           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                            March 3, 2009 Session

                     STATE OF TENNESSEE v. JEFFREY D. ALLEN

                      Direct Appeal from the Circuit Court for Crockett County
                                No. 3704    Clayburn Peeples, Judge



                       No. W2008-01348-CCA-R3-CD - Filed August 17, 2009


The defendant, Jeffrey D. Allen, was convicted by a Crockett County jury of first degree felony
murder, criminally negligent homicide, facilitation of attempted first degree murder, and attempted
especially aggravated robbery. On appeal, he argues that the sequestered jury was improperly
separated and that the trial court erred by not suppressing his statement to police, ruling a witness
unavailable, admitting prior bad act evidence, and allowing improper opinion evidence. Following
our review, we affirm the judgments of the trial court but remand for entry of a corrected judgment
form to reflect that the defendant received a life sentence for his first degree murder conviction.

   Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed and
                       Remanded for Entry of Corrected Judgment

ALAN E. GLENN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS, J., joined.
CAMILLE R. MCMULLEN , J., filed a dissenting opinion.

Michael A. Carter, Milan, Tennessee, for the appellant, Jeffrey D. Allen.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Garry G. Brown, District Attorney General; and Edward L. Hardister, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                                      OPINION

                                                       FACTS

      According to the State’s proof at trial, on January 22, 2003, the defendant and three others,
Chad Bricco, Eugene Spivey, and Quantel1 Taylor, went to the Crockett County home of fifty-six-



       1
           It is unclear from the record whether the correct spelling is “Quantel” or “Quentell.”
year-old Leonard Neely and his fifty-five-year-old brother, Lewis,2 with the intent to rob and kill
them. The victims were known to sell liquor from their home and rumored to keep large amounts
of cash on hand. The defendant and Spivey, who were armed with a .40 caliber pistol, gained entry
to the home under the pretense of wanting to buy some liquor, while Taylor and Bricco waited
outside with a shotgun. Once inside, either the defendant or Spivey began firing the pistol, shooting
Leonard multiple times and Lewis twice before fleeing the scene with their companions in the
defendant’s girlfriend’s vehicle. Later that night, Leonard Neely was found dead as a result of his
wounds inside the residence. Lewis survived the shooting but was unable to provide any assistance
to investigators due in large part to a series of strokes and seizures that predated the shooting, which
made it difficult for him to communicate.

        The defendant, who was almost immediately developed as a “person of interest” based on
information supplied by the victims’ neighbors, was initially interviewed by police on March 23,
2003. In that interview, the defendant denied any involvement in the crimes and claimed that he had
been babysitting his girlfriend’s children in Ripley on the night of the incident. Approximately two
years later, investigators received a tip that the murder weapon belonged to Ripley Police Officer
Debbie Kirkpatrick, who was Chad Bricco’s mother. When ballistics testing confirmed the
information, Bricco gave a statement admitting his involvement in the crimes and implicating the
defendant, Spivey, and Taylor.

        On March 18, 2005, the defendant was booked into the Crockett County Jail on a probation
violation warrant. One to two days later, Bricco, Spivey, and Taylor were each charged by warrant
with first degree murder, attempted first degree murder, and especially aggravated robbery. The
defendant then gave a second statement in which he continued to deny any involvement in the
crimes. In the second statement, however, the defendant added the new information that on the night
of the murder, Spivey and Bricco had borrowed his girlfriend’s vehicle for approximately forty
minutes. He also said that the next day they offered to sell him a .40 caliber pistol. The defendant
explained that his bloody fingerprints might have gotten on the weapon because he had touched it
while his hand was bleeding from a recent cut.

        On April 5, 2005, the Crockett County Grand Jury returned an indictment against the
defendant in connection with the instant case, charging him with one count of first degree
premeditated murder, one count of felony murder, one count of attempted first degree murder, and
one count of especially aggravated robbery. On May 11, 2005, while still in jail and before a lawyer
had been appointed to represent him, the defendant initiated a third statement in which he admitted
that he went to the victims’ residence with the intent to rob them. He denied, however, that he had
planned to kill the victims and claimed that Spivey, not he, was the shooter.

