         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    February 8, 2011 Session

    STATE OF TENNESSEE v. CANDANCE ORRAND BUSH and GARY W.
                             BUSH

                  Appeal from the Circuit Court for Rutherford County
                    Nos. F-61320A, F-61320B      Don R. Ash, Judge


                    No. M2010-00186-CCA-R3-CD - Filed July 18, 2011




Following a jury trial, the Defendants, Candance Orrand Bush and Gary W. Bush, were
convicted of first-degree murder, a Class X felony, for the 1982 killing of Lynn Orrand. See
Tenn. Code Ann. § 39-2-202 (1982). Both Defendants were sentenced to imprisonment for
life. In this appeal as of right, the Defendants raise the following issues: (1) Defendant
Orrand1 contends that the trial court erred in failing to disqualify District Attorney General
William C. Whitesell, Jr. and his office from prosecuting this case; (2) Defendant Bush
contends that the trial court erred by admitting into evidence a tape recording of a phone call
between Defendant Bush and Jason Riley; (3) both Defendants contend that the evidence was
insufficient to sustain their convictions because it was based upon the uncorroborated
testimony of an accomplice, Kevin Patterson; and (4) Defendant Bush contends that the trial
court erred by failing to select the alternate jurors “in plain view.” Following our review, we
conclude that these issues have no merit and affirm the judgments of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are
                                      Affirmed.

D. K ELLY T HOMAS, JR., J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and C AMILLE R. M CM ULLEN, JJ., joined.

John H. Norton, III and Liberti Anne Snider, Shelbyville, Tennessee, for the appellant,
Candance Orrand Bush.




1
Because both Defendants share the same last name we will refer to Defendant Candance Orrand Bush as
Defendant Orrand, her last name at the time of the offense, and Defendant Gary W. Bush as Defendant Bush.
John Galloway Mitchell, Jr. and John Galloway Mitchell, III, Murfreesboro, Tennessee, for
the appellant, Gary Bush.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; William C. Whitesell, Jr., District Attorney General; and J. Paul Newman, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                  FACTUAL BACKGROUND

                                  I. The Murder of Lynn Orrand

        In 1981, Defendant Orrand was married to the victim, Lynn Orrand. The Orrands and
their two children, Terry and Gary, lived in a house on Peachtree Street in Murfreesboro.
Lynn2 worked at North American Car while Defendant Orrand worked for a company called
Gemtop. During this time, Defendant Orrand and Defendant Bush were coworkers at
Gemtop. At some point in 1981, Defendant Orrand’s younger brother, Kevin Patterson,
came to live with the Orrands. Kevin had been kicked out of his parents house because his
girlfriend was pregnant. Kevin lived with the Orrands until he married his girlfriend and
moved in with her parents in December 1981.

        On November 18, 1981, Lynn was returning home from work some time around 2:00
a.m. when he entered an unlocked side door to his garage. As Lynn entered the garage, he
was struck in the head with “a tire tool” by an unknown assailant who then fled the scene.
Gary Orrand later testified that on the night of the attack he woke up to the sound of his
father, Lynn, calling for Defendant Orrand “to get the gun.” According to Gary, Defendant
Orrand went through the hallway crying, but “she wasn’t hysterical.” Defendant Orrand told
Gary to “lay back down, it would be okay.” Officer Ricky Keyt responded to the Orrand
residence on the night of the attack. Officer Keyt testified that he remembered Lynn was
bleeding from a cut under his right eye before he was transported to the emergency room.
Officer Keyt did not observe any signs that the intruder had broken into the garage. Officer
Keyt testified that witnesses described the assailant as a white male wearing a blue jacket
with fur trim. Officer Keyt spoke with Defendant Orrand about the assault, and she told him
that she had received two phone calls “from an unidentified person.” Defendant Orrand told
Officer Keyt that the caller had informed her “that her husband was selling drugs” and that



2
 Because the victim, Defendant Orrand, and many of the witnesses share the same last names we will refer
to some of the people involved in this case by their first names. No disrespect is intended.

                                                  -2-
“he had been seen going into a bar with two other women.” Lynn was subsequently
hospitalized, underwent surgery for his injuries, and missed two months of work.

        Prior to the attack, Lynn had been hunting a large buck in the woods near the home
of Defendant Orrand’s parents. According to Defendant Orrand’s mother, Norma Jean
Patterson, although Lynn had set up a tree stand in the woods, he would often hunt on a rock
near a deer trail where “[h]e could sit . . . [and] watch the deer.” Defendant Orrand told her
mother “not to tell anybody where [Lynn] was hunting at.” On January 14, 1982, Lynn spoke
with his coworker and friend, A.J. Mullins, about hunting for the buck that weekend. Later
that night, Mr. Mullins remembered that deer season had ended and told Lynn he would not
go hunting with him. Before they left work, Lynn told Mr. Mullins “that he changed his
mind also” and would not go hunting that weekend. In the early morning hours of January
15, 1982, Kevin’s girlfriend gave birth to their daughter Kimberly. Kevin spent that night
at the Orrand house because there had been a significant winter storm and their house was
near the hospital. That night, Defendant Orrand called her mother to tell her that Lynn was
coming over to their property “early the next morning” to hunt for the buck. Defendant
Orrand’s mother overheard Kevin and Lynn talking in the background. According to
Defendant Orrand’s mother, the only people who knew Lynn would be hunting the next
morning were Defendant Orrand, Kevin, and herself.

       On the morning of January 16, 1982, Gary Orrand woke up to hear Defendant Orrand
and Lynn “[t]alking about going and killing a deer and them kind of joking.” At
approximately 6:00 a.m., Defendant Orrand’s mother awoke to the sound of a truck pulling
into her driveway. Defendant Orrand’s mother looked out her window and saw Lynn’s white
pickup truck. Defendant Orrand’s mother then heard the truck door slam and went back to
sleep. Approximately 10 to 15 minutes later, Defendant Orrand’s mother woke up again
because her husband was getting out of bed. He told her that he had heard two gunshots and
figured “Lynn has shot him a deer” so he would fix some coffee and wait for Lynn to come
down to the house. Defendant Orrand’s mother and father waited for Lynn until
approximately 10:00 a.m. At that time, Defendant Orrand’s mother became worried about
Lynn and sent her husband and her youngest son, John Patterson, to the woods to check on
Lynn. John saw one set of footprints in the snow leading from Lynn’s truck and into the
woods. John and his father followed these footprints until they found Lynn’s body. John’s
father “rolled [Lynn’s body] over” and attempted to resuscitate him. John told his father to
stop because it was too late, Lynn was already dead. John then went back to the house to tell
his mother to call the police.

       Defendant Orrand’s mother went with several police officers to Defendant Orrand’s
house in order to tell her that Lynn had been killed. When told, Defendant Orrand “just
went, awwww” and grabbed her mother by the shoulder and shook her saying, “If you had

                                             -3-
called the ambulance he might not would have died.” Defendant Orrand’s mother thought
this was odd because Defendant Orrand had no reason to know that Lynn “had been laying
out there in the snow . . . dead for several hours.” Defendant Orrand’s mother testified that
Defendant Orrand “was acting a little weird,” seemed “nervous,” and “was and wasn’t” upset
when told about Lynn’s death. Defendant Orrand’s neighbor and friend, Lorraine Perry,
testified that Defendant Orrand seemed “very calm” and “[n]ervous more than upset” that
day. Ms. Perry did not remember Defendant Orrand crying that day and testified that she
“cried more” than Defendant Orrand did. The next day, Defendant Orrand went to view
Lynn’s body at the funeral home with Lynn’s twin brother, Glenn Orrand. According to
Glenn, Defendant Orrand began crying and said “I want him back now” repeatedly. Shortly
after the funeral, Kevin, his wife, and their child moved in with Defendant Orrand and her
children for approximately two or three months.

        Defendant Orrand retained the services of attorney Jeff Henry to assist her as
administrator of Lynn’s estate, filing for compensation from the Criminal Injuries
Compensation Fund (CICF), and filing for the benefits from Lynn’s life insurance policy.
At the time, Defendant Orrand and Lynn had five dollars in their joint checking account and
owned no real property. Defendant Orrand received $50,000 as the beneficiary of Lynn’s life
insurance policy and received $10,000 from the CICF. From 1984 until 1989, Defendant
Orrand, as Lynn’s widow, collected Social Security benefits totaling $21,453. Defendant
Orrand also collected Social Security benefits on behalf of Gary and Terry from 1984 until
1992 totaling $77,428. Defendant Orrand eventually bought a house “a few blocks down
from the one that she lived in” and paid for it in cash. In 1989, Defendant Orrand and
Defendant Bush married. As the years went on and the police investigation stalled,
Defendant Orrand never expressed any frustration over the fact that Lynn’s murder remained
unsolved. Defendant Orrand never talked to her children about Lynn’s death or sought
counseling for them. On one occasion, Terry found a newspaper article about Lynn’s
murder. Defendant Orrand took the article away from Terry before he could read it telling
him that it “was all lies.”

