        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 August 13, 2013 Session

                   STATE OF TENNESSEE v. KEVIN CLARK

                 Appeal from the Criminal Court for Overton County
                           No. 7021   Leon Burns, Judge




              No. M2012-01744-CCA-R3-CD - Filed November 21, 2013


The defendant, Kevin Clark, appeals his Overton County Criminal Court jury convictions of
two counts of first degree murder, aggravated arson, abuse of a corpse, reckless
endangerment, and two counts of aggravated assault. In this appeal, the defendant contends
that the trial court erred by admitting into evidence the videotaped deposition of a State’s
witness in lieu of live testimony, that the trial court erred by admitting evidence of forensic
testing conducted on the defendant’s shoes and clothing, and that the evidence was
insufficient to support his convictions of first degree murder. Discerning no error, we affirm.

            Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed

J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which J ERRY L. S MITH
and R OBERT W. W EDEMEYER, JJ., joined.

Michael R. Giaimo, Cookeville, Tennessee, for the appellant, Kevin Clark.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney
General; Randall A. York; District Attorney General; and Mark Gore, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                The defendant’s convictions relate to events that transpired on May 13, 2009.
At trial, the defendant’s ex-wife, Susan Beth Clark, testified that in May 2009, she and the
defendant lived in a house on property that adjoined property owned by the defendant’s
mother, Vida Clark, one of the homicide victims in this case. She recalled that when she
returned home from work at approximately 5:30 p.m. on May 12, 2009, “[t]here was a fence
across the driveway that had yellow bags on it.” She said that no secondary driveway
provided access to her home and that the driveway blocked by the fence was the only way
to her house. In consequence, the sight of the fence made her “physically ill,” and she was
forced to “drive up a field” to get to her house, nearly damaging her car. Susan Clark said
that she did not immediately wake the defendant, who was sleeping because he worked third
shift, but instead set about cleaning the kitchen. At one point, she went “to the back field”
to scrape out scrap food and overheard Vida Clark, Roy Clark, the other homicide victim, and
Sharon Miller “whispering and snickering and laughing.” Susan Clark testified that she
believed that the trio wanted her to wake the defendant and tell him about the fence, so she
did not do it. She said that, instead, she woke him up at 9:00 p.m. as she usually did. At that
point, she told him about the fence, and the defendant responded, “‘You’re kidding.’” He
then telephoned Jerry Clark, and after he finished his conversation, he said, “‘I can’t worry
about it. I’ve got to go to work.’” Susan Clark maintained that the defendant was not mad
or upset but that he “just seemed real puzzled.”

               According to Susan Clark, when the defendant returned from work in the
morning, he told her that he needed to mow a neighbor’s yard before the rain and that he
could not “‘deal with this today.’” She said that she told him that they could discuss the
matter of the fence with her brother, an attorney, when she finished her shift at work. The
defendant agreed, and she left for work. Susan Clark testified that the defendant telephoned
her at 6:35 a.m., and he was “not in his right self.” The defendant said to her, “‘It’s been
took care of. I’ve called the fire department and the police department.’” He then said,
“‘They’re not going to take me alive.’” Terrified, Susan Clark telephoned Jerry Clark, “and
he said he didn’t want to go up there.” She then telephoned the defendant’s friend and
pastor, Kevin Phillips, and asked him to investigate.

               During cross-examination, Susan Clark testified that the defendant made no
threats toward Roy and Vida Clark. She said that Roy Clark, the defendant’s younger
brother, lived with Vida Clark. She said she had not seen the defendant fight with Roy Clark,
but she had seen Roy Clark “stare [the defendant] down” and had seen Roy Clark tell Vida
Clark “that [the defendant] was staring at him, when in fact [the defendant] wasn’t staring
at him.”

               The defendant’s older brother, Jerry Clark, testified that the defendant had
lived next door to their mother for “eight or ten years” on property that Jerry Clark had sold
to the defendant. Their younger brother, Roy Clark, lived with their mother. On May 12,
2009, the defendant telephoned Jerry Clark and told him that Vida and Roy Clark had placed
a fence across his driveway. He said that he suggested that the defendant complete a
driveway that he had started to build on another part of the property to avoid trouble. The
defendant said that he should be permitted to use the existing driveway and indicated an
intent to hire a lawyer to investigate the issue. After Jerry Clark said, “Well, do whatever

                                              -2-
you need to do,” the defendant responded, “‘I believe I’m just going to take care of this
myself.’” Jerry Clark said that he encouraged the defendant a second time to use the other
driveway, and the defendant again said he would “take care of it.”