       On July 14, 2006, the defendant filed a motion to suppress his May 11 statement on the
grounds that it was obtained in violation of his Fourth Amendment right to be free from
unreasonable search and seizure and his Sixth Amendment right to the assistance of counsel. At the


       2
           W e note that this victim’s name is spelled “Louis” throughout the trial transcript.

                                                           -2-
August 25, 2006, hearing on the motion, Chief Deputy Jeff Sills of the Crockett County Sheriff’s
Department testified that on March 18, 2005, the defendant was arrested from the Dyer County Jail
on a “charge of violation of probation out of [Crockett County] Circuit Court” and booked into the
Crockett County Jail, where he was held on a $10,000 bond. He said that the first degree murder and
especially aggravated robbery charges were not added until April 11, 2005, after the defendant had
been indicted in circuit court for those offenses. He knew the charges were not added until that date
because he was the one who told the jailers to add them to the defendant’s current booking after the
defendant had been served with a capias at the jail. In addition, he had the defendant’s “NCIC sheet”
showing that the only charge entered on the day the defendant was booked into the jail was the
probation violation charge.

        Chief Deputy Sills further testified that the defendant’s three companions were charged by
warrant and taken into custody one to two days later. He acknowledged that they each gave
statements implicating the defendant in the crimes and that the defendant was a suspect in those
crimes at the time he was booked on the probation violation. He said, however, that although the
defendant was “being investigated for his involvement in the murder charge, . . . [h]e was being held
on the [probation] violation . . . up until the time he was indicted in April.” He testified that it was
his understanding that the defendant was placed in solitary confinement at the jail at his own request
due to problems he was experiencing with other inmates.

         The transcript of the May 11 interview, which was admitted as evidence at the hearing, began
with the defendant twice affirming that he had sent word that he wanted to talk to the sheriff about
the case. Chief Deputy Sills read the defendant his rights, and the defendant said that he understood
his rights and wished to make a statement. Chief Deputy Sills then asked that the defendant sign and
initial the waiver of rights form. At that point, the following exchange transpired:

       Q.     SHERIFF [TROY] KLYCE: This is Sheriff Klyce talking now. Jeffrey, have
       you been appointed a lawyer to represent you in this case?

       A.      No, sir.

       Q.      You don’t have an attorney?

       A.      (No verbal response.)

       Q.      So you haven’t talked to an attorney about this case?

       A.      No, sir.

       Q.      (By Jeff Sills) To clear up matters, you did go to court. You was [sic]
       indicted on this charge. You have been taken in front of the Circuit Court Judge and
       arraigned on the charge of first degree murder. Right?



                                                  -3-
       A.      Yes, sir.

       Q.     And during court proceedings, the Judge told you that he was gonna [sic] get
       you an attorney appointed to you. Correct?

       A.      He said in about two or three days he was gonna [sic] send somebody
       (unintelligible) Public Defender what I know and nobody hadn’t [sic] got in touch
       with me. (Unintelligible.)

       Q.      (By Sheriff Klyce)      You haven’t talked to anybody yet?

       A.      Nobody.

       Q.      (By Jeff Sills) And you don’t want an attorney present now?

       A.     I’m just gonna [sic] speak the truth about what happened about that murder
       scene.

       Q.      Okay.

        After the defendant finished his account of the crimes, he explained why he decided to make
the statement:

               ‘Cause my mother -- me and my mother was talking about that and then there
       was something that you told me back there. I don’t remember the exact words. You
       said, “You’ve got a Bible. You need to read that.” I’ve done read that whole Bible
       and a whole lot of things -- you know what I’m saying, -- that came to me. Like my
       mother told me, she said, “Baby, go on and talk to Troy.” You know what I’m
       saying? She said, “Tell Troy and them exactly what happened. Don’t lie. Don’t tell
       them no lie.” She told me to tell you that today at visitation.

        At the hearing, the prosecutor informed the court that his records reflected that the defendant
was indicted on April 5, 2005, and arraigned on April 11, 2005. After noting that the defendant’s
initial counsel was not appointed until June 13, 2005, approximately two months after the
defendant’s arraignment on the murder charges, the trial court observed that the delay was caused
by the difficulty in finding a lawyer in the area qualified to represent a defendant in a first degree
murder case. At the conclusion of the hearing, the court denied the motion to suppress, finding no
constitutional violations in the defendant’s voluntary statement. The trial court’s ruling states in
pertinent part:

               In this case I think you have to start the time that you’re talking about on
       April 11th, the date that he was arraigned. Is a month a long time in a case this
       serious for a lawyer not to have contacted him? It absolutely is a long time. The


                                                 -4-
        question is, does he have a constitutional right to have any voluntary statement he
        makes thirty days later excluded and . . . granted the inherently coercive nature of
        confinement, I don’t see anything beyond that in that statement or in the testimony.
        I don’t think the Sheriff’s Office could have done a better job of making sure that he
        was voluntarily doing what he was doing. . . . .