                    II. The Police Investigation and Forensic Evidence

       Chief Deputy Virgil Gammon of the Rutherford County Sheriff’s Department was the
lead investigator on the case in 1982. He received a call from the dispatcher about a shooting
at approximately 10:30 a.m. on January 16, 1982. When he arrived, Chief Gammon saw
Lynn’s body lying on the ground next to a rock that “looked to have had some damage” to
it. Lynn had been shot in the back near “the upper left shoulder.” There were no footprints
around the body but a search of the area revealed two sets of footprints near a tree
approximately eight to ten yards from Lynn’s body. There were no footprints between the
body and the tree. Both sets of footprints appeared to be from the same person and

                                             -4-
“appeared to be comings and goings.” Chief Gammon “believed that someone had been
standing or sitting or waiting” for Lynn by the tree. Chief Gammon followed the footprints
as they “circled around up [a] hill and back down the hill.” The footprints continued on
across Richland Road and back into the woods behind “three or four houses and came out”
at an old, abandoned church down the street. Chief Gammon believed that the footprints
leaving the scene were “at a faster pace or running” because of the stride and “distance
between the steps.” At one point along the footprints, the police discovered an area where
the snow was disturbed. Chief Gammon believed that the assailant had fallen and dropped
his gun. There were indentations in the snow that appeared to be where the assailant’s knee
touched the ground and where he placed his hand “trying to get up.” There was also an
indentation Chief Gammon believed was of a “double barrel shotgun.” At the abandoned
church, police found “tire marks” in the snow showing “where a vehicle had been at one
point.” The police were able to determine that the footprints came from “a hunting style
boot.”

        Michael Cawthorn, then the deputy coroner for Rutherford County, examined Lynn’s
body on January 16, 1982. Mr. Cawthorn observed “perforations” around the left elbow and
a “one inch hole in the mid back.” Mr. Cawthorn also observed “what appeared to be the
outline of . . . something metallic under the left pectoral muscle.” Mr. Cawthorn removed
“a shotgun slug” from Lynn’s body along with some “wadding” behind the slug. Mr.
Cawthorn opined that the murder weapon was either a 12 gauge or 16 gauge shotgun and
leaned “more toward a 12 gauge based on the amount of slug that was there.” No autopsy
was performed on the body in 1982. In 1982, Tennessee Bureau of Investigation (TBI)
Assistant Director Lanny Wilder examined the shotgun slug recovered from Lynn’s body.
Assistant Director Wilder concluded that the slug was fired from a 12 or 16 gauge shotgun,
but the slug’s weight “was closer to a 12.” Assistant Director Wilder concluded that the slug
was a “rifled slug,” which allowed the weapon to be fired with more accuracy. Assistant
Director Wilder also opined that it would not be unusual for shotgun wadding to penetrate
a body if the shot was fired from eight to ten yards away, especially if the wadding followed
behind the slug.

        Lynn’s body was exhumed in 2007 and an autopsy was performed by Dr. Adele
Lewis. The autopsy revealed a “large roundish shaped wound” and “multiple smaller
wounds surrounding that” on Lynn’s back. The slug traveled “through the ribs” and injured
the spleen, left lung, and heart. Dr. Lewis opined that these injuries “would almost certainly
be fatal within a matter of 30 seconds to a minute.” Dr. Lewis also found “several small
shotgun wounds” on the left arm, “right above [the] elbow.” Dr. Lewis recovered several
fragments from the body which she submitted to the TBI for testing. Dr. Lewis opined that
the victim’s wounds were consistent with having been “shot once with a slug . . . in the back”
and having been struck by fragments from a second shot that struck a nearby rock. TBI

                                             -5-
Special Agent Robert Royse examined the fragments recovered from Lynn’s body in 2007.
Special Agent Royse concluded that one of the fragments was a piece of rock but that the
other fragments were consistent with being from a deer slug.

                             III. Kevin Patterson’s Confession

        In March 2007, police received information from Lonnie Butcher, an inmate at the
Rutherford County jail, which implicated Kevin Patterson in Lynn’s death. On March 17,
2008, Kevin pled guilty to one count of second degree murder for shooting Lynn and is
currently serving a 25-year sentence. At the Defendants’ trial, Kevin testified that in the
autumn of 1981, he moved in with Defendant Orrand and Lynn because he “wasn’t getting
along very good” with his father. Kevin was 17 at the time and a senior in high school.
After moving in with the Orrands, Kevin learned that Defendant Orrand and Defendant Bush
were “lovers” and were having an affair together. Kevin never told Lynn about the affair
because he “didn’t want to get [his] sister in trouble.” Defendant Orrand wanted Kevin to
meet Defendant Bush and “see what [he] thought about [Defendant Bush].” Defendant
Orrand arranged for the two to meet at a local store. Kevin rode to the store on his bicycle
and found Defendant Bush at a pay phone talking to Defendant Orrand. Defendant Bush
introduced himself to Kevin and shook his hand. Kevin and Defendant Bush talked for
“[m]aybe two minutes” before Kevin left. After Kevin learned about the affair and met with
Defendant Bush, Defendant Orrand began to ask Kevin to kill Lynn. Kevin testified that
Defendant Orrand asked him on “several occasions” to kill Lynn and that she would often
do it while she was on the phone with Defendant Bush. However, Kevin testified that he
could not remember the first time Defendant Orrand asked him to kill Lynn because he “put
a lot of this stuff out of [his] mind because of what [he] did.” Defendant Orrand told Kevin
that she wanted Lynn killed because “she couldn’t divorce him because he wouldn’t leave
her alone.”

        After being asked to kill Lynn, Kevin approached his friend Jason Riley and “asked
him if he’d be interested in killing somebody for $5,000.” Kevin had previously asked Jackie
Young if he would kill someone for money, but Mr. Young had refused. Kevin decided to
ask Mr. Riley because he was “a roughneck” and “was known to go out to . . . [construction
sites] and steal[] shingles and supplies.” Kevin told Defendant Orrand, while she was on the
phone with Defendant Bush, that Mr. Riley had agreed. A meeting was setup between
Defendant Bush, Mr. Riley, and Kevin. Kevin testified that he could not remember where
the meeting took place but that he picked up Mr. Riley. Defendant Bush was waiting for
them in his black Ford pickup truck. All three men got into the truck, and Defendant Bush
showed Mr. Riley an envelope that had money in it. Kevin testified that he got out of the
truck while Mr. Riley and Defendant Bush discussed the details of the plan to kill Lynn. On
November 18, 1981, Kevin picked up Mr. Riley and drove him to Lynn’s house. Kevin

                                            -6-
testified that Mr. Riley waited in the garage for Lynn and that when Lynn came home, Mr.
Riley struck him over the head with “a bat or something another.” Defendant Orrand told
Kevin that the plan was for Mr. Riley to hit Lynn over the head and then drag his body to the
road, but Mr. Riley “didn’t knock [Lynn] out and [Mr. Riley] got scared and took off
running.” Kevin testified that he had been “riding around the neighborhood” for about 30
minutes waiting on Mr. Riley to kill Lynn when he picked Mr. Riley up “[d]own the road
from the house.” Mr. Riley was “scared to death” and told Kevin that he had hit Lynn but
“it didn’t knock him out.” Lynn had started to fight back so Mr. Riley “took off running.”
Kevin dropped Mr. Riley off back at his vehicle and never spoke to Mr. Riley about the
attack again.

        After the failed attempt to kill Lynn in the garage, Kevin agreed to kill Lynn himself.
Defendant Orrand and Defendant Bush devised a new plan. Defendant Orrand offered to let
Kevin, his then girlfriend, and their child move into her house and to pay him $5,000 in
exchange for killing Lynn. Kevin testified that the plan was for him to shoot Lynn while he
was hunting for the buck in the woods near Defendant Orrand’s parents’ home. Kevin
testified that Defendant Bush was to provide him with a shotgun and leave a station wagon
with “a pair of coveralls, a pair of gloves, and a hat” inside at the “national guard armory.”
Kevin would then drive the station wagon to an abandoned church near the woods. Kevin
testified that prior to the murder, he met with Defendant Bush at the Jackson Heights parking
lot, where Defendant Bush gave him a double barrel shotgun “wrapped up in a blanket.”
Defendant Bush also gave him two sets of shotgun shells, a set of “regular shotgun shells”
to use for target practice, and a set of deer slugs to use for the murder. Kevin put the shotgun
and the shells into the truck of the car, a Grand Prix owned by his girlfriend’s brother. Kevin
testified that his pregnant girlfriend was hidden, lying down in the seat, when Defendant
Bush gave him the gun. Kevin also testified that after he married his girlfriend in December
1981, he moved in with her parents and practiced shooting at “some old junk cars out there”
on his father-in-law’s property, firing the gun twice.