               Jerry Clark testified that, on the following morning, Susan Clark telephoned
him, and, in response to her call, he went to his mother’s house. When he arrived, “[i]t was
in flames.” He said that he also saw his mother lying in the driveway. Jerry Clark said that
no one else was around, so he “[k]indly got [him]self out of sight” until emergency personnel
arrived.

              During cross-examination, Jerry Clark acknowledged that the driveway he had
suggested the defendant use was not finished. In the rain, that driveway would not have been
passable. He acknowledged that, as executor of his mother’s estate, he had sued the
defendant for $1 million.

                The video-recorded deposition of State witness William Brockette and an
accompanying transcript were tendered as exhibits over the defendant’s objection. In the
deposition, Mr. Brockette testified that he had worked with the defendant on the third shift
sanitation crew at the Perdue Farms chicken processing plant in Monterrey. On May 12,
2009, the defendant told Mr. Brockette about an altercation with the defendant’s brother
“about a fence [that] had been put up across the driveway.” The defendant told Mr.
Brockette that “if that fence was still up when he got off work that morning and went home,
that he was going to kill him.” Mr. Brockette said that he did not take the threat seriously,
believing the defendant was “just blowing off some steam.” He said that the defendant was
“very frustrated” about the fence. Mr. Brockette said that he told the defendant to telephone
an attorney to deal with the situation and provided him with the name of an attorney. The
defendant told Mr. Brockette that “it just burns him up . . . how his brother acts.” According
to Mr. Brockette, the defendant said that his mother had “always taken up for Roy, and Roy
. . . can’t do anything wrong, and she’s always got excuses for things that he does.” Mr.
Brockette said that “[i]t seems like there was a . . . lot of frustration from past years, you
know, that had boiled up to . . .what happened.” Eventually, the men began to work, and the
defendant did not mention the fence again. Mr. Brockette remembered that the defendant left
before 5:00 a.m. on the following morning, explaining that the defendant had intended to buy
a weed-eater from Mr. Brockette but forgot the weed-eater in Mr. Brockette’s truck. Mr.
Brockette said that when he saw that the weed-eater was still in his truck, he tried to call the
defendant, but the defendant did not answer.

               On May 13, 2009, the defendant’s mother, Vida Clark, telephoned 9-1-1 and
reported that her son had come to her residence at 141 Hassler Road in Overton County and
had shot “both” of them. She told the 9-1-1 operator her arm “is about blowed off” and then

                                              -3-
made no other sound. The operator dispatched police to the scene.

               Near that same time, neighbors Jewel Belle Melton and Paul Walker saw
smoke coming from the residence at 141 Hassler Road. Ms. Melton testified that she was
on her front porch when she saw 141 Hassler Road “go shebang.” She said that she thought
the house “probably caught on fire, blowed up or something.” Ms. Melton recalled that
shortly before the house burned, the defendant telephoned her and asked if she knew “that
fence was up down there.” She said that she told him that she did and said that Vida Clark
had told her about the fence. She testified that the defendant said, “God bless you,” and hung
up the phone. Mr. Walker testified that he was awakened by gunshots at approximately 6:30
or 7:00 a.m. He said it sounded as though the shots had come from Vida Clark’s residence.
He said he telephoned a neighbor, who said that he had not heard any shots. Mr. Walker said
that he later heard more shots. He then went to make coffee, and when he returned to the
window, he saw smoke coming from Vida Clark’s residence.

              Overton County Sheriff’s Department Sergeant Robert Garrett and Deputy
Derrick Ledbetter responded to Vida Clark’s 9-1-1 call. Parking several hundred yards away
from the residence due to the nature of the call, the officers used tree cover as they made their
approach to the house because they had been advised that the shooter was still on the scene.
Sergeant Garrett testified that as they approached the house, he encountered some individuals
who told him there was a body near the house. Sergeant Garrett observed the body lying
three or four feet from the house, and after clearing the area, he and Deputy Ledbetter
dragged the body away from the flames. He said that the house was fully engulfed in flames.

                After setting up a perimeter and waiting for other officers, Sergeant Garrett and
those officers made their approach toward the defendant’s house. As they approached, they
saw the defendant standing in the doorway of his back porch with a camouflage colored rifle
in his hand. The defendant, who appeared to be wearing a field jacket, ordered the officers
to fall back. They initially fell back but then took another path toward the defendant’s house.
Sergeant Garrett recalled that as he began to cross a fence, he heard “what sounded like two
.22 shots.” Deputy Ledbetter “came across and was turning to cover for” Deputy John
Mackey1 when Sergeant Garrett heard a “louder boom, that came from a larger caliber.” At
that point, Deputy Ledbetter “grabbed his shoulder and hit the ground and said, ‘I’ve been
hit.’” Sergeant Garrett removed Deputy Ledbetter’s shirt and examined his chest underneath
the ballistics vest and observed “a large amount of redness on his shoulder area.”