               At this point, absent some authority that has not been shown me, I don’t think
        the Constitution protects that. As lamentable and regrettable as it is, I don’t think the
        Constitution protects him from doing that.

        On May 7, 2007, the defendant filed a motion in limine to exclude the statement on the basis
that it was the product of coercion, in violation of his Fifth Amendment rights. Specifically, he
alleged that the two-month period he spent in solitary confinement at the jail without access to a
lawyer, combined with the persuasive statements made by law enforcement personnel, rendered his
statement involuntary and unknowing despite the presence of Miranda warnings. At the June 4,
2007, hearing on that motion, the defendant testified that he was held in solitary confinement during
the period between his March 18, 2005, arrest and his May 11, 2005 statement. During that time,
in which he never saw a lawyer, the sheriff and Chief Deputy Sills made comments about how he
should talk because his three companions were going to “pin” the crimes on him. In addition, one
of them told him that “they were gonna fry [him]” and Sheriff Klyce told him that he needed to be
reading his Bible.

         On cross-examination, the defendant acknowledged that he had an extensive record of felony
convictions and had served nine years for a 1995 aggravated robbery conviction. He said that the
sheriff and the deputy told him that he should let them know if he ever wanted to talk to them and
that after thinking about it for a while, he gave the statement. On redirect, the defendant testified that
he was placed in solitary confinement for fighting with another inmate. He denied that he requested
to be put in solitary confinement.

        Chief Deputy Sills testified that he never threatened the defendant and was not responsible
for his having been in solitary confinement; his understanding was that the solitary confinement
resulted from a conversation the defendant had with the sheriff. He denied he ever made any
comment about the defendant’s “being fried” and said that he never approached the defendant about
giving a statement. However, he and the defendant talked at different times, usually due to the
defendant’s striking up a conversation with him. He recalled that the defendant told him that his
mother said that he “needed to get right about things” and to “get into his Bible.” He testified that
he thought the sheriff gave the defendant access to a Bible and that “there was a statement made that
he [the defendant] needed to read the Bible.” Sills testified that he read the Bible himself and did
not see anything wrong with the statement.

       At the conclusion of the hearing, the trial court denied the motion, finding that any
conversations the deputy or sheriff may have had regarding the facts of the crimes after the



                                                   -5-
defendant’s incarceration were inappropriate, but their conversations did not vitiate the voluntariness
of the defendant’s statement.

         The defendant was tried alone before a Crockett County jury from April 2-4, 2008. In
addition to his statement of admission, the State presented evidence to show, among other things:
that the defendant’s three companions had given statements implicating the defendant in the crimes;
that the defendant had told his girlfriend of his plan to rob the victims; that the defendant and his
companions had borrowed the girlfriend’s car on the day of the robbery and that the defendant’s
blood was found in the girlfriend’s car.

         At the conclusion of the trial, the jury convicted the defendant of first degree felony murder,
criminally negligent homicide, facilitation of attempted first degree murder, and attempted especially
aggravated robbery. The jury sentenced the defendant to life for the first degree murder conviction.
After a sentencing hearing, the trial court sentenced the defendant as a Range II offender to
concurrent terms of twenty years for the facilitation of attempted first degree murder conviction,
twenty years for the attempted especially aggravated robbery conviction, and four years for the
criminally negligent homicide conviction, and ordered that the sentences be served consecutively to
the life sentence for first degree murder.

                 I. Denial of Motions to Suppress and/or Exclude Statement

       The defendant first contends that the trial court erred by not suppressing his May 11, 2005,
statement to police, arguing that the statement was obtained in violation of his Fourth, Fifth, and
Sixth Amendment rights. He cites Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199 (1964),
to argue that the trial court’s failure to timely appoint counsel violated his Sixth Amendment right
to counsel. Citing, inter alia, State v. Huddleston, 924 S.W.2d 666 (Tenn. 1996), and Rule 5 of the
Tennessee Rules of Criminal Procedure, he further argues that his long detention in solitary
confinement without access to counsel violated his Fourth Amendment right to be free from
unreasonable search and seizure. Finally, he argues that under the totality of the circumstances his
statement was unknowing and involuntary, violating his Fifth Amendment right not to incriminate
himself. The State argues that the trial court properly denied the motions to suppress the statement.
We agree with the State.