        On January 15, 1982, Kevin’s daughter was born. According to Kevin, he had a
conversation with Defendant Orrand about the murder that day. Defendant Orrand told
Kevin that Lynn would be hunting on their parents’ property the next morning and that after
the murder, Kevin should go back to the hospital “and get in the room with [his] wife and
make like [he had] been there the whole time.” Kevin also testified that Defendant Orrand
spoke with Defendant Bush about the murder over the phone that day. Kevin spent that night
at the Orrand house and woke up around 4:30 a.m. on January 16, 1982. Defendant Orrand
and Lynn were drinking coffee and talking when Kevin woke up. Kevin testified that Lynn
“was about to talk himself out of going [hunting] that morning” but that Defendant Orrand
“was pushing him to do it.” Kevin also testified that he remembered Defendant Orrand “at
some point in time” having a phone “conversation with [her] mother . . . letting her know that

                                              -7-
Lynn was coming out there that morning to go hunting.” Kevin left the Orrand house while
it was still dark outside and before Lynn had left to go hunting. Kevin drove his wife’s
brother’s car “to the national guard armory.” As planned, there was a station wagon parked
at the “armory” with the keys “under the floor mat.” Kevin testified that when he got to the
“armory,” there were no other cars in the parking lot and the lights were off in the building.
Kevin also testified that he had kept the shotgun in the trunk of his wife’s brother’s car since
he got it from Defendant Bush. Kevin took the shotgun out of the car and put it in the station
wagon. Kevin then put on the coveralls, gloves, and ski mask he found in the station wagon
and drove toward his parents’ house.

       Kevin parked the station wagon at the abandoned church on Richland Road. It was
cold and there was snow on the ground when he got to the church. Kevin “walked through
the woods down close to where [his] father’s property was at and then crossed the road and
went up in the woods.” Kevin walked to a tree where he crouched down and waited “for
about probably 30 minutes or so.” Kevin then heard Lynn’s truck pull up the driveway, Lynn
get out of the truck, and Lynn enter the woods. As Lynn approached Kevin, Kevin came out
from behind the tree and “was probably 30 feet from [Lynn]” when he fired a shot. Kevin
thought he missed Lynn so he fired a second shot. He knew he “didn’t miss the second time”
because he heard Lynn say, “You got me.” Kevin testified that the two shells he fired at
Lynn were both deer slugs. At the preliminary hearing in this case, Kevin testified that Lynn
was walking toward him and facing him when he fired. After hearing Lynn say “You got
me,” Kevin “took off running.” Kevin testified that he ran away from Lynn and the station
wagon “up in the woods a little bit” before “running back toward where the car was at,”
going the same way back to the car as he had come. As he was running, Kevin “tripped over
a log or a rock or something” and fell and dropped the gun in the snow. Kevin “reached
down and picked the gun up and took off running again.” When Kevin reached the station
wagon, he put the gun in the back seat and drove back to the “armory” still wearing the
coveralls, gloves, and ski mask. Kevin parked the station wagon at the “armory,” removed
the coveralls, gloves, and ski mask and left them along with the gun in the station wagon.
Kevin testified that he never asked and never learned what happened to the station wagon
and the other items.

        After leaving the station wagon at the “armory,” Kevin drove to the hospital. Kevin
testified that he “waited around out in the hallway until . . . [he] didn’t see any nurses around
the nurse station.” He then “snuck in [his] wife’s room without anybody seeing [him]” and
“made like [he had] been there a while” and “acted like [he] was asleep in the chair.”
Kevin’s wife was asleep when he entered her hospital room. After she woke up, Kevin told
her that he had killed Lynn. Kevin testified that she was upset, but he could not remember
what she said. Kevin also testified that she had previously known about the plan to kill Lynn
and that she helped him with his alibi. Kevin left the hospital and eventually went to

                                               -8-
Defendant Orrand’s house, where their mother and “a bunch of detectives” were as well.
Kevin was eventually questioned by the police, and he told them that he was at the hospital
with his wife at the time of the murder. A few days after the murder and after having spoken
with the police, Kevin realized that he “still had the same shoes on that [he] had on when [he]
committed the crime.” Kevin went behind a K-Mart and threw the shoes into a dumpster.
Kevin testified that he could not remember what type of shoes he had worn during the
murder. Kevin admitted that at the preliminary hearing, he had testified that he was wearing
a normal pair of “lace up shoes.” However, Kevin also testified that in the past he had owned
a pair of Herman boots, that he could have owned a pair at the time of the murder, and that
he considered Herman boots to be “lace up shoes.” Kevin, his wife, and their child then
moved in with Defendant Orrand. However, they did not live there long because Defendant
Orrand and his wife did not get along so Defendant Orrand “kicked [them] out.” Kevin
testified that he never received the $5,000 but only got “$100 here, $100 there.” Kevin also
testified that sometime after the murder, he told Lonnie Butcher that he had killed Lynn for
the Defendants.

         After moving out of Defendant Orrand’s house, Kevin “kind of stayed away” from
Defendant Orrand because he “just couldn’t look at them boys [Terry and Gary Orrand] in
the face anymore.” However, in 2007 Kevin was contacted by detectives who were
reopening the investigation. Kevin testified that after he was contacted by the police, he went
to the Defendants’ house and spoke to them. The Defendants told him to “stay calm and
keep [his] mouth shut and just stick with the story.” Kevin testified that over the course of
the investigation, he went over to the Defendants’ house “four or five” times and they would
meet in the garage. To avoid “listening devices and all this,” the Defendants and Kevin
would “whisper in real low voices while [they] [were] talking about it” and would sometimes
“write notes and pass them instead of even talking.” Kevin testified that they destroyed the
notes. During this time, the Defendants gave Kevin “about $1,000” to pay off his fines and
fees related to his probation. The Defendants gave Kevin the money on two occasions. The
first time Defendant Orrand gave him money, and the second time Defendant Bush gave him
money after “[h]e wiped all the money off removing any fingerprints on it.” Kevin
repeatedly denied to the police having any involvement in Lynn’s murder. However, after
meeting with an attorney, Kevin confessed to the police and agreed to testify and “tell the
truth” against the Defendants in exchange for a 25-year sentence. Kevin testified that he did
not want to kill Lynn, but Defendant Orrand “brainwashed [him] into killing [Lynn]” in
exchange for $5,000 and allowing Kevin and his family to move in with her. Kevin further
testified that he felt “terrible” about what he did and that he would not have pled guilty and
“volunteer[ed] to take 25 years if it wasn’t the truth.”

        At trial, Kevin admitted to having prior convictions for passing worthless checks and
theft of property valued less than $500. Kevin testified that he had a good relationship with

                                              -9-
Lynn and denied that he and Lynn had any conflicts or that Lynn did not want him to move
into the Orrands’ home. Kevin also denied that Lynn had kicked him out of the house prior
to his having moved in with his wife’s parents. On cross-examination, Kevin admitted that
at the preliminary hearing, he testified that when Defendant Bush gave him the shotgun, it
was not wrapped up and that he did not mention that his girlfriend was at the meeting. Kevin
also admitted that he told the police he was given the gun one week before the murder.
Kevin admitted on cross-examination that at the preliminary hearing, he testified that the
station wagon had been left at the “armory” for a week prior to the murder. However, Kevin
testified at trial that he could not remember when he got the shotgun or when the station
wagon was left at the “armory.” On cross-examination, Kevin testified that he finally
decided to kill Lynn after his daughter was born, then he testified that it was after his
wedding, and finally testified that he could not remember when he decided he would kill
Lynn for the Defendants. Kevin testified that he had trouble remembering the details because
it happened so long ago and because he “blocked a lot of this stuff out of [his] mind because
it was a very, very bad thing to do.” At trial, the Defendants established that the national
guard armory Kevin testified he picked up and dropped off the station wagon at was not built
until 1984. However, Kevin testified that the Defendants told him where to retrieve the
station wagon and gave him directions on how to get there. Kevin further testified that he
followed those directions. The State also established that there was another national guard
armory located in Murfreesboro prior to 1984.

