

                                                -17-
because it was simply not relevant to any issue in the case. “Absent the

necessa ry relevant m aterial in the re cord an appellate court cannot consider the

merits of an issue.” Ballard, 855 S.W.2d at 561 (citing Tenn. R. App. P. 24(b).

Appe llant ha s failed to prop erly pre serve this issu e for ap peal.



                                VIII. CONCLUSION




       Because we hold that the evidence was insuffic ient to s uppo rt App ellant’s

conviction for first degree murder, we modify his conviction to second degree

murder and we remand this case to the trial court for resentencing. In all other

respects, the judgment of the trial court is affirmed.



                                   ____________________________________
                                   JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
WILLIAM M. BARKER, SPECIAL JUDGE




                                          -18-