        When this court reviews a trial court’s ruling on a motion to suppress evidence, “[q]uestions
of credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in
the evidence are matters entrusted to the trial judge as the trier of fact.” State v. Odom, 928 S.W.2d
18, 23 (Tenn. 1996). The party prevailing at the suppression hearing is afforded the “strongest
legitimate view of the evidence and all reasonable and legitimate inferences that may be drawn from
that evidence.” State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998). The findings of a trial court in
a suppression hearing are upheld unless the evidence preponderates against those findings. See id.
However, the application of the law to the facts found by the trial court is a question of law and is
reviewed de novo. See State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).



                                                  -6-
        A defendant’s Sixth Amendment right to counsel attaches when the adversarial judicial
process has begun. Montejo v. Louisiana, __ U.S. __, 129 S. Ct. 2079, 2085 (2009); Brewer v.
Williams, 430 U.S. 387, 401, 97 S. Ct. 1232, 1240 (1977); State v. Rollins, 188 S.W.3d 553, 565-66
(Tenn. 2006). “[T]he clear rule of Massiah is that once adversary proceedings have commenced
against an individual, he has a right to legal representation when the government interrogates him.”
Brewer, 430 U.S. at 401, 97 S. Ct. at 1240 (footnote omitted). In Tennessee, the adversarial judicial
process is initiated upon the filing of the formal charge, which includes the arrest warrant,
indictment, presentment, or the preliminary hearing in cases in which a warrant was not obtained
prior to the defendant’s arrest. See Rollins, 188 S.W.3d at 566; State v. Mitchell, 593 S.W.2d 280,
286 (Tenn. 1980); State v. Jackson, 889 S.W.2d 219, 222 (Tenn. Crim. App. 1993).

       A criminal defendant also has a right to counsel that is encompassed within his Fifth
Amendment right against self-incrimination. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct.
1602, 1612 (1966); Huddleston, 924 S.W.2d at 669. Both the United States and Tennessee
Constitutions protect a defendant from being compelled to give evidence against himself. See U.S.
Const. amend. V; Tenn. Const. art. I, § 9. Thus, to be admissible at trial, a confession made while
under custodial interrogation must be shown to have been freely and voluntarily made, after the
defendant’s knowing waiver of his constitutional right to remain silent and to have an attorney
present during questioning. See Miranda, 384 U.S. at 444, 86 S. Ct. at 1612. In Rollins, our
supreme court applied Patterson v. Illinois, 487 U.S. 285, 108 S. Ct. 2389 (1988), to conclude that
when a defendant is adequately informed of “‘the dangers and disadvantages of self-representation’”
by properly executed Miranda warnings, “his waiver of his Sixth Amendment right to counsel at
such questioning is ‘knowing and intelligent.’” 188 S.W.3d at 566 (quoting Patterson, 487 U.S. at
300, 108 S. Ct. at 2389).

        In Montejo v. Louisiana, submitted by the State as supplemental authority in the case, the
United States Supreme Court overruled Michigan v. Jackson, 475 U.S. 625, 106 S. Ct. 1404 (1986),
which forbade police from initiating interrogation of a criminal defendant once he has requested
counsel at an arraignment or other similar proceeding. Montejo, __ U.S. at __, 129 S. Ct. at 2091.
The Court concluded that the marginal benefits of the Jackson rule were outweighed by the
substantial costs to the truth-seeking process and the criminal justice system, noting that the purpose
behind the rule – to prevent police from badgering defendants into waiving their previously asserted
rights – was already largely met by the protections afforded by Miranda, Edwards v. Arizona, 451
U.S. 477, 101 S. Ct. 1880 (1981), and Minnick v. Mississippi, 498 U.S. 146, 111 S. Ct. 486 (1990):

               These three layers of prophylaxis are sufficient. Under the Miranda-Edwards-
       Minnick line of cases (which is not in doubt), a defendant who does not want to
       speak to the police without counsel present need only say as much when he is first
       approached and given the Miranda warnings. At that point, not only must the
       immediate contact end, but “badgering” by later requests is prohibited. If that regime
       suffices to protect the integrity of “a suspect’s voluntary choice not to speak outside
       his lawyer’s presence” before his arraignment, [Texas v.] Cobb, 532 U. S. [162,] 175,
       121 S. Ct. 1335 [(2001)] (Kennedy, J., concurring), it is hard to see why it would not


                                                 -7-
        also suffice to protect that same choice after arraignment, when Sixth Amendment
        rights have attached.

