           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                                JUNE 1995 SESSION



STATE OF TENNESSEE,                         )
                                                                      FILED
                                                   NO. 02C01-9503-CC-00059
                                            )
              Appellee,                     )      GIBSON COUNTY
                                            )
V.                                          )      HON. DICK JERMAN, JR.,
                                            )      JUDGE
                                                                December 28, 1995
                                            )
CYNTHIA ROBERSON and                        )      (First Degree Murder)
RHODNEY ROBERSON,                           )
                                            )
              Appellants.                   )                         Cecil Crowson, Jr.

                                                                      Appellate Court Clerk

                               DISSENTING OPINION

       I agree with the majority's finding that the evidence was sufficient to

support the first degree murder conviction. In light of the overwhelming evidence

of guilt, however, I do not find sufficient error to warrant reversal. I also disagree

with the majority in: (1) finding reversible error as to charging the jury with parole

eligibility; (2) finding a violation of Bruton v. United States, 391 U.S. 123 (1968);

and (3) finding that the judge abused his discretion in admitting the autopsy

photograph.

                                            I

       I agree with the majority's conclusion that the case sub judice arose prior

to the effective date of Tenn. Code Ann. § 40-35-201(b)(2)(A)(i) and (ii) (1994

Supp.) which permits instructing a jury as to parole eligibility. I do not find,

however, that the trial judge's instruction tainted the jury's finding of guilt. In

State v. Farris, 535 S.W.2d 608 (Tenn. 1976), the Court held that charging a jury

with the possibility of parole "bears only upon the question of punishment and

has no relation to the jury's finding of guilt or innocence." Id. at 614.



       In Farris, the Court initially reduced the jury's sentences to the statutory

minimum of the convicted offenses, subject to the state's consent. If the state

did not consent to the sentence reduction, the Court ordered remand for a new

trial on both the issue of guilt and sentencing. On petition to rehear, however,
the Court "recede[d] from [their] original opinion in this particular." The Court's

modification held that if the state chose not to consent to the sentence reduction,

the cause would be remanded solely for the purpose of resentencing and not for

retrying the issue of guilt. Accordingly, the jury's convictions in Farris, as

modified, were allowed to remain intact whether or not a remand for sentencing

was necessary.



         In the case sub judice, I would hold that instructing the jury as to parole

eligibility was harmless error as consideration of parole eligibility is only

impermissible during sentencing.1 The trial judge sentenced the appellants. The

jury determined their guilt. Whether the trial judge may have improperly

considered parole eligibility in sentencing the appellants is not the issue with

which we are faced. Accordingly, unless the majority is, in effect, holding such

considerations unconstitutional, I do not find authority supporting reversal on this

issue.

                                            II

         The majority has concluded that Bruton v. United States, 391 U.S. 123

(1968), was violated during the following cross-examination of appellants'

witness:

      Q. Isn't it true, Mr. Lenz, that the reason you were so curious about the
      condition of your daughter [sic] -- the reason that you were curious
enough to roll a dead body over and look at her back that you were
concerned that somebody had beaten your granddaughter.

         A. No, sir, I wasn't. . . . My granddaughter has never been beaten by
         anybody. She never even had a whipping.

         Q. She's never had a what?

         A. A whipping -- a spanking.
         ...

         Q. She's never had a spanking?


         1
          The legislature apparently agrees that consideration of parole eligibility
is only improper during sentencing. Otherwise, Tenn. Code Ann. § 40-35-
201(b)(2)(A)(i) would not have been drafted to permit juries to consider such
factors in their determinations of guilt. Note also, that the above legislation is in
apparent harmony with Farris because juries no longer issue sentences in non-
capital cases.

                                            2
       A. She's never had a spanking. She had a spat but not a spanking.

       Q. Can you explain then why Cynthia Roberson, your daughter, would
       say that when Rhodney spanked her that he was really rough with her?

       The statement was offered either as rebuttal evidence or for impeachment

purposes and not as substantive evidence.2 For purposes of impeachment, it

was irrelevant whether or not Rhodney actually spanked the child roughly. The

statement was offered to prove that the witness was on notice that the child had

been spanked, not "spat." If the witness admitted to having heard this

statement, whether or not a true statement, his credibility, in testifying that the

child had never been spanked, would have been impeached.