                Sergeant Garrett testified that after a period of negotiating with his pastor, the


        1
         This individual’s surname is spelled “Mackey” in the indictment and “Mackie” in the transcript.
As is the policy of this court, we utilize the spelling in the indictment.

                                                  -4-
defendant surrendered and “was apprehended peacefully.” When officers entered the
defendant’s house, they observed “a small kitchen-like table, and it had two guns on it
pointing out the window.” Officers observed a camouflage jacket on the floor.

              Deputies Mackey and Ledbetter confirmed Sergeant Garrett’s recitation of the
day’s events. Deputy Ledbetter added that Vida Clark’s body was quite hot and that when
he “grabbed her, it was just warm and like, you know, just real jelly feel.”

               Agent Greg Whittaker of the State of Tennessee Bomb and Arson Unit testified
that he was called to investigate the fire at 141 Hassler Road. He said that after a brief period
of consultation with the other officers on the scene and fellow agent Craig Frost, the larger
scene was divided into three crime scenes: 141 Hassler Road, 135 Hassler Road, and the
female victim’s body. Agent Whittaker began his investigation by walking around the fire
“trying to develop fire patterns, and looking at the damage to the residence to determine
where the fire could have possibly originated.” As he circled the residence, he saw
“numerous shotgun shells located on the outside of the residence.” After this preliminary
examination, he began to process the scene “from the area of less damage to the area of the
greatest damage.” The right side of the residence bore the most damage. As he conducted
his investigation, he created a video of the scene that was played for the jury.

               Agent Whittaker said that he found the bodies of a human and a dog in the
kitchen area of the burned home. The body had suffered severe fire damage. Agent
Whittaker determined that the fire originated on the right side of the house. He said that “an
unusual burn pattern on the exterior of the residence” was consistent with the use of an
accelerant to start the fire.

               At the defendant’s residence, officers recovered “gasoline found in some quart
jars, along with some foam-type products commonly associated with maybe some type of
incendiary device itself.” Based upon his investigation, Agent Whittaker concluded that the
fire was “an incendiary fire. It is a set fire.” He said that “[t]here was no way” that the fire
could have started at its point of origin “other than being set.” No other possible sources of
the fire existed.

              Tennessee Bureau of Investigation (“TBI”) Agent Steve Huntly responded to
a call from the Overton County Sheriff to investigate the crimes on Hassler Road. Agent
Huntley said that he headed the investigation and took a primarily administrative role. Agent
Huntley recovered the Ruger 10/22 and Winchester pump-action 12-gauge shotgun from the
defendant’s residence. He also collected the defendant’s jacket for testing and found “shot
shells” and one slug in the pocket. Agent Huntley took possession of those items collected
by other agents during the investigation at 141 Hassler Road. After officers finished

                                               -5-
processing the three scenes, Agent Huntley went to the medical examiners office, where he
collected shotgun pellets recovered from Vida Clark’s arm and from Roy Clark’s abdomen.
He also collected the defendant’s clothing and boots from the jail. Agent Huntley took all
of the collected evidence to the TBI laboratory for testing.

               TBI Agent Billy Miller testified that he was called to assist Agent Huntley in
the investigation. At the Hassler Road scene, Agent Miller manned a table where evidence
was processed as it was collected. After arson investigators finished examining the inside
of the 141 Hassler Road residence, he completed the exterior processing of that scene.
During that processing, Agent Miller discovered “a casing from a 12-gauge spent round” on
the right side of the crime scene, another on the left side, and other partially-intact 12-gauge
shell casings on the ground. He also found the “skin” to a metal door that bore a “gash to the
right of the doorknob.” There were also holes in the doorknob itself as well as holes in a dent
in the door. Forensic examination established that the shells had been fired from the shotgun
recovered from the defendant’s residence.

               TBI Agent and Firearms Identification Expert Steve Scott testified that he
examined a 12-gauge shotgun and a .22-caliber rifle taken from the defendant’s residence
as well as a number of “shotshell” cases and .22-caliber cartridge cases. He said that the
birdshot pellets obtained from the victims at autopsy were “consistent, or within the size and
weight specifications of” those shotshells he determined had been fired by the 12-gauge
shotgun. He also examined a window screen and determined that a hole in the screen was
caused by a shotgun blast with the muzzle of the gun aimed less than five feet away from the
screen.

              TBI Special Agent and Forensic Scientist Randall Curt Nelson testified that he
analyzed three vials of liquid obtained from the defendant’s residence and determined them
to be “gasoline-range products.” Forensic analysis of the defendant’s jacket, boots, and
clothing “revealed the presence of an evaporated gasoline range product.” Testing also
revealed the presence of an evaporated gasoline-range product on a piece of pipe foam taken
from the defendant’s residence. During cross-examination, Agent Nelson admitted that he
could not quantify the amount of the substance that was on any of the items.