Montejo, __ U.S. at __, 129 S. Ct. at 2090.

        The defendant does not dispute that he initiated the May 11 interview or that he was provided
with Miranda warnings prior to giving the statement. Instead, he contends that “[a]ny argument by
the government that [he] waived his right to an attorney . . . because [he] was mirandized is
irrelevant” because his Sixth Amendment right to counsel had already been violated by the
excessively long period he spent in solitary confinement without having counsel appointed to
represent him. We respectfully disagree.

         The Sixth Amendment guarantees an accused the right to the assistance of counsel at
“‘critical’ stages in the criminal justice process ‘where the results might well settle the accused’s fate
and reduce the trial itself to a mere formality.’” Maine v. Moulton, 474 U.S. 159, 170, 106 S. Ct.
477, 484 (1985) (quoting United States v. Wade, 388 U.S. 218, 224, 87 S. Ct. 1926, 1931 (1967)).
The transcript of the April 11, 2005 arraignment, which the defendant filed as a supplement to the
record, reflects that the lawyer the trial court attempted to appoint at the hearing had a conflict.
When the court recalled the defendant later that same day, it stated that it needed time to “study” the
matter and to ensure that the counsel appointed was qualified for a first degree murder case and
would be able to continue representation throughout the pendency of the case. The court expressed
its intention of completing the appointment “within the next two days.” Obviously, the trial court
was unable to find qualified counsel within that time frame. However, prior to the May 11 interview,
the defendant had not undergone any critical stage in the criminal process at which he needed the
assistance of counsel in order to ensure a fair outcome to his case. The defendant himself initiated
the interview, as he affirmed in his statement, and explained that he was motivated to do so by his
mother’s exhortations and his own reading of the Bible.

        We also disagree with the defendant’s contention that the statement should have been
suppressed under the totality of the circumstances on the basis that it violated his Fifth Amendment
right to be free from self-incrimination. The defendant asserts that the period he spent in solitary
confinement without access to counsel, during which time law enforcement personnel “both
encouraged and threatened” him to give a statement, rendered the statement unknowing and
involuntary despite the presence of Miranda warnings. However, as the State points out, the record
reveals that the defendant had a lengthy criminal history and had been repeatedly Mirandized,
including just before giving the May 11 statement. Thus, the defendant was obviously familiar with
the criminal justice system. Furthermore, the defendant still had contact with the outside world
despite being in solitary confinement, as evidenced by his May 11 statement in which he explained
that he was motivated to speak to the officers by the advice his mother had just given him during her
recent visitation. Finally, although Chief Deputy Sills acknowledged that either he or the sheriff
encouraged the defendant to read his Bible, he denied that he initiated any conversation with the
defendant about the crimes or that the defendant was threatened or coerced into giving the statement.



                                                   -8-
The evidence, therefore, does not preponderate against the trial court’s finding that the statement was
voluntary.

        The defendant also contends that the statement should have been suppressed on Fourth
Amendment grounds pursuant to the holding in Huddleston, 924 S.W.2d at 670, and Rule 5 of the
Tennessee Rules of Criminal Procedure, because he was not timely brought before a judge on the
probation violation charge for which he was arrested. The State argues, inter alia, that the defendant
suffered no Fourth Amendment violation because he was lawfully arrested and detained pursuant
to a probation violation warrant.

         In Huddleston, our supreme court concluded that a statement given after more than forty-
eight hours’ detention, following a warrantless arrest and without a judicial determination of
probable cause, should be suppressed on Fourth Amendment grounds unless the State establishes
that it “‘was sufficiently an act of free will to purge the primary taint of the unlawful invasion.’” 924
S.W.2d at 674 (quoting Brown v. Illinois, 422 U.S. 590, 598, 95 S. Ct. 2254, 2259 (1975)) (internal
quotations omitted). Tennessee Rule of Criminal Procedure 5 provides in pertinent part that “[a]ny
person arrested – except upon a capias pursuant to an indictment or presentment – shall be taken
without unnecessary delay before the nearest appropriate magistrate . . . .” Tenn. R. Crim. P. 5(a)(1).