       Hearsay is an out of court statement offered to prove its truth. Had the

statement been offered to prove that appellant spanked his child roughly, a

hearsay problem attaches. The statement is not hearsay, however, if offered to

prove that the witness was aware that appellant spanked his child. Since the

statement might have been relevant for both impeachment and substantive

purposes, defense counsel could have requested and received a limiting

instruction.



       Due to counsel's failure to make a timely and specific objection or request

a limiting instruction, counsel "failed to take whatever action was reasonably

available to prevent or nullify the harmful effect" of any error that may have

occurred. Tenn. R. App. P., Rule 36(a). Had defense counsel made a proper

specific objection and then requested a limiting instruction, the trial judge could

have "carefully explained that [Mrs. Roberson's] statement introduced by the

state could be considered for impeachment purposes only and did not qualify as




       2
        The proper form of the question would be "Have you heard your
daughter say . . ." or "Isn't it true that your daughter told you . . . ." Had defense
counsel made a timely specific objection, the question could have been restated.
However, defense counsel failed to make either a specific or timely objection.
      Regardless, we look at substance over form. I find that the question as
framed was probative to whether or not the witness' testimony was credible.

                                          3
substantive evidence." State v. Zirkle, No. 03C01-9303-CR-00094, slip op. at 36

(Tenn. Crim. App. Feb. 13, 1995).



       Bruton is violated only when the entry of a non-testifying co-defendant's

statement implicates another defendant and violates the latter's right to

confrontation. Bruton, 391 U.S. at 127. The rule is designed to avoid

presentation of evidence without affording the jury an opportunity to evaluate the

context in which the statement was made and the veracity of its maker. Douglas

v. Alabama, 380 U.S. 415, 418 (1965).



       Because I find that the statement was not offered as substantive

evidence, I find no violation of Bruton. The statement was offered for rebuttal

purposes and, therefore, neither the context in which the statement was made

nor the veracity of its maker are at issue. Salinger v. United States, 272 U.S.

542 (1926). See also Tennessee v. Street, 471 U.S. 409 (1985) (holding

detailed statement by non-testifying co-defendant admissible for rebuttal

purposes). Accordingly, I disagree with the majority and find no reversible

Bruton error.3

                                         III

       As to the admissibility of the autopsy photograph, the appellants have not

shown a clear abuse of discretion that affected the trial's result. State v. Banks,

564 S.W.2d 947, 949 (Tenn. 1978); Tenn. R. App. P., Rule 36(b). The

admissibility of a photograph rests within the sound discretion of the trial judge

and should not be overturned unless it affirmatively appears that the admission

has affected the results of the trial. State v. Melson, 638 S.W.2d 342, 365

(Tenn. 1982); see also United States v. Brady, 595 F.2d 359, 361 (6th Cir.

1979). "The trend of modern authority is to vest more discretion in the trial court




       3
          I find it doubtful whether this statement, even if it were inadmissible
hearsay, would rise to the level of a reversible Bruton error. However, upon
finding the statement admissible for impeachment purposes only, the issue is
moot.

                                         4
in this respect." Banks, 564 S.W.2d at 949. Moreover, we cannot substitute our

judgment for that of the trial court. State v. Weaver, No. 4 (Tenn. Crim. App.

Jan. 3, 1985, Jackson).



       I respectfully dissent not because I disagree with the majority's finding that

the photograph was gruesome, but because I feel that both the applicable legal

standard and case law4 mandate affirming the trial court's ruling on this issue.

Otherwise, we risk creating ambiguity and arbitrariness in the established

standard.



       I feel that the majority has incorrectly stated the applicable legal standard

in the negative. The majority states that "we are unable to say that the undue

prejudicial effect of this gruesome photograph did not affect the jury's finding of

guilt." I read the standard for overturning as requiring an affirmative finding that:



       (1) the trial judge abused his or her discretion, and

       (2) that the admission affected the results of the trial.