                                IV. Corroborating Evidence

        Defendant Orrand’s mother, Gary Orrand, Kevin’s brother John, and Terry all testified
that Kevin had a good relationship with Lynn. However, Terry Orrand testified that
Defendant Orrand and Lynn had a “rocky” relationship and that he could remember the two
fighting “over finances.” Defendant Orrand told her friend and coworker, Barbara Poague,
that she was “not happy” with Lynn and that Lynn “hit her.” Defendant Orrand also told Ms.
Poague that she would not divorce Lynn because “Lynn would not leave her alone and he
would take her boys away from her.” Prior to his death, Lynn spoke with his brother Glenn
about his life insurance policy. Lynn told Glenn that he was thinking about dropping his life
insurance. Glenn asked Lynn if he had dropped his insurance a few weeks later, and Lynn
said that he had not dropped it but had actually increased the amount of coverage. When
Glenn asked Lynn about his life insurance, Defendant Orrand “grinned” and said, “Lynn, if
something was to happen to you, if I would have you killed, I’d be a rich woman.” Lynn had
also spoken to his friend and coworker, Mr. Mullins, about his life insurance policy. Lynn
told Mr. Mullins that his wife was the sole beneficiary of the policy. Mr. Mullins urged Lynn
to make his children beneficiaries as well. Mr. Mullins testified that Lynn did not get the
chance to change his policy before he died.



                                            -10-
        Several former Gemtop employees testified that it was common knowledge at Gemtop
that Defendant Orrand was having an affair with Defendant Bush around the time of Lynn’s
murder. Ms. Poague confronted Defendant Bush about whether he had anything to do with
the attack on Lynn in November 1981. Defendant Bush’s ex-wife, Patricia Conner, testified
that she met Defendant Orrand in October of 1981 or 1982 and that she “sort of suspected
[the Defendants] were going together.” Defendant Bush and Ms. Conner divorced on August
29, 1983. Defendant Orrand’s friend and neighbor, Ms. Perry, testified that she saw
Defendant Bush’s black Ford pickup truck at the Orrands home a few months after Lynn’s
murder. Defendant Orrand’s niece, Christy Rawls, testified that she stayed at Defendant
Orrand’s house during the summer of 1982 and that Defendant Bush would come over to the
house. Ms. Rawls testified that she saw Defendant Bush kiss Defendant Orrand and that the
two “appeared to be a couple.” Gary testified that he recalled seeing Defendant Bush kiss
Defendant Orrand in 1983. However, when the Defendants spoke to Detective Jim Tramel
of the Rutherford County Sheriff’s Department, they denied having an affair and told
Detective Tramel that they did not start dating until around 1985 or 1986.

        Jackie Young testified that he was friends with Kevin in high school and that in 1981
Kevin asked him if he would “kill somebody for $10,000.” When Mr. Young said no, Kevin
told him that he was just joking. Mr. Young testified that he thought Kevin was serious
before Kevin told him he was joking. Jason Riley testified that one night in 1981, he was in
the parking lot of Jackson Heights when a black pickup truck with Kevin and another man
inside pulled up. Mr. Riley had “hung out pretty good” with Kevin in high school and
continued to “hang out” with him even after Mr. Riley had dropped out of high school. After
the pickup truck pulled up, Kevin “hollered” for Mr. Riley to get in the truck. Mr. Riley
testified that when he got into the truck, Kevin introduced the driver as “his sister’s
boyfriend.” The driver pulled an envelope with $5,000 out of his jacket and handed it to
Kevin. Mr. Riley testified that at the time, Kevin did not work and would not have had
access to $5,000. Kevin placed the money on the dash and told Mr. Riley “this right here
could be yours” if Mr. Riley would kill Kevin’s brother-in-law. Kevin explained that his
sister wanted her husband dead because “[h]e was abusive” and because the Defendants
wanted to marry. Mr. Riley testified that he refused to kill Lynn, but he agreed to “knock
[Lynn] out and drag him to the street,” where Kevin and Defendant Bush would “take out
the trash.”

        On November 18, 1981, Mr. Riley met Kevin in the Hardee’s parking lot. Kevin was
in a black Ford pickup truck when he held up the envelope of money and said, “This right
here could be yours.” Mr. Riley testified that he could not remember if there was anyone else
with Kevin in the pickup truck. Kevin had previously driven him by the Orrand house.
However, that night, Mr. Riley took his own car because he does not “like being stranded
nowheres.” Mr. Riley testified that he could not remember where he parked his car, but he

                                            -11-
parked it “out of the way where nobody could see it.” Mr. Riley walked about a block to
Lynn’s house and entered the garage through an unlocked side door. Terry Orrand testified
that the side door in the garage was always unlocked and that Lynn would always come in
through that door. Mr. Riley brought a flashlight and a “tire tool” into the garage with him.
Mr. Riley testified that the flashlight was to signal “two people in the truck,” who were
waiting at the abandoned church. Mr. Riley hid behind the door he had entered and waited
until he hear Lynn park his car in the driveway, get out, and walk toward the side door of the
garage. After Lynn walked through the door, Mr. Riley hit him in the head with the “tire
tool.” The blow did not knock Lynn out, and Mr. Riley ran out of the garage after Lynn
either “pulled a gun or said he had a gun.” Mr. Riley testified that he ran through the front
yard, back to his car, and drove away. Mr. Riley also testified that he wore a green army
jacket with a hood which had “fur around it.” However, Mr. Riley later testified that he did
not remember the hood of his jacket being lined with fur. Mr. Riley testified that he attacked
Lynn because he was “young” and “dumb” and that after the attack Kevin “just seemed like
he disappeared.”

        Kevin’s ex-wife, Joyce Hudson, testified that in 1981, Kevin told her that the
Defendants were having an affair. Kevin also told her that Defendant Orrand was “looking
for somebody to kill her husband.” Ms. Hudson testified that she told Kevin “to stay away
from [Defendant Orrand].” Kevin also told Ms. Hudson that the Defendants had “hired
somebody to hit [Lynn] in the head and it didn’t kill him.” One day in 1981, Kevin asked
Ms. Hudson to go with him to Jackson Heights to “get some pot.” Kevin told her that “he
wanted [her] to get down in the car because he didn’t want this guy to see [her].” Ms.
Hudson testified that even though she was pregnant at the time, it was not a problem for her
to lie down in the seat because she “never showed” while she was pregnant. At one point,
Ms. Hudson “peeked” out the window and saw a black Ford pickup truck parked next to the
car. Ms. Hudson then saw Kevin put something in the trunk of the car that “was covered
with a piece of cloth” and “was long.” Ms. Hudson testified that it “looked like a gun.”
However, Ms. Hudson admitted on cross-examination that she originally told the police she
thought Kevin had placed drugs in the trunk. After Kevin got back in the car, Ms. Hudson
sat up. Kevin told her to get back down when the black Ford pickup truck drove by them.
Ms. Hudson saw a man driving the truck and asked Kevin who it was. Kevin told her that
it was Defendant Bush and that he was Defendant Orrand’s boyfriend. Ms. Hudson testified
that to her knowledge, Kevin did not own a gun at the time. Ms. Hudson also testified that
she later saw Defendant Bush again in the same black truck he drove the night of the
meeting. Defendant Bush’s ex-wife, Ms. Conner, testified that Defendant Bush owned
coveralls and “a long shotgun” at that time.

      Ms. Hudson testified that after Kevin moved in with her parents, Defendant Orrand
would call to speak to Kevin “a lot.” The day after giving birth to her daughter, Kevin came

                                             -12-
into Ms. Hudson’s hospital room and told her that he had shot Lynn. Kevin told her that he
had parked at the abandoned church on Richland Road and “hiked up in the woods and
waited on [Lynn].” Kevin told her not to tell anyone about it because Defendant Orrand was
“crazy enough to have [Ms. Hudson] killed.” Ms. Hudson testified that she did not believe
that Kevin would kill Lynn because “[h]e didn’t tell me he was going to do it.” Ms. Hudson
denied having any role in Lynn’s murder and denied that she agreed to help Kevin with his
alibi. Ms. Hudson testified that after the murder, she, Kevin, and their child moved in with
Defendant Orrand for about two months. When Defendant Orrand “kicked them out,” Kevin
started calling her names and said that Defendant Orrand “wanted [Lynn] dead” and that she
“wanted [Kevin] to kill him.” Sometime after that, Kevin came to Ms. Hudson and told her
they were going to have to leave town because he had told his “friends” that he had killed
Lynn. Ms. Hudson testified that she was afraid to divorce Kevin and that he had threatened
to kill her on “a couple of occasions.” Ms. Hudson also testified that she was uncooperative
with the police at first because she was afraid Defendant Orrand would have her killed.