              TBI Special Agent and Forensic Scientist Robert T. Miles, III, testified that he
examined the defendant’s jacket, boots, and clothing for the presence of gunshot residue. He
found the residue on all three items.

               Doctor Thomas Deering, the forensic pathologist who performed the autopsies
of Vida and Roy Clark, testified that Roy Clark’s body had “been burned to a point that
portions of the body had started to disintegrate because of the burning.” In fact, the feet had

                                              -6-
been burned off the body completely and part of the skull had burned away, exposing Roy
Clark’s brain. In addition, “the body had also been injured by a shotgun wound.” Based
upon the location of the wound and the pellets inside Roy Clark’s body, Doctor Deering
determined that Roy Clark was shot in the back left flank. Pellets from the shotgun blast
lacerated Roy Clark’s spleen, left kidney, liver, diaphragm, pancreas, and “the mesentery of
the intestines, which is where the vessels run to support all of the intestines.” Doctor Deering
said that the absence of soot from Roy Clark’s airways established that he did not breathe the
smoke from the fire. Additionally, the level of carbon monoxide in his blood was akin to that
of a heavy smoker but not at a level consistent with his being alive during the fire. Doctor
Deering determined that the cause of Roy Clark’s death was a shotgun wound to the
abdomen.

               Doctor Deering testified that Vida Clark suffered “at least two, and maybe stray
pellets from more than two” shotgun wounds. In addition, she had “thermal injuries” to her
head, torso, legs, and right forearm. A shotgun wound to the back of the left side of her neck
injured her vertebrae and spinal cord, and “some of the pellets exited, and they came out her
mouth, knocking out the teeth, lacerating the lips and the face around the mouth.” The
second entrance wound was on the back of the left arm, and it followed a downward
trajectory. Doctor Deering said that Vida Clark also had a number of “separated pellet holes,
kind of scattered across the back.” He said that these wounds could have come from the blast
to her arm or from another blast altogether. Doctor Deering characterized the wound to Vida
Clark’s neck as lethal. He said that it would have been impossible for Vida Clark to call 9-1-
1 after suffering that wound because it nearly severed her spinal cord and did sever the left
vertebral artery as well as fracture her jaw, break her teeth, and seriously injure her lips and
tongue. He said that she would have fallen immediately after being shot and would not have
been able to move. Vida Clark’s blood contained an elevated level of carbon monoxide,
indicating that she lived long enough to breathe the smoke from her burning home.

                At the conclusion of this testimony, the State rested. Following a Momon
colloquy, see State v. Momon, 18 S.W.3d 152, 161-62 (Tenn. 1999), the defendant elected
not to testify and chose not to present any proof. The jury convicted the defendant of the first
degree premeditated murder of Vida Clark, the first degree premeditated murder of Roy
Clark, the felony murder of Vida Clark in the perpetration of the murder of Roy Clark, the
felony murder of Vida Clark in the perpetration of burglary, aggravated arson, abuse of a
corpse, the aggravated assault of Deputy Mackey, the aggravated assault of Sergeant Garrett,
and the lesser included offense of reckless endangerment on that count charging the
attempted first degree murder of Deputy Ledbetter. The trial court merged the convictions
of the felony murder of Vida Clark into the conviction of the premeditated murder of Vida
Clark. The trial court imposed the automatic sentence of life for each first degree murder
conviction, and, after a sentencing hearing, the court ordered the life sentences to be served

                                              -7-
consecutively to one another. The court ordered the sentences for the remaining offenses to
be served concurrently to the consecutive life sentences.

                The defendant filed a timely but unsuccessful motion for new trial, alleging,
inter alia, that the trial court erred by admitting into evidence the videotaped deposition of
Mr. Brockette, that the trial court erred by admitting into evidence the results of forensic
examination of the defendant’s clothing and boots, and that the evidence was insufficient to
support his convictions. In this appeal, the defendant again raises these three issues. We
consider each in turn.

                       I. Deposition Testimony of William Brockette

              The defendant avers that the trial court erred by permitting the State to depose
Mr. Brockette prior to trial and that the admission into evidence of Mr. Brockette’s
videotaped deposition violated his constitutional right to confront the witnesses against him.
The State contends that the trial court did not err by permitting the taking of the deposition
but concedes that admission of the deposition into evidence violated the defendant’s
confrontation right. The State insists, however, that the error can be classified as harmless
beyond a reasonable doubt.