       4
           See State v. Stout, 666 S.W.2d 80, 86 (Tenn. Crim. App. 1983)
(upholding introduction of photographs showing numerous bruises on victim's
body to show severity of beating that victim received); State v. Harbison, 704
S.W.2d 314 (Tenn. 1986) (finding gruesome color photographs admissible which
vividly depicted injuries caused by savage beating); State v. Miller, 771 S.W.2d
401 (Tenn. 1989) (permitting introduction of crime scene and morgue
photographs relevant to show brutality and force employed by killer in inflicting
numerous wounds on victim); see also State v. Brown, 756 S.W.2d 700 (Tenn.
Crim. App. 1988) (affirming introduction of photograph depicting gash in victim's
skull and brain matter on ground near victim); State v. Weaver, No. 4 (Tenn.
Crim. App. Jan. 3, 1985, Jackson) (affirming introduction of photograph of victim
sitting in chair with top of head blown completely off); State v. Garland, 618
S.W.2d 176, 183-84 (Tenn. Crim. App. 1981) (holding photograph of charred
body admissible); State v. Wright, 618 S.W.2d 310, 319 (Tenn. Crim App. 1981)
(finding photographs of body and head showing multiple stab wounds
admissible); State v. Driver, 634 S.W.2d 601, 607-08 (Tenn. Crim. App. 1981)
(admitting photographs of various bones of victim); State v. Dubose, No. 01C01-
9405-CC-00160 (Tenn. Crim. App. Aug. 25, 1995) (permitting introduction of
autopsy photographs).

       The only reported case I could find reversing a trial judge's exercise of
discretion, due to prejudicial impact, in admitting a photograph was Gladson v.
State, 577 S.W.2d 686 (Tenn. Crim. App. 1978). However, I feel that Gladson is
readily distinguishable from the case sub judice. See infra.

                                          5
To overturn in the absence of an affirmative finding of abuse of discretion5 and

prejudice, we merely supplant the trial judge's judgment with that of our own.

Therefore, if we are unable to conclude, as the majority confesses, that prejudice

occurred, we must affirm.



       Moreover, the majority concedes that the evidence of guilt was "clearly

sufficient to support the conviction of both appellants for first-degree child abuse

murder." I feel that case law mandates reversal only when the introduction of

photographs has tipped the scales. Accordingly, when the evidence of guilt is

overwhelming, as in this case, I feel that reversal is inappropriate absent a clear

showing of prejudice. See State v. Robinson, 622 S.W.2d 62, 66 (Tenn. Crim.

App. 1980) (finding error in admitting photographs irrelevant to any disputed

issue, however, holding that "their admission was harmless error in view of the

overwhelming evidence of the defendants' guilt").



       The majority cites Gladson v. State, 577 S.W.2d 686 (Tenn. Crim. App.

1978), as authority for finding error in the admission of an autopsy photograph.

However, I would distinguish Gladson on the basis that Gladson was willing to

concede that he killed the victim. At trial, Gladson merely asserted he acted in

self-defense. In that context, the autopsy photographs were no longer necessary

to establish cause of death. Furthermore, the autopsy photographs were not

germane to the only disputed issue, self-defense. Therefore, the only purpose

for their admission was to inflame the jury.6

       5
         See State v. Stephenson, 878 S.W.2d 530 (Tenn. 1994) (holding trial
court's decision regarding admissibility of photographs will not be reversed
absent clear showing of abuse of discretion); State v. Harbison, 704 S.W.2d 314
(Tenn. 1986) (stating ruling will not be overturned absent clear showing of abuse
of discretion).
       6
         In Gladson, this Court seemed concerned about the prejudicial impact
of the autopsy photographs when the only remaining disputed issue was whether
defendant acted in self-defense. Accordingly, I find that the appropriate tests are
as follows:

       1. When a photograph is not germane to any disputed issue, we affirm
       only upon an affirmative finding that prejudice has not occurred.


                                         6
       Unlike Gladson, we are not confronted with appellants willing to concede

they killed their child. See also State v. Norris, 874 S.W.2d 590 (Tenn. Crim.

App. 1993) (distinguishing Gladson on basis defendant would not stipulate as to

element of serious bodily injury). At trial, in the case sub judice, the cause of

death was both a material and disputed issue. The state alleged that the child's

death was a direct result of a fatal blow during the perpetration of aggravated

child abuse. Appellants, however, denied the allegations of child abuse. They

allege the child's fatal injuries occurred during accidental falls.7



       Appellants were charged with first degree murder for the "killing of [their

child] in the perpetration of or attempt to perpetrate . . . aggravated child abuse."

Tenn. Code Ann. § 39-13-202 (1993 Supp.). The autopsy photograph depicted

internal bruising which was substantive evidence of aggravated child abuse. By

statute, a finding of aggravated child abuse is a requisite element of the

appellants' first degree murder charge.8 Accordingly, the photograph was

probative to a requisite element of the state's case.