        John Patterson testified that when he found Lynn’s body, he saw a set of foot prints
that were similar to the footprints his boots left. John was wearing Herman boots that day
and was so worried about the footprints that he “stomped them to cover them up.” However,
John noticed that the footprints were bigger than his. John testified that at the time of the
murder, Kevin also owned a pair of Herman boots. Chief Gammon testified that Kevin
became a suspect because he became uncooperative with the investigators and because his
alibi was called into question. According to Chief Gammon, the community services
coordinator with the Sheriff’s Department, Don Castleman, had seen Kevin either reentering
or leaving the hospital the morning of the murder. Defendant Orrand’s neighbor, Ms. Perry,
testified that on the day of the murder, Defendant Orrand was adamant that Kevin not be
interviewed by the police because he “had been through enough already” that day. Mr. Riley
testified that after the murder, he saw either John or Kevin in a store and asked how Lynn
was. According to Mr. Riley, he was “all giggle” and said, “He died. Hunting accident.”
Ms. Perry testified that after Lynn’s death, Defendant Orrand would blame Lynn anytime
something bad happened to her. Ms. Perry also testified that in 1982 or 1983, Defendant
Orrand asked if she could leave her car with Ms. Perry while Defendant Orrand and
Defendant Bush went on a vacation to Florida with their children. Ms. Perry asked
Defendant Orrand if she was going to get married, and Defendant Orrand “laughed and said,
no, that she would lose her [S]ocial [S]ecurity.”

       When the investigation was reopened in 2007, the police asked Mr. Riley to make a
controlled phone call to Kevin. The phone call was recorded and monitored by the police.
Mr. Riley told Kevin that the police were asking him questions about the murder. Kevin told
Mr. Riley that he “didn’t have nothing to do with the f-----g s--t.” When Mr. Riley brought
up the attack on Lynn in the garage, Kevin said that he did not “even know what you’re

                                            -13-
talking about now,” that he did not “know nothing about nothing,” and that would “be the
last word I’ll say when I die.” Kevin testified that he denied everything to Mr. Riley because
he assumed his phone was taped. A day after making the controlled call to Kevin, Mr. Riley
received a telephone call at work. The caller did not identify himself, and Mr. Riley did not
recognize the voice. The caller said that he knew Mr. Riley had an upcoming interview with
the police and told him “the best thing to do is stay calm, stay cool” and “[d]on’t tell them
nothing.” Mr. Riley informed Detective Tramel about the phone call and what the caller had
said. Detective Tramel set up another controlled call, provided Mr. Riley with two phone
numbers, and told Mr. Riley that they were for Defendant Bush’s home and cell phones. Mr.
Riley called the home number first and got no answer. Mr. Riley then called Defendant
Bush’s cell phone and spoke to a man. The phone call was recorded, and Mr. Riley testified
that the recording played at trial was the phone call he made to the number Detective Tramel
provided him.

        At the beginning of the phone conversation, Mr. Riley asked for “Gary.” Defendant
Bush responded “Yeah.” Mr. Riley told Defendant Bush that he was in his truck and calling
him because the police just left his workplace after interviewing him. Defendant Bush told
Mr. Riley that he did not “need to talk on that phone” because the police “can pick them up
on a scanner.” After reassuring Defendant Bush that the police were not close enough to
monitor the call, Mr. Riley asked Defendant Bush “what do you want to do.” Defendant
Bush responded that he did not “want to do nothing” and that Mr. Riley needed to “[j]ust stay
cool like I told you.” Defendant Bush told Mr. Riley that the police were “gonna aggravate
you for a while” and that Mr. Riley “better do” what he told him. Mr. Riley testified that he
recognized Defendant Bush’s voice as the voice of the earlier caller and that he “knowed
right off the bat who it was.” However, Mr. Riley testified that he “couldn’t put a name to”
the voice but that he could identify the voice as the same person who called him at work.
After listening to a portion of the recording, Detective Tramel, Terry Orrand, and Ms. Rawls
were all able to identify Defendant Bush’s voice as the person speaking with Mr. Riley.
Detective Tramel also testified that he was present during the recording of the phone
conversation and that the voices belonged to Mr. Riley and Defendant Bush. A day after the
controlled call, Mr. Riley got another phone call from Defendant Bush in which Defendant
Bush asked how the police interview went and told Mr. Riley to “lose his phone number” and
“don’t say nothing to nobody.”

      Kristi Dunnan testified that she was Kevin’s probation officer and that in the summer
of 2007 Kevin was delinquent on his probation fees and fines. However, in August 2007
Kevin was able to pay off his fees in two separate payments totaling $1,052. Jeff Witas, the
Defendants’ neighbor, testified that in 2007, Defendant Bush asked him if he could get
Kevin a job. Defendant Bush had the two meet in his garage because Mr. Witas wanted to
meet Kevin to see what his qualifications were. Gary Orrand testified that Defendant Orrand

                                             -14-
does not like to hear his son’s middle name, Lynn. Gary also testified that Defendant Orrand
told him she wanted to contest the exhumation of Lynn’s body. However, she ultimately
decided not to contest the exhumation. Terry Orrand testified that he spoke with his mother
after he found out that she had hired an attorney to contest the exhumation. According to
Terry, when he spoke with Defendant Orrand about the exhumation she “turned pale” and
“looked more frightened than she did upset.” Terry also testified that he had never seen
Defendant Orrand cry over Lynn’s death until the trial started. Terry admitted on cross-
examination that he has sued Defendant Orrand for $5 million in a wrongful death action.
Based upon the foregoing evidence, the jury convicted the Defendants of first-degree murder.
They were sentenced to life imprisonment.

                                         ANALYSIS

         I. Disqualification of District Attorney General Whitesell and His Office

        Defendant Orrand contends that the trial court erred by failing to disqualify District
Attorney General William C. Whitesell, Jr. and his office from prosecuting this case.
Defendant Orrand argues that General Whitesell’s participation in the investigation into her
claim for compensation from the CICF made him “a potential witness for the defense in this
case,” thereby disqualifying him from prosecuting this case. Defendant Orrand also argues
that General Whitesell’s participation at the hearing on the CICF claim and his signature on
the order granting the claim made General Whitesell an “attorney ad hoc” creating an
attorney-client relationship between the two and a conflict of interest for General Whitesell,
or at the very least, an appearance of impropriety in his participation in the prosecution. The
State responds that the trial court properly denied Defendant Orrand’s motion because
General Whitesell testified that he could not recall speaking to Defendant Orrand and that
he signed the order “[b]ased on the information at that time.” The State further responds that
General Whitesell testified that he had no relevant, exculpatory testimony he could offer at
trial and that General Whitesell never felt as if he had advocated on behalf of Defendant
Orrand.

        Defendant Orrand filed a claim for compensation from the CICF in the Rutherford
County Circuit Court on January 14, 1983. A hearing was held on December 18, 1984, and
no transcript of the hearing exists. The Circuit Court entered an order granting the claim in
1985. The Order listed several findings of fact which included the following: “(e) The
Claimants did not contribute to the crime in any respect; (f) The identity of the offender in
this case is unknown; [and] (g) Claimants have fully cooperated with the police and District
Attorney General in the investigation of this crime . . . .” On the last page of the order, under
the heading “Approved for Entry,” are the signatures of Defendant Orrand’s counsel, Jeff
Henry, and then Assistant District Attorney General Whitesell.

                                              -15-
       Prior to trial, the Defendants filed a motion to disqualify District Attorney General
William C. Whitesell, Jr. and his office from prosecuting this case. The Defendants’
argument was based upon General Whitesell’s involvement in Defendant Orrand’s claim for
compensation from the CICF. The Defendants contended that General Whitesell was a
necessary exculpatory witness. The Defendants alternatively contended that General
Whitesell’s approval of the order made him an “attorney ad hoc” for Defendant Orrand,
which created an attorney-client relationship between the two and made his prosecution of
her a conflict of interest.

       The trial court held a hearing on this matter on August 25, 2008. At the hearing
General Whitesell testified that he was not actively involved in the investigation of Lynn’s
murder in 1982. General Whitesell admitted that “[i]n the general sense,” he conducted an
investigation regarding Defendant Orrand’s claim but that he did not remember the hearing
or what he may or may not have said to the Circuit Court. General Whitesell also testified
that he did not remember ever speaking with Defendant Orrand about her claim. General
Whitesell testified that “[b]ased on the information at that time,” the District Attorney
General’s office had “no opposition to [Defendant Orrand’s] claim.” General Whitesell also
repeatedly testified that he felt Defendant Orrand was represented by Mr. Henry in the
compensation matter and that he did not feel like he was “advocating” for Defendant Orrand.
General Whitesell testified that he had no relevant or exculpatory testimony to give in this
case. The Defendants also presented the testimony of Detective Mark Dinardo, who said that
he told a witness that “General Whitesell recovered” money from the CICF for Defendant
Orrand. The Defendants contended that Detective Dinardo’s statement was proof that
General Whitesell was advocating on behalf of Defendant Orrand or at least showed that
General Whitesell’s participation in the CICF claim investigation created the appearance of
impropriety. Following the hearing, the trial court entered a written order denying the
Defendants’ motion and concluding that General Whitesell had no exculpatory testimony
regarding this case and had not been an “attorney ad hoc” for Defendant Orrand.