        Our supreme court has observed, however, that “the issuance of a valid arrest warrant
satisfies the requirement that there must be a judicial determination of probable cause for extended
detention.” State v. Carter, 16 S.W.3d 762, 766 (Tenn. 2000) (citing Baker v. McCollan, 443 U. S.
137, 143, 99 S. Ct. 2689, 2694 (1979)). Chief Deputy Sills testified at the suppression hearing that
the defendant was picked up from the Dyer County Jail on a probation violation charge and booked
into the Crockett County Jail, where he was held on a $10,000 bond. At trial, he clarified that his
March 18 arrest of the defendant was pursuant to a probation violation warrant, which had been
signed by the judge on behalf of the probation officer. When reciting the procedural history of the
case, the prosecutor informed the court that the defendant had violated his probation in a previous
case as a result of a burglary charge to which he had entered a guilty plea in February 2005. We,
therefore, agree with the State that there was no Fourth Amendment violation in this case.

        Based upon this record, the evidence does not preponderate against the trial court’s findings
that the defendant’s statement was knowingly and voluntarily entered after he had been given
adequate Miranda warnings and signed a valid waiver of his right to remain silent or to have an
attorney present during questioning. We conclude, therefore, that the trial court did not err in
denying the defendant’s motions to suppress his statement.

                               II. Violation of Sequestration Rule

        The defendant next contends that the State failed to meet its burden of showing that he was
not prejudiced by the fact that some of the jurors used their cell phones without prior authorization.
We respectfully disagree.



                                                  -9-
          “Once a defendant shows that a [sequestered] jury has been separated, the burden shifts to
the State to show that such separation did not result in prejudice to the defendant.” State v. Jackson,
173 S.W.3d 401, 410 (Tenn. 2005) (citing Gonzales v. State, 593 S.W.2d 288, 291 (Tenn. 1980)).
“If the State fails to meet the burden of showing that the separation did not result in prejudice, a new
trial is required.” State v. Bondurant, 4 S.W.3d 662, 672 (Tenn. 1999).

        The record reflects that the trial court instructed the jurors at the beginning of the trial not to
make any telephone calls without informing the deputy beforehand that they would be doing so and
their intended topic of conversation. After the jury had been charged, defense counsel brought to
the court’s attention the fact that several of the jurors had been seen talking on their cell phones
during a break in the case. Defense counsel then moved for a mistrial on the grounds that the rule
of sequestration had been violated. The trial court denied the motion, stating it would not presume
that any prejudicial conversations had occurred but would inquire into the situation after the jurors
returned their verdicts. In the meantime, the court had the sheriff re-instruct the jurors not to use
their cell phones. After the verdicts and sentencing decision were rendered, the trial court inquired
as to whether any of the jurors had discussed or received any information about the case during any
cell phone conversations. The jurors indicated as a whole that they had not, and the trial court then
polled the jury, receiving each juror’s assurance that any cell phone conversations that may have
occurred concerned only personal or family matters.

         We disagree with the defendant’s assertion that the jurors’ assurances were insufficient to
satisfy the State’s burden of showing that no prejudice to the defendant occurred. Despite the fact
that the cell phone conversations may not have been pre-authorized, each juror assured the court that
he or she had not received or imparted any information about the case and that the conversations
were unrelated to the trial. We conclude, therefore, that the defendant is not entitled to relief on the
basis of this issue.

                                   III. Unavailability of Witness

       The defendant next contends that the trial court erred in ruling that the surviving victim,
Lewis Neely, was unavailable at trial. The defendant asserts that he presented proof to show that the
victim was physically and mentally capable of traveling to Tennessee and offering testimony at trial,
and that the trial court should have therefore issued a capias for his arrest to ensure his compliance
with the trial subpoena. The State argues that the trial court properly found Neely unavailable as a
witness due to his numerous health problems and the fact that he had previously demonstrated that
he was either unable or unwilling to comply with a trial subpoena. We agree with the State.