                                  A. Taking the Deposition

              Prior to the defendant’s trial, the State moved for leave to depose Mr. Brockette
to preserve his testimony, which the State deemed “material” to its case against the
defendant, on grounds that Mr. Brockette’s attendance at trial would place him in a
precarious financial position. In its motion, the State relayed that Mr. Brockette “had voiced
concerns” about appearing at trial “due to difficulties with his employment.” The State
explained that the witness, an over-the-road trucker, performed a “dedicated haul” each
week, driving to California beginning on Wednesday and returning to Tennessee on Sunday.
Because of his schedule, his appearing at trial would cost him an entire week’s work and
would “pose a great financial difficulty for him.”

               The defendant filed an objection to the taking of Mr. Brockette’s deposition,
arguing that “the circumstances surrounding the potential witness’s testimony do not satisfy
the requirements of Rule 15” and that “a deposition of a material witness” would violate the
defendant’s right to confront the witnesses against him.

              In response, the prosecutor filed an affidavit indicating that the State had been
unable to serve Mr. Brockette with a subpoena to testify at trial and that it appeared that Mr.
Brockette was “actively avoiding service of process.” The prosecutor stated that Mr.

                                              -8-
Brockette had attempted to make arrangements with his employer, but none could be made,
and that his missing an entire week of work would cause “great personal sacrifice” to both
Mr. Brockette and his partner, who was “close to having his home foreclosed.” The
prosecutor said that Mr. Brockette had advised the State that he would not appear for the
scheduled trial but would agree to appear for a deposition three days before the scheduled
trial date.

              On the following day, the trial court entered an order granting the State’s
motion, finding that Mr. Brockette was “a material witness for the State” and that
“exceptional circumstances exist[ed] justifying the taking of the deposition.” The Court
denied the State’s motion to continue the trial.

              Tennessee Rule of Criminal Procedure 15 governs the taking of depositions in
criminal cases. That rule provides, in pertinent part, that “[a] party may move that a
prospective witness be deposed in order to preserve testimony for trial. The court may . . .
grant the motion because of exceptional circumstances.” Tenn. R. Crim. P. 15(a). The rule
does not define “exceptional circumstances,” and neither this court nor our supreme court has
undertaken to define the term. Our supreme court has deemed a witness’s military service
“exceptional circumstances,” and the resulting unavailability justification for the taking of
the witness’s deposition and its later use at trial. State v. Simon, 635 S.W.2d 498, 504 (Tenn.
1982). A witness’s medical condition has also been deemed “exceptional circumstances”
under Rule 15. State v. Powers, 101 S.W.3d 383, 398 (Tenn. 2003). This court has
expressed doubt that a witness’s vacation plans, see State v. Coulter, 67 S.W.3d 3, 59 (Tenn.
Crim. App. 2001), or a witness’s impending relocation to Saudi Arabia, see State v. Jeffrey
Scott Gold, No. E2012-00387-CCA-R3-CD, slip op. at 13-14 (Tenn. Crim. App., Knoxville,
Aug. 15, 2013), qualified as “exceptional circumstances” under the terms of the rule. Other
cases, although not addressing the propriety of the taking of a deposition, have noted that
depositions were taken to preserve the testimony of a witness incarcerated in another state,
see State v. Marlow Davis, No. W2011-01548-CCA-R3-CD (Tenn. Crim. App., Jackson,
May 21, 2013), and a witness suffering from end stage lung cancer, see State v. Justin Brian
Conrad, No. M2008-01342-CCA-R3-CD (Tenn. Crim. App., Nashville, Sept. 29, 2009).

              With these cases as our guide, we conclude that the State failed to establish that
“exceptional circumstances” warranted the taking of Mr. Brockette’s deposition in this case.
At bottom, Mr. Brockette’s complaint was that his appearance at trial would force him to
miss work and incur financial difficulties as a result. Many, if not most, witnesses must miss
work to testify at trial. Were we to conclude that missing work constituted exceptional
circumstances under Rule 15, then any witness whose appearance at trial subjected them to
missed work would be subject to deposition.



                                              -9-
              Although we have concluded that the trial court erred by permitting the State
to depose Mr. Brockette, the defendant has failed to establish that he was prejudiced by the
erroneous ruling. Mr. Brockette’s testimony, although quite damaging to the defendant, was
not the only proof that the defendant premeditated the murders of his mother and brother.
Indeed, the evidence of the defendant’s premeditation was overwhelming.

                              B. Admission of the Deposition

               The defendant contends that the admission of Mr. Brockette’s videotaped
deposition violated the terms of Rule 15 and his constitutional right to confront the witnesses
against him. The State concedes that admission of the deposition violated the defendant’s
constitutional rights but argues that the error was harmless beyond a reasonable doubt.