       A trial court’s ruling on the disqualification of a prosecutor or the entire office of the
District Attorney General is reviewed under an abuse of discretion standard. State v.
Culbreath, 30 S.W.3d 309, 313 (Tenn. 2000). In determining whether disqualification of a
prosecutor is required, courts must ask the following three questions:

       (1) Do the circumstances of the defendant’s case establish an actual conflict
       of interest that requires the disqualification of a prosecutor? (2) Do the
       circumstances of the defendant’s case create an appearance of impropriety that
       requires the disqualification of a prosecutor? (3) If either theory requires the
       disqualification of a prosecutor, is the entire District Attorney General’s office
       likewise disqualified?

                                              -16-
State v. Coulter, 67 S.W.3d 3, 29 (Tenn. Crim. App. 2001) (citing Culbreath, 30 S.W.3d at
312-13). When a defendant seeks to disqualify a prosecutor on the basis that the prosecutor
is a potential witness a trial, the determination will depend “upon the value of their potential
testimony.” State v. Baker, 931 S.W.2d 232, 237 (Tenn. Crim. App. 1996).

       The function of the office of the District Attorney General “is to prosecute criminal
offenses in his or her circuit or district.” Culbreath, 30 S.W.3d at 313; see also Tenn. Code
Ann. § 8-7-103(1) (providing that each District Attorney General shall prosecute “all
violations of the state criminal statutes and perform all prosecutorial functions attendant
thereto”). As part of this function, “the District Attorney General has the inherent duty under
the law of Tennessee to investigate all infractions of the public peace and acts which are
against the peace and dignity of the [s]tate.” State v. Elrod, 721 S.W.2d 820, 822 (Tenn.
Crim. App. 1986). Accordingly, a prosecutor’s participation in the investigation of a case
alone will not disqualify the prosecutor from subsequent participation in the prosecution of
the case. See Id. at 822; State v. Randy Lee Ownby, No. M2007-01367-CCA-R3-CD, 2009
WL 112582, *9-10 (Tenn. Crim. App. Jan. 14, 2009). Additionally, as Defendant Orrand
pointed out in her brief, the version of the Criminal Injuries Compensation Act in effect at
the time of her claim mandated that the District Attorney General’s offices investigate claims
for compensation and report their findings to the court. See Tenn. Code Ann. § 29-13-109(a)
(1983).

        General Whitesell testified at the motion hearing that the findings of fact in the Circuit
Court’s order were “[b]ased on the information at that time” and that he had no relevant,
exculpatory testimony to give regarding this case. General Whitesell also testified that he
could not recall ever speaking to Defendant Orrand about her claim and that his memory
regarding the investigation into the claim was vague at best. Defendant Orrand argues on
appeal that despite General Whitesell’s testimony to the contrary, his participation in the
investigation of her claim affected her decision not to testify at trial because her “defense
counsel had no reasonable way of learning exactly what [she] may or may not have told
General Whitesell during” the investigation. However, Defendant Orrand’s argument
ignores the fact that she would have been present for any conversation she had with General
Whitesell and that she would be privy to any information she provided General Whitesell.
There is nothing in the record to suggest that the investigation into Defendant Orrand’s CICF
claim produced any exculpatory evidence that would have been admissible at trial. To
require General Whitesell’s disqualification based solely upon his participation in the
investigation of this case would produce a profound chilling effect on one of the essential
duties of the office of prosecutor. Accordingly, we conclude that the trial court did not abuse
its discretion in denying Defendant Orrand’s motion to disqualify General Whitesell based
upon the fact that he was a potential witness at trial.



                                              -17-
        Defendant Orrand also contends that General Whitesell’s participation at the hearing
on the CICF claim and his signature on the order granting the claim created an attorney-
client relationship between the two or an appearance of impropriety. Defendant Orrand has
cited no authority regarding her theory that General Whitesell was serving as an “attorney
ad hoc” on her behalf. Furthermore, Defendant Orrand was represented by her own private
counsel, Jeff Henry, who drafted and filed the claim, represented her at the hearing on the
matter, and signed the order on her behalf. As discussed above, General Whitesell had a
statutory duty to investigate Defendant Orrand’s claims and to present his findings to the
Circuit Court. General Whitesell in no way represented Defendant Orrand in her CICF
claim. As the trial court stated, General Whitesell merely made “a stipulation resulting in the
advancement of an adverse party’s interests.” Taken to its logical conclusion, Defendant
Orrand’s argument would mean that an attorney-client relationship would be created any time
a prosecutor agreed to a plea bargain or signed an order dismissing an indictment against a
defendant. For this court to agree with Defendant Orrand’s argument, we would have to
stretch the definition of an attorney-client relationship beyond recognition. Accordingly, we
conclude that this issue is without merit.

II. Admission of Recorded Phone Conversation Between Defendant Bush and Jason Riley

       Defendant Bush contends that the trial court erred by admitting into evidence a tape
recording of a phone conversation between Defendant Bush and Jason Riley. Defendant
Bush argues that the State did not provide any “records from the phone company to show that
the number” called belonged to Defendant Bush. Defendant Bush further argues that Mr.
Riley “was unable to identify” the other voice on the recording “with certainty until after the
detectives told him who the speaker on the other end of the line was;” therefore, he could not
authenticate the phone call or that it was Defendant Bush’s voice on the recording.
Defendant Bush also contends that the trial court erred by allowing the jury to view a
transcript of the recording entitled “Phone call between Gary and Jason” and which labeled
the the participants as “Gary” and “Jason.” Defendant Bush argues that the transcript was
“unreasonably suggestive as to the identity of the participants in the conversation.” The State
responds that the trial court acted within its discretion in admitting the tape recording into
evidence. The State argues that Mr. Riley properly authenticated the recording.

       Trial courts are given broad discretion in ruling upon the admissibility of evidence and
such rulings will not be overturned absent an abuse of that discretion. State v. Dellinger, 79
S.W.3d 458, 487 (Tenn. 2002). We begin by noting that the admissibility of the phone
conversation at issue involves two separate but related issues: the authentication of
Defendant Bush’s voice and the authentication of the tape recording. Authentication of a
voice may be made by “[i]dentification of a voice, whether heard firsthand or through
mechanical or electronic transmission or recording, by opinion based upon hearing the voice

                                             -18-
at any time under circumstances connecting it with the alleged speaker.” Tenn. R. Evid.
901(b)(5). This court has previously ruled that “[f]or authentication purposes, voice
identification by a witness need not be certain; it is sufficient if the witness thinks he can
identify the voice and express his opinion.” Stroup v. State, 552 S.W.2d 418, 420 (Tenn.
Crim. App. 1977). Regarding the authentication of a tape recording, our supreme court has
held that

       tape recordings and compared transcripts are admissible and may be presented
       in evidence by any witness who was present during their recording or who
       monitored the conversations, if he was so situated and circumstanced that he
       was in a position to identify the declarant with certainty, and provided his
       testimony in whole, or in part, comports with other rules of evidence.

State v. Jones, 598 S.W.2d 209, 223 (Tenn. 1980), superseded by statute on other grounds
as stated in State v. Shropshire, 874 S.W.2d 634, 638 (Tenn. Crim. App. 1993).

        At trial, Mr. Riley testified that he was present during the conversation and that the
tape was an accurate reproduction of the telephone conversation. Mr. Riley further testified
that he recognized the voice as the same person who had called him earlier and told him to
“stay cool.” Mr. Riley also testified that he had been given Defendant Bush’s cell phone
number by the police, that he asked for Gary, that the other person responded “Yeah,” and
that he believed the voice belonged to Defendant Bush. Defendant Bush’s argument that Mr.
Riley cannot authenticate the tape recording because he was “unable to identify” Defendant
Bush’s voice at the time of the conversation is misplaced. Under Tennessee law, a witness
need only have “adequate familiarity” with the speaker’s voice at the time testimony is given
in order to opine as to the identity of the speaker and familiarity “can be gained in a relatively
short period of time, and as the result of conversations occurring before or after the
conversation that was identified.” N EIL P. C OHEN, ET AL., T ENNESSEE L AW OF E VIDENCE ,
§ 9.01[7], at 9-11 (5th ed. 2005). In addition to Mr. Riley’s testimony, Detective Tramel
testified that he was present with Mr. Riley during the conversation and that he monitored
the conversation. Detective Tramel also identified the voices on the tape recording as
belonging to Mr. Riley and Defendant Bush. In addition to the testimony of Detective
Tramel and Mr. Riley, two other witnesses, Terry Orrand and Christy Rawls, identified
Defendant Bush as the person speaking with Mr. Riley. Accordingly, we conclude that the
voice and the tape recording were properly authenticated and that the trial court did not abuse
its discretion in admitting the recording into evidence.