       The photograph gains even more relevance in its use as rebuttal

evidence. At trial, appellants denied allegations of child abuse and introduced

witnesses who testified that they had not seen visual signs or evidence of child

abuse. The appellants also proffered evidence that their child, prior to her death,

had fallen against a fireplace hearth and hit her head.


       2. When a photograph is relevant to a disputed issue, we reverse only
       upon an affirmative finding that prejudice has occurred.
       7
         Unlike Gladson, the trial court was not confronted with deciding the sole
issue of whether an affirmative defense to the killing was applicable.
       8
           The majority finds the photograph irrelevant apparently because the
photograph depicts injuries in addition to the injury directly causing death. I,
however, feel that the photograph depicting the child's multiple head injuries is
relevant to show the brutality of the attack and malice. See State v. Brown, 836
S.W.2d 530 (Tenn. 1992) (affirming admission of photographs as evidence of
brutality of attack and extent of force used against victim from which jury could
infer malice, either express of implied); See also State v. Smith, 868 S.W.2d
561 (Tenn. 1993) (holding photographs go to premeditation, malice, and intent
because of obvious multiplicity of wounds and obvious intent of whoever was
inflicting these wounds).

                                           7
       The state introduced the autopsy photograph to rebut appellants'

defenses and prove the statutory elements of the offense. See State v. Street,

768 S.W.2d 703 (Tenn. Crim. App. 1988) (finding photographs relevant to

establishing brutality of attack and intent which were proper subjects for jury

determination). Albeit gruesome, the autopsy photograph was relevant to:

       1. rebutting the appellants' defense of never having physically abused

       their child;

       2. rebutting the appellants' witnesses' testimony that the child had never

       been nor exhibited any signs of physical abuse (the photograph           clearly

depicts the child's multiple head injuries which would have been       concealed by

the child's hair and, therefore, not readily apparent to the    appellants'

witnesses);

       3. revealing the extent, number, and location of the child's head injuries

       to rebut appellants' defense that the child was merely bruised and injured

       by falling twice in the bathtub and once against the fireplace hearth; and

       4. assisting in understanding the testimony of the medical examiner. See

       State v. Debuse, No. 01C01-9405-CC-00160 (Tenn. Crim. App. Aug. 25,

       1995) (holding autopsy photograph of internal organs, although an

unpleasant sight, was admissible where photograph was helpful in

understanding testimony of medical examiner).



       The appellants should not be rewarded for inflicting injuries to their child

that were concealed by the child's hair. In the absence of any outward

manifestations of the injuries to the child's head, I find both necessity and

relevance in the autopsy photograph. The photograph clearly depicted that the

child had sustained numerous blows to her head which would not have been

readily visible to appellants' witnesses. This evidence of repeated blows to the

head also supports a jury finding that the lacerated duodenum occurred during

the perpetration of aggravated child abuse. State v. Bordis, 905 S.W.2d 214




                                          8
(Tenn. Crim. App. 1995) (finding photographs relevant to illustrate signs of child

neglect or abuse in proving deliberate and willful killing).



       Banks recognizes the "policy of liberality in the admission of evidence in

both civil and criminal cases, including the admission of photographs." Id.

Furthermore, as the current standard mandates, we must not overturn absent an

affirmative showing that the trial judge abused his discretion and the admission

affected the results of the trial. State v. Melson, 638 S.W.2d 342, 365 (Tenn.

1982). I find no abuse of discretion. Moreover, in light of the overwhelming

evidence of the appellants' guilt, I would also hold that "the photograph was

[neither] determinative evidence nor affected the results of the trial." See State

v. Weaver, No. 4 (Tenn. Crim. App. Jan. 3, 1985, Jackson) (holding photograph

of woman with top of head blown off just above eyes not determinative evidence

nor effect-resulting where evidence of guilt overwhelming).9




       For the foregoing reasons I respectfully dissent.




                                                  __________________________
                                                  PAUL G. SUMMERS, JUDGE


       9
          I would also note that the autopsy photograph in the case sub judice is
dehumanized. Upon a cursory examination of the photograph, I was unable to
ascertain exactly what photograph was depicting. Moreover, surgical procedures
on educational television channels have depicted a child's scalp pulled down in
precisely the same manner during a reconstructive surgical procedure to correct
malformations in the skull caused by birth defects.
         The photograph in Weaver, however, was more grizzly and disturbing as it
clearly depicted a woman in a flowery dress sitting in a chair with the top of her
head lying on her shoulder. A cursory examination of this photograph leaves
little doubt as to what the viewer is viewing.

                                          9