              Rule 15 provides:

              At the trial or in any hearing, a party may use a part or all of a
              deposition-otherwise admissible under the Tennessee Rules of
              Evidence-as substantive evidence if:

                     (A) the witness is unavailable as defined in Rule 15(h);
              or

                     (B) on motion and notice, the court-in the interest of
              justice with due regard to the importance of presenting the
              testimony of witnesses orally in open court-finds such
              exceptional circumstances exist that make it desirable to allow
              the deposition to be used.

Tenn. R. Crim. P. 15(f)(1).

              Unavailability of a witness under Rule 15(f) means situations in
              which the declarant:

                     (A) is exempted by court ruling on the ground of
              privilege from testifying concerning the subject matter of the
              declarant’s statement;

                     (B) persists in refusing to testify concerning the subject
              matter of the declarant’s statement despite a court order to do so;



                                             -10-
                     (C) demonstrates a lack of memory of the subject matter
              of the declarant’s statement;

                    (D) is unable to be present or to testify at the hearing
              because of the declarant’s death or then existing physical or
              mental illness or infirmity; or

                     (E) is absent from the hearing and the party seeking to
              introduce the declarant’s statement has been unable to procure
              the declarant’s attendance by process or other reasonable means.

Tenn. R. Crim. P. 15(h)(1).

              In this case, the trial court made no finding that Mr. Brockette was unavailable
before permitting the State to utilize his videotaped deposition at trial. The State indicated
via the affidavit of the prosecutor that Mr. Brockette was “actively avoiding” service of
process, however, the State remained in communication with the witness throughout the
proceedings. Nothing in the record establishes that Mr. Brockette was unavailable under the
terms of Rule 15. Accordingly, the trial court erred by admitting the videotaped deposition
into evidence at trial. As we have indicated, however, admission of the deposition was
harmless.

              The defendant also contends that admission of the deposition violated his
Confrontation Clause rights. As this court has observed, “any interpretation of Tenn. R.
Crim. P. 15 must be made against the backdrop of constitutional protections that inhere in
the Confrontation Clause of the Sixth Amendment to the United States Constitution and
Article 1, Section 9 of the Tennessee Constitution.” Coulter, 67 S.W.3d at 59. “‘The
deposition[, even when videotaped,] is a weak substitute for live testimony, a substitute that
the Sixth Amendment does not countenance on a routine basis.’” Id. (quoting Stoner v.
Sowders, 997 F.2d 209, 213 (6th Cir. 1993)). Indeed, “the particular vice that gave impetus
to the confrontation claim was the practice of trying defendants on ‘evidence’ which
consisted solely of ex parte affidavits or depositions secured by the examining magistrates,
thus denying the defendant the opportunity to challenge his accuser in a face-to-face
encounter in front of the trier of fact.” California v. Green, 399 U.S. 149, 156 (1970)
(emphasis added).

             The Sixth Amendment to the federal constitution and article I, section 9 of the
Tennessee Constitution afford the criminal accused the right to confront the witnesses against
him. See U.S. Const. amend. VI; Tenn. Const. art. I, § 9. Although the provisions are not
coterminous, our supreme court “‘has largely adopted the standards used by the United States

                                             -11-
Supreme Court . . . in determining whether the Tennessee constitutional right has been
violated.’” State v. Parker, 350 S.W.3d 883, 897-98 (Tenn. 2011) (quoting State v. Maclin,
183 S.W.3d 335, 343 (Tenn. 2006)); see also State v. Lewis, 235 S.W.3d 136, 144 (Tenn.
2007).

                In Crawford v.Washington, 541 U.S. 36 (2004), the United States Supreme
Court departed from decades’ long precedent and held for the first time that “[w]here
testimonial evidence is at issue . . . the Sixth Amendment demands . . . unavailability and a
prior opportunity for cross-examination.” Crawford, 541 U.S. at 68 (emphasis added).
“Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design
to afford the States flexibility in their development of hearsay law.” Id. In Crawford, the
Court laid the groundwork for what came to be known as “the primary purpose” test for
distinguishing testimonial statements from non-testimonial statements. The Court refined
the test in later opinions:

              Statements are nontestimonial when made in the course of
              police interrogation under circumstances objectively indicating
              that the primary purpose of the interrogation is to enable police
              assistance to meet an ongoing emergency. They are testimonial
              when the circumstances objectively indicate that there is no such
              ongoing emergency, and that the primary purpose of the
              interrogation is to establish or prove past events potentially
              relevant to later criminal prosecution.

Davis v. Washington, 547 U.S. 813, 822 (2006). The Court noted that objective evaluation
of “the circumstances in which the encounter occurs and the statements and actions of the
parties” is necessary to determine whether a statement is testimonial or non-testimonial.
Michigan v. Bryant, 131 S. Ct. 1143, 1156 (2011).