       At the hearing on the motion for new trial, counsel for Defendant Orrand addressed
the court regarding this issue and stated, “First of all, let me apologize to the [trial court]
because we objected strenuously . . . [a]nd our subsequent research tells us quite frankly I

                                              -19-
believe the [trial court] was right.” Defendant Orrand’s counsel said that he believed the
recording was properly authenticated but that he was not withdrawing his objection, he just
“believe[d] the [trial court] was correct in its ruling.” Counsel for Defendant Bush later
acquiesced to Defendant Orrand’s counsel’s statements by saying “I have no idea what I’m
doing here since [Defendant Orrand’s counsel] has eloquently covered everything that was
in our motion.” We are troubled that Defendant Bush’s counsel would raise this issue on
appeal and argue that Mr. Riley’s authentication of the tape recording was suspect when the
recording was also authenticated by Detective Tramel, two other witnesses identified
Defendant Bush’s voice on the tape, and counsel had acquiesced to the statements of defense
counsel for Defendant Orrand that the trial court had properly admitted the tape into
evidence.

        Regarding the transcript, “[i]t is well-settled in Tennessee that a transcript of a tape
may be given to a jury where the jury is instructed that the tape, and not the transcript is the
actual evidence.” State v. Barnard, 899 S.W.2d 617, 623-24 (Tenn. Crim. App. 1994). Here,
the transcript was not entered into evidence and merely served as a listening aid for the jury.
Importantly, the trial court instructed the jury that the tape, not the transcript, was the
evidence; that the transcript was “only an aid for you;” and that where the transcript listed
names, “that doesn’t necessarily mean that’s who that is.” Similar use of transcripts with the
purported speakers names in the margins have been upheld by other jurisdictions. See United
States v. Keck, 773 F.2d 759, 766 (7th Cir. 1985); Grimes v. State, 633 N.E.2d 262, 264 (Ind.
Ct. App. 1994). Additionally, at the beginning of the conversation, Mr. Riley asked for Gary
and the speaker identified himself as Gary by responding “Yeah.” Accordingly, we conclude
that this issue has no merit.

                               III. Sufficiency of the Evidence

       Both Defendants contend that the evidence was insufficient to sustain their
convictions because it was based upon the uncorroborated testimony of an accomplice, Kevin
Patterson. Defendant Orrand contends that absent the testimony of Ms. Hudson, there was
no evidence corroborating Kevin’s testimony. Defendant Orrand argues that Ms. Hudson’s
testimony must be ignored because she was also an accomplice to the murder. Defendant
Orrand joins Defendant Bush in his argument that “there was no corroboration of the
testimony of accomplice Kevin Patterson at trial.” Both Defendants argue that the State,
through the remainder of its witnesses and evidence, only presented evidence regarding “the
nature of the relationship between” the Defendants and that any evidence regarding the
Defendants’ motive for the crime “does not corroborate” Kevin’s testimony. The State
responds that multiple witnesses and pieces of evidence corroborated Kevin’s testimony and
that Kevin’s testimony coupled with the corroborative evidence was sufficient to sustain the
Defendants’ convictions.

                                              -20-
        An appellate court’s standard of review when the defendant questions the sufficiency
of the evidence on appeal is “whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). This
court does not reweigh the evidence; rather, it presumes that the jury has resolved all
conflicts in the testimony and drawn all reasonable inferences from the evidence in favor of
the state. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in
testimony, and the weight and value to be given to evidence were resolved by the jury. See
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A guilty verdict “removes the
presumption of innocence and replaces it with a presumption of guilt, and [on appeal] the
defendant has the burden of illustrating why the evidence is insufficient to support the jury’s
verdict.” Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “This [standard] applies
to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of
[both] direct and circumstantial evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93
(Tenn. Crim. App. 1999).

         The Defendants do not contend that the State failed to produce sufficient evidence to
fulfill all of the elements of the offense of first degree murder; instead, they contend that their
convictions are based upon the uncorroborated testimony of an accomplice. It is well-settled
that in Tennessee, “a conviction may not be based solely upon the uncorroborated testimony
of an accomplice.” State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001). An accomplice is one
“who knowingly, voluntarily and with common intent unites with the principal offender[s]
in the commission of the crime.” State v. Ballinger, 93 S.W.3d 881, 887 (Tenn. Crim. App.
2001). When “a witness denies involvement in the crime, the question of whether he or she
is an accomplice is one of fact to be submitted to the jury with proper instructions from the
court on how to consider such testimony.” Id. at 887-88. The only witness listed as an
accomplice in the jury instructions was Kevin Patterson. By failing to request a proper jury
instruction, the Defendants have waived the issue of whether any other witnesses, including
Ms. Hudson, were also accomplices. See State v. Anderson, 985 S.W.2d 9, 18 (Tenn. Crim.
App. 1997).

        Our supreme court has described what is required to establish sufficient corroboration
as follows:

       [T]here must be some fact testified to, entirely independent of the
       accomplice’s testimony, which, taken by itself, leads to the inference, not only
       that a crime has been committed, but also that the defendant is implicated in
       it; and this independent corroborative testimony must also include some fact
       establishing the defendant’s identity. This corroborative evidence may be

                                               -21-
       direct or entirely circumstantial, and it need not be adequate, in and of itself,
       to support a conviction; it is sufficient to meet the requirements of the rule if
       it fairly and legitimately tends to connect the defendant with the commission
       of the crime charged. It is not necessary that the corroboration extend to every
       part of the accomplice’s evidence.

Shaw, 37 S.W.3d at 903 (quoting State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994)). The
corroborative evidence need not be “overwhelming.” Id. In fact, “[o]nly slight
circumstances are required to corroborate an accomplice’s testimony.” State v. Griffis, 964
S.W.2d 577, 589 (Tenn. Crim. App. 1997). However, “the corroboration must include some
fact establishing the identity of the defendant as a criminal actor.” State v. Boxley, 76
S.W.3d 381, 387 (Tenn. Crim. App. 2001) (citing Shaw, 37 S.W.3d at 903). Whether there
is sufficient corroboration is a determination for the jury. Shaw, 37 S.W.3d at 903. Upon
review, an appellate court should “consider the combined force of all of the non-accomplice
evidence that tends to connect the accused to the offense.” Smith v. State, 332 S.W.3d 425,
442 (Tex. Crim. App. 2011).

        Despite the Defendants’ contentions, evidence of motive may be used to corroborate
an accomplice’s testimony and establish the defendant’s identity if it is considered in
connection with other evidence tending to connect the defendant to the crime. See State v.
Gaylor, 862 S.W.2d 546, 552-53 (Tenn. Crim. App. 1992) (Wade, J.); see also Smith, 332
S.W.3d at 442-447 (concluding that evidence of motive along with evidence of opportunity,
evidence of the defendant’s behavior before and after the murders, and evidence that
“strongly indicated” the defendant had disposed of the murder weapon was sufficient to
corroborate the accomplice’s testimony). This is especially true for “crimes for hire” cases,
which create a unique analytical challenge to the corroboration rule. As one neighboring
jurisdiction has noted, “The nature of a ‘crime for hire’ is that a physical connection between
the defendant and the crime, or even the scene of the crime, may never exist. The defendant
hires an accomplice for the purpose, among others, of avoiding a physical connection or
presence.” Ex parte Bullock, 770 So. 2d 1062, 1068 (Ala. 2000). Put another way, a well
executed “crime for hire” plot, by its very nature, would leave no evidence to corroborate an
accomplice’s testimony. Therefore, “the corroboration of an accomplice’s testimony in cases
of ‘crimes for hire’ may consist primarily of the defendant’s statements, which, interpreted
by reference to the circumstances, tend to connect the defendant to the crime.” Id.

        The State produced sufficient corroborative evidence at trial. With respect to the
identity of Defendant Orrand and her involvement in Lynn’s murder, the state produced
significant evidence establishing her motive as well as other corroborative evidence. Kevin
testified that Defendant Orrand told him that she would not divorce Lynn because he “would
not leave her alone.” Prior to Lynn’s death, Defendant Orrand told one of her coworkers that

                                             -22-
Lynn was abusive, that she could not divorce him because he would take her children, and
that he “would not leave her alone.” Similarly, Mr. Riley testified that he was told that the
Defendants wanted Lynn killed because he was abusive and because they wanted to marry.
The State also presented evidence that shortly before Lynn’s death, he increased the amount
of his life insurance policy with Defendant Orrand as the sole beneficiary of the policy.
Defendant Orrand told Lynn and his brother that “if something was to happen to you, if I
would have you killed, I’d be a rich woman.” Kevin testified that while he was living with
Ms. Hudson’s parents, he had several phone conversations with Defendant Orrand regarding
the murder. Ms. Hudson testified that Defendant Orrand would frequently call her parents’
home to speak with Kevin. Additionally, Defendant Orrand’s mother testified that the only
people who knew Lynn would be hunting on the morning of the murder were herself,
Defendant Orrand, and Kevin.