        Under Tennessee Rule of Evidence 804, a witness may be declared unavailable in situations
where her or she persists in refusing to testify despite an order of the court to do so; demonstrates
a lack of memory; is unable to be present or to testify at the hearing because of death or physical or
mental illness or infirmity; or is absent from the hearing and the proponent of the witness’s
statement has been unable to procure the witness’s attendance by process. Tenn. R. Evid. 804(a)(2)-
(5). When a witness is declared unavailable, his or her testimony given at another hearing or at a


                                                   -10-
deposition is admissible as an exception to the rule against hearsay. Tenn. R. Evid. 804(b). This
court reviews a trial court’s ruling on the unavailability of a witness under an abuse of discretion
standard. State v. Summers, 159 S.W.3d 586, 596 (Tenn. Crim. App. 2004); Hicks v. State, 490
S.W.2d 174, 179 (Tenn. Crim. App. 1972).

        Lewis Neely, who was living in a Michigan nursing home, did not respond to the first trial
subpoena. The trial court granted the defendant’s request for an independent medical examination,
which found that Neely was “unable to give . . . a history due to aphasia secondary to stroke” and
unable to communicate verbally with the nursing home staff. The examining physician concluded,
however, that Neely “appear[ed] physically capable of traveling to Tennessee without limitations”
but would “require assistance due to his inability to verbalize[.]” At a March 6, 2008, hearing on
the matter, however, the State introduced two letters from the victim’s attending physician who
stated that in his opinion Neely, who had suffered three strokes and also had, among other
conditions, diabetes, convulsions, and dementia, was neither physically nor mentally capable of
participating in the Tennessee trial.

         Defense counsel countered that he had anecdotal evidence that Neely was able to
communicate and requested that the trial court grant both a motion for another out-of-state subpoena
compelling Neely’s attendance at trial and a motion for his deposition. Defense counsel also
requested that the court issue a capias for Neely’s arrest, suggesting that it would be the
responsibility of the sheriff’s department to make suitable arrangements for Neely’s transport and
medical care, such as an ambulance and accompanying medical personnel. The trial court declined
to issue the capias, concluding that, based on the information before it, Neely’s failure to appear at
the first trial date resulted from his physical incapacitation. The court did, however, sign both a
certificate for another out-of-state subpoena and the order for a deposition, explaining that if Neely
was able to appear at trial, defense counsel would not need the deposition, but in the event he was
unable to attend, which the court thought likely, the deposition could be introduced. Neely
ultimately failed to appear for trial, and defense counsel introduced his deposition testimony.

        We find no abuse of discretion in the trial court’s handling of this matter. Neely’s physician
opined that he was both physically and mentally incapable of testifying at trial, and the defendant’s
own independent medical expert recognized that he suffered from aphasia and was unable to
communicate. Neely’s appearance and demeanor in the videotaped deposition were consistent with
these opinions. Although he directed his attention to the questioner, he appeared befuddled and
disoriented by the proceedings and was largely unresponsive, answering only “Yeah,” “No,” and
“Sir?” to simple questions and staring blankly when asked about the photographic array he had been
shown while in the hospital after the shooting. We note that the crucial information defense counsel
presumably wanted to elicit from Neely, that he had identified from the photographic array someone
unrelated to the case, and had not identified the defendant, was brought out at trial through the
testimony of Chief Deputy Sills. In addition, as the State points out, the trial court permitted defense
counsel to argue to the jury that Neely’s live testimony would have been better than his deposition
because the jurors could have made their own determinations as to his mental capacity. We
conclude, therefore, that the defendant is not entitled to relief on the basis of this claim.


                                                 -11-
                                   IV. Prior Bad Act Evidence

        The defendant next contends that the trial court erred in denying his motion in limine to
exclude prior bad act evidence of the defendant and his companions. Specifically, he complains that
the trial court should not have allowed the jury to hear the portion of his statement in which he
related how he, Spivey, and Taylor had attempted to rob the victims on the night preceding the
murder. The State argues that the trial court properly admitted the evidence because it was relevant
to show the defendant’s intent and “completed the story” for the jury. We agree with the State.