               The State concedes that Mr. Brockette’s videotaped deposition was testimonial
and that its use at his trial violated his constitutional rights. We agree. The deposition was
clearly prepared for use at trial. Thus, the State was required to establish that Mr. Brockette
was unavailable and that the defendant had a prior opportunity to cross-examine him. We
have already concluded that the State failed to establish that Mr. Brockette was unavailable
under the terms of Rule 15, and we similarly conclude that he was not unavailable for
purposes of the Confrontation Clause.

               Mr. Brockette lived within the jurisdiction, and he remained in constant contact
with the district attorney’s office. Although the prosecutor indicated that Mr. Brockette was
“actively avoiding” the service of process, the State did not establish that it had exhausted

                                             -12-
all reasonable means to secure his attendance at trial. See Ohio v. Roberts, 448 U.S. 56, 74
(1980) (quoting Barber v. Page, 390 U.S. 719,724-25 (1968) (“The basic litmus of Sixth
Amendment unavailability is established: ‘[A] witness is not ‘unavailable’ for purposes of
. . . the exception to the confrontation requirement unless the prosecutorial authorities have
made a good-faith effort to obtain his presence at trial.’” (emphasis added)). In fact, Mr.
Brockette expressed a willingness to testify but quibbled with the dates of the defendant’s
trial.

               Because the State failed to establish that Mr. Brockette was unavailable, the
admission of his videotaped deposition violated the defendant’s Confrontation Clause rights.
That being said, we view the admission of the deposition to be harmless beyond a reasonable
doubt. See Coy v. Iowa, 487 U.S. 1012, 1021 (1988) (“We have recognized that other types
of violations of the Confrontation Clause are subject to that harmless-error analysis, see e.g.,
Delaware v. Van Arsdall, 475 U.S. [673, 679, 684 (1986)], and see no reason why denial of
face-to-face confrontation should not be treated the same.”). As we have said, Mr.
Brockette’s testimony certainly tended to establish that the defendant premeditated the
murders in this case, but it was not the only evidence that supported a finding of
premeditation. We have no hesitation in concluding that, even absent Mr. Brockette’s
testimony, the outcome of the defendant’s trial would have been the same.

                                    II. Chain of Custody

                The defendant next contends that the trial court erred by admitting the results
of forensic testing conducted on his clothing and boots, claiming that the State failed to
establish an adequate chain of custody for these items. Specifically, he asserts that because
the State failed to call as a witness the jail employee who placed the defendant’s clothing into
a bag at the jail, the State failed to establish an unbroken chain of custody. The State avers
that the trial court did not err by admitting the evidence.

               “Whether the requisite chain of custody has been established to justify
admission . . . is ‘a matter committed to the discretion of the trial judge and [t]his
determination will not be overturned in the absence of a clearly mistaken exercise thereof.’”
Davis v. Shelby County Sheriff's Dep’t, 278 S.W.3d 256, 267 (Tenn. 2009) (quoting Shell v.
Law, 935 S.W.2d 402, 409 (Tenn. Ct. App. 1996)). Accordingly, this court will not reverse
the trial court’s ruling on the chain of custody “unless the trial court ‘applied an incorrect
legal standard, or reached a decision which is against logic or reasoning that caused an
injustice to the party complaining.’” State v. Cannon, 254 S.W.3d 287, 295 (Tenn. 2008)
(quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)).

              Although “it is ‘well-established that as a condition precedent to the

                                              -13-
introduction of tangible evidence, a witness must be able to identify the evidence or establish
an unbroken chain of custody,’” Cannon, 254 S.W.3d at 296 (quoting State v. Scott, 33
S.W.3d 746, 760 (Tenn. 2000)), the general rule “does not require that the identity of tangible
evidence be proven beyond all possibility of doubt,” id. The State need not “call all of the
witnesses who handled the item.” Id. (citing State v. Johnson, 673 S.W.2d 877, 881 (Tenn.
Crim. App. 1984)). So long as the State can “reasonably establish the identity and integrity
of the evidence, the trial court should admit the item into evidence.” Id.

              Here, jailer Travis Cline testified that he processed the defendant into the
Overton County Jail after his arrest. As part of that process, Mr. Cline had the defendant
remove his clothing and boots and don a jail-issued jumpsuit. Mr. Cline testified that he gave
the defendant’s clothing and boots to a jail employee named Teresa or Tessa McKelvy. Mr.
Cline said that he saw Ms. McKelvy place the items into a paper bag, and he identified the
bag and Ms. McKelvy’s signature on the bag. Agent Huntley collected the bag, in its original
condition and bearing Ms. McKelvy’s signature, and took it to the TBI laboratory, where
Agent Miles opened it and removed the items for forensic examination. No evidence
suggested that either the bag or the items had been tampered with in any way. Although Ms.
McKelvy did not testify at trial, the other evidence presented sufficiently established the
chain of custody of the defendant’s clothing and boots, and the trial court did not err by
admitting the evidence or the testimony regarding the tests performed on them.