        When first told by her mother that Lynn had been shot, Defendant Orrand said, “If you
had called the ambulance he might not would have died.” However, Defendant Orrand
should not have known at that time that several hours had passed between the time Lynn was
shot and when his body was found. At the funeral home, Defendant Orrand stated several
times that she wanted Lynn “back now.” There was also evidence that Defendant Orrand
was not troubled by the fact that Lynn’s murder remained unsolved for decades. Kevin
testified that he agreed to kill Lynn in exchange for $5,000 and that Defendant Orrand
allowed Kevin and his family to move in with her. Several witness testified that shortly after
Lynn’s murder, Kevin and his family moved in with Defendant Orrand for a few months until
Defendant Orrand “kicked them out.” The State also produced evidence that after the
investigation was reopened, Kevin’s delinquent probation fines and fees were paid off in two
payments. Kevin testified that each of the Defendants gave him money to pay off his
probation fines and fees. Additionally, Defendant Bush tried to get a job for Kevin in 2007,
including having a meeting in his garage with Kevin and his neighbor. The neighbor testified
that Defendant Orrand walked in and out of this meeting in the garage.

        With regard to the identity of Defendant Bush and his involvement in Lynn’s murder,
Mr. Riley testified that Kevin and a man, who was driving a black Ford pickup truck and
introduced as Kevin’s “sister’s boyfriend,” asked him to kill Lynn. Mr. Riley testified that
he came to an agreement with Kevin and “his sister’s boyfriend” to attack Lynn in his garage
for $5,000. Mr. Riley testified in detail about the attack, including that he used a “tire tool,”
that he was wearing a jacket with fur around the hood, and that he ran away after Lynn either
“pulled a gun or said he had a gun.” Details of Mr. Riley’s description of the attack were
corroborated by the testimony of Gary Orrand and Officer Kety. The State also introduced
a recorded phone conversation between Mr. Riley and Defendant Bush in which Defendant
Bush told Mr. Riley to “stay cool” about the investigation into the murder. Kevin’s
testimony that he received the murder weapon from Defendant Bush was corroborated by

                                              -23-
Ms. Hudson, who testified that she went with Kevin to Jackson Heights where he met with
a man in a black Ford pickup truck. According to Ms. Hudson, Kevin then placed something
that looked like a gun wrapped in a piece of cloth into the trunk of the car, and, as they were
leaving, Ms. Hudson saw the man in the black Ford pickup truck and identified him as
Defendant Bush. Ms. Hudson testified that she later saw Defendant Bush in the same truck.
Defendant Bush’s ex-wife testified that in 1981 and 1982 he owned a black Ford pickup
truck, and a shotgun.

        In addition to the preceding evidence regarding the Defendants’ identities, the State
also produced a significant amount of evidence regarding the Defendants’ motive for Lynn’s
murder. Several former coworkers testified that it was common knowledge at Gemtop that
the Defendants were having an affair. Defendant Bush’s ex-wife testified that she suspected
that he was having an affair with Defendant Orrand. Several other witnesses testified that
they saw the Defendants engaged in a romantic relationship shortly after Lynn’s death.
Additionally, at the time of Lynn’s death, he and Defendant Orrand had five dollars in their
joint checking account and owned no real property. The State proved that Defendant Orrand
collected significant sums of money from Lynn’s life insurance policy, the CICF, and Social
Security benefits. In fact, Lynn told Ms. Perry in 1982 or 1983 that she would not marry
Defendant Bush because she would lose her Social Security benefits. After collecting this
money, Defendant Orrand purchased a house that Defendant Bush eventually moved into.

        The State also produced crime scene and forensic evidence to corroborate Kevin’s
testimony. The footprints found in the snow followed the same path Kevin testified that he
took to the site of the murder. The footprints also corroborated Kevin’s testimony that he ran
from the murder scene back to the abandoned church and that he fell and dropped the
shotgun in the snow. Kevin’s brother John testified that the footprints look similar to those
made by his Herman boots and that Kevin owned a pair of those boots. Tire tracks were
found at the abandoned church where Kevin testified that he had parked the station wagon.
Forensic evidence showed that Lynn was shot with the same type of gun and the same type
of slugs as Kevin testified to having used. Kevin testified that he fired two shots at Lynn,
with the first shot missing Lynn. The forensic evidence showed that two shots were fired and
one missed Lynn and hit a nearby rock, sending debris into Lynn’s arm. Kevin also testified
that he went to his wife’s hospital room after the murder to establish an alibi. Chief Gammon
testified that Kevin was seen either reentering or leaving the hospital on the morning of the
murder. Ms. Hudson testified that Kevin came into her hospital room that morning,
confessed to killing Lynn, and described parking the station wagon at the abandoned church
and walking in the woods to the murder scene.

      As stated above, this court must consider the combined force of all of the
corroborative evidence, including evidence of motive. Tennessee law does not require the

                                             -24-
State to have corroborated every aspect of Kevin’s testimony nor does it require that the
corroborating evidence alone had to be sufficient to prove the Defendants’ guilt beyond a
reasonable doubt. Instead, the corroborative evidence in and of itself need not be sufficient
to sustain a conviction, and only a portion of the accomplice’s evidence, including the
identity of the defendant, must be corroborated. Accordingly, we conclude that there was
sufficient evidence to corroborate the accomplice’s testimony and sustain the Defendants’
convictions.

                                IV. Alternate Juror Selection

        Defendant Bush contends that the trial court erred by failing to select the alternate
jurors “in plain view.” Defendant Bush argues that because the original lot of jurors were
drawn publicly, the alternates were required to be drawn publicly as well. Defendant Bush
further argues that the trial court’s failure to draw the alternates publicly created the
impression that they were pre-selected. Defendant Bush also contends that he was prejudiced
by the trial court’s failure to publicly draw the alternates because one of the alternate jurors
“had been taking copious notes.” The State responds that Defendant Bush has failed to cite
any legal authority for his contentions. The State also responds that nothing in the Rules of
Criminal Procedure requires that the selection be done “in plain view” and that even if the
trial court had erred, Defendant Bush has failed to demonstrate any resulting prejudice.

        Following the close of proof and after the jury had begun its deliberations, Defendant
Bush’s counsel asked the trial court, “[o]ut of curiosity how were the alternates selected?”
The trial court responded that they were selected randomly pursuant to the Rules of Criminal
Procedure. Defense counsel stated that he was “familiar with the rules” but that he “just
didn’t see it done.” The trial court responded that “I did it over here. I have 14 names and
I pulled two names out.” Defendant Bush’s counsel responded “Fine. I wasn’t looking.” At
the hearing on the motion for new trial, the trial court stated that “Just for the record I drew
[the alternates] out during your closing argument just while I was sitting here. I didn’t do it
publicly. I’ll admit that.”

        The rules “prescribing jury selection procedures are intended to protect the integrity
of the jury system by providing a uniform and ordered method that ensures the accused a fair
and impartial jury chosen from a fair cross-section of the community.” State v. Coleman,
865 S.W.2d 455, 458 (Tenn. 1993). When a defendant alleges error in the jury selection
process, “[i]t is the burden of the defendant to prove prejudice or purposeful discrimination
in the selection of a jury. Prejudice will not be presumed.” Id. Tennessee Rule of Criminal
Procedure 24(f) provides for two methods of selecting alternate jurors. The method used by
the trial court is referred to as the single entity method, which provides,



                                              -25-
       During jury selection and trial of the case, the court shall make no distinction
       as to which jurors are additional jurors and which jurors are regular jurors.
       Before the jury retires to consider its verdict, the court shall select by lot the
       names of the requisite number of jurors to reduce the jury to a body of twelve
       . . . . A juror who is not selected to be a member of the deliberating jury shall
       be discharged when that jury retires to consider its verdict.

Tenn. R. Crim. P. 24(f)((2)(A). The Advisory Commission Comments note that “before the
jury retires to deliberate the court will randomly deselect the additional jurors.”

        The State is correct in its assertion that Rule 24 does not require the trial court to
publicly draw the names of the alternate jurors when using the single entity method. While
the better practice may very well be to publicly draw the alternate jurors’ names, there is
simply nothing in the text of Rule 24(f) or the Advisory Commission Comments to suggest
that the trial court is required to draw the names “in plain view.” Furthermore, Defendant
Bush has presented no evidence to suggest he was prejudiced by the selection of the alternate
jurors. There was no suggestions that either of the alternate jurors would have favored
Defendant Bush. While one of the alternates had taken extensive notes, both the State and
the Defendants were equally subject to the affects of that juror’s removal. Accordingly, we
conclude that this issue has no merit.

                                       CONCLUSION

        Upon consideration of the foregoing and the record as a whole, the judgments of the
trial court are affirmed.




                                                     _________________________________
                                                     D. KELLY THOMAS, JR., JUDGE




                                              -26-