       Tennessee Rule of Evidence 404(b), provides as follows:

               Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts
       is not admissible to prove the character of a person in order to show action in
       conformity with the character trait. It may, however, be admissible for other
       purposes. The conditions which must be satisfied before allowing such evidence are:

               (1) The court upon request must hold a hearing outside the jury’s presence;

               (2) The court must determine that a material issue exists other than conduct
                   conforming with a character trait and must upon request state on the
                   record the material issue, the ruling, and the reasons for admitting the
                   evidence;

               (3) The court must find proof of the other crime, wrong, or act to be clear and
                   convincing; and

               (4) The court must exclude the evidence if its probative value is outweighed
                   by the danger of unfair prejudice.

         Exceptional cases in which evidence of an accused’s prior bad acts will be admissible include
those in which the evidence is introduced to prove identity, intent, motive, opportunity, or rebuttal
of mistake or accident. State v. Drinkard, 909 S.W.2d 13, 16 (Tenn. Crim. App. 1995). Such
evidence may also be admitted in order to complete the story of the crime for which the accused is
on trial. See Neil P. Cohen et al., Tennessee Law of Evidence § 4.04[13] (5th ed. 2005). Where the
trial judge has substantially complied with procedural requirements, the standard of review is abuse
of discretion. State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997).

         The defendant began his account of the crimes by telling the officers that he, Spivey, and
Taylor had gone to the victims’ home on the night preceding the murder and that Taylor had entered
the house with a shotgun hidden in his pants leg but had been “run off” by the victims. The
defendant said that when he and his companions were discussing the failed robbery with their
girlfriends, the defendant’s girlfriend told them how the robbery should be committed, suggesting
that the defendant go to the home under the pretense of wanting to buy some liquor from the victims.


                                                -12-
The defendant stated that Taylor recruited Bricco to help because he was known to have access to
a pistol and that the shooting began when Lewis Neely recognized Taylor from the previous night’s
aborted robbery attempt and ran to get his own gun.

        After listening to the arguments of counsel in a pretrial hearing, the trial court ruled that
evidence of the previous night’s robbery attempt was admissible, stating, in pertinent part: “ I think
it does complete the story and I think that the other comments the General made [that the evidence
showed the defendant’s intent and premeditation] are generally in line with what the Court feels on
that matter.”

        The trial court did not make the requisite findings for the admission of evidence under Rule
404(b). Regardless, we agree with the trial court that the evidence was relevant to show the
defendant’s intent and motive and to complete the story of the offenses for the jury. Furthermore,
in our view, the prejudicial impact of such evidence did not outweigh its strong probative value. We
conclude, therefore, that the trial court did not err in admitting the evidence.

                                 V. Improper Opinion Evidence

        As his final issue, the defendant contends that the trial court erred by allowing Sheriff Troy
Klyce to offer improper opinion evidence about the possible source of a scar he observed on the
defendant’s hand. The State argues that the evidence was properly admitted lay testimony relevant
to an issue at trial and based on the officer’s own personal experience.

        Sheriff Klyce testified that he observed a scar or old wound on the defendant’s left hand
between his thumb and index finger while he was taking the defendant’s March 21, 2005 statement.
After stating that he was familiar with semi-automatic pistols, Sheriff Klyce described the sliding
mechanism by which such pistols eject a shell after each shot and testified that he had once been
injured while firing a semi-automatic weapon when the slide on the pistol cut his hand between the
index finger and thumb. Over the defendant’s objection, the prosecutor asked the sheriff if the scar
he had observed on the defendant’s hand was consistent with the scar he had received from firing
the semi-automatic weapon. In response, the sheriff replied that it was located in the same place.

       Tennessee Rule of Evidence 701 provides:

       If a witness is not testifying as an expert, the witness’s testimony in the form of
       opinions or inferences is limited to those opinions or inferences which are

               (1) rationally based on the perception of the witness and

               (2) helpful to a clear understanding of the witness’s testimony or
                   the determination of a fact in issue.




                                                -13-
       We agree with the State that Sheriff Klyce’s testimony, to the effect that the defendant had
a wound located in the same place as a wound he had received from firing a semi-automatic weapon,
was rationally based on his own experience and perception. We conclude, therefore, that the
defendant is not entitled to relief on the basis of this claim.

                                          CONCLUSION

         Based on the foregoing authorities and reasoning, we affirm the judgments of the trial court
but remand for entry of a corrected judgment to reflect that the defendant received a life sentence for
his first degree murder conviction.


                                                        ___________________________________
                                                        ALAN E. GLENN, JUDGE




                                                 -14-