                                        III. Sufficiency

              Finally, the defendant challenges the sufficiency of the convicting evidence for
his convictions of first degree premeditated murder, claiming that the State failed to establish
premeditation.2 The State contends that the evidence was sufficient to support the
convictions.

               We review the defendant’s challenge to the sufficiency of the evidence mindful
that our standard of review is whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443
U.S. 307, 324 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003).
“[D]irect and circumstantial evidence should be treated the same when weighing the
sufficiency of such evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

               When examining the sufficiency of the evidence, this court should neither


       2
         The defendant does not challenge the sufficiency of the convicting evidence for his other
convictions, including the convictions of the first degree felony murder of Vida Clark.

                                              -14-
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact.
Winters, 137 S.W.3d at 655. Questions concerning the credibility of the witnesses, the
weight and value of the evidence, as well as all factual issues raised by the evidence are
resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Significantly, this court must afford the State the strongest legitimate view of the evidence
contained in the record as well as all reasonable and legitimate inferences which may be
drawn from the evidence. Id.

               As charged in this case, “[f]irst degree murder is . . . [a] premeditated and
intentional killing of another.” T.C.A. § 39-13-202(a)(1) (2006).

              As used in the statute,

              “premeditation” is an act done after the exercise of reflection
              and judgment. “Premeditation” means that the intent to kill
              must have been formed prior to the act itself. It is not necessary
              that the purpose to kill pre-exist in the mind of the accused for
              any definite period of time. The mental state of the accused at
              the time the accused allegedly decided to kill must be carefully
              considered in order to determine whether the accused was
              sufficiently free from excitement and passion as to be capable of
              premeditation.

Id. § 39-13-202(d).

              Noting that “[p]roof of premeditation is inherently circumstantial,” this court
has observed that “[t]he trier of fact cannot speculate what was in the killer’s mind, so the
existence of premeditation must be determined from the defendant’s conduct in light of the
circumstances surrounding the crime.” State v. Gann, 251 S.W.3d 446, 455 (Tenn. Crim.
App. 2007). Thus, in evaluating the sufficiency of proof of premeditation, the appellate court
may look to the circumstances surrounding the killing. See, e.g., State v. Bland, 958 S.W.2d
651, 660 (Tenn. 1997); State v. Coulter, 67 S.W.3d 3, 72 (Tenn. Crim. App. 2001). Such
circumstances may include “the use of a deadly weapon upon an unarmed victim; the
particular cruelty of the killing; declarations by the defendant of an intent to kill; evidence
of procurement of a weapon; preparations before the killing for concealment of the crime[;]
and calmness immediately after the killing.” Bland, 958 S.W.2d at 660.

              In this case, the evidence established that the defendant, angry about the
construction of a fence across the driveway to his house, told Mr. Brockette that he would
kill his mother and brother if the fence remained when he finished work. When the

                                             -15-
defendant returned home, he outfitted himself in a field jacket and boots and armed himself
with a 12-gauge shotgun and a .22-caliber rifle. He then went to the house his mother, Vida
Clark, shared with his brother, Roy Clark, where he gained entry by firing the shotgun at the
doorknob. Once inside, he shot Roy Clark once from behind, inflicting a fatal wound to Roy
Clark’s abdomen. He then shot Vida Clark once in the arm and then a second time in the
back of the neck. At some point, the defendant used gasoline to set fire to Vida Clark’s
house. After killing the victims and setting the house ablaze, the defendant returned to his
home, where he telephoned his wife to say that he had taken care of the issue with the fence
and that authorities would never “take him alive.” When police arrived, the defendant fired
upon them from his position inside his residence. After a period of negotiation, the
defendant surrendered to police. The defendant’s planning, use of a weapon on the unarmed
victims, and calmness after the killings all support a finding that he premeditated the murders
of Vida and Roy Clark. As such, the evidence was sufficient to support his convictions of
first degree premeditated murder.

                                         Conclusion

               The trial court erred by permitting the State to depose Mr. Brockette, and the
admission of his videotaped deposition violated both Tennessee Rule of Criminal Procedure
15 and the Confrontation Clause. The error, however, can be classified as harmless beyond
a reasonable doubt given the overwhelming proof of the defendant’s guilt. The State
established a sufficient chain of custody for the defendant’s clothing and boots. Finally, the
evidence was more than sufficient to support the defendant’s convictions of the first degree
premeditated murder of Vida and Roy Clark. Accordingly, the judgments of the trial court
are affirmed.

                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




                                             -16-
