                                                   FILED
          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE
                                                      July 15, 1999
                           APRIL 1999 SESSION
                                                  Cecil W. Crowson
                                                 Appellate Court Clerk
STATE OF TENNESSEE,                )
                                   )
             Appellee,             )     C.C.A. No. 01C01-9802-CC-00068
                                   )
vs.                                )     Robertson County
                                   )
LESLIE BRIAN WILLIS,               )     Hon. Robert W. Wedemeyer, Judge
                                   )
             Appellant.            )     (Felony Murder)
                                   )


FOR THE APPELLANT:                       FOR THE APPELLEE:

MICHAEL R. JONES                         PAUL G. SUMMERS
District Public Defender                 Attorney General & Reporter
110 Sixth Ave. West
Springfield, TN 37172                    KIM R. HELPER
                                         Assistant Attorney General
WILLIAM UNDERHILL                        425 Fifth Ave. N., 2d Floor
Attorney at Law                          Nashville, TN 37243-0493
512 S. Main St.
Springfield, TN 37172                    JOHN WESLEY CARNEY, JR.
                                         District Attorney General

                                         ARTHUR F. BEIBER
                                         B. DENT MORRISS
                                         Asst. District Attorneys General
                                         204 Franklin St., Ste. 200
                                         Clarksville, TN 37040-3420



OPINION FILED:________________

REVERSED & REMANDED

JAMES CURWOOD WITT, JR., JUDGE
                                     OPINION

              The defendant, Leslie Brian Willis, appeals from his conviction of

felony murder committed during the perpetration of attempted rape of Jamie

Marable. The defendant received his conviction at the conclusion of a jury trial in

the Robertson County Criminal Court. The same jury acquitted the defendant of

premeditated first degree murder.       The defendant is presently serving a life

sentence in the Department of Correction. In this appeal, Willis raises numerous

issues for our review:

       1.     Whether the trial court improperly allowed evidence that
              Willis had raped another woman in order to prove his
              intent to commit attempted rape of the victim.

       2.     Whether the trial court should have granted his motion for
              judgment of acquittal on Count 1, felony murder.

       3.     Whether the evidence sufficiently supports a finding of guilt
              beyond a reasonable doubt of felony murder.

       4.     Whether the trial court should have granted a mistrial
              based upon various allegations of prosecutorial
              misconduct.

       5.     Whether the trial court should have granted the defense a
              continuance because the state failed to provide discovery
              information pertaining to two potential witnesses.

       6.     Whether the trial court improperly admitted photographs
              of the victim's body in the location where it was
              discovered.

       7.     Whether the trial court should have excluded the
              testimony of an expert witness from the FBI based upon
              the state's failure to provide the defense with the
              witness' written report.

       8.     Whether the trial court should have excluded testimony
              of a TBI agent that Willis threatened to snap his neck,
              that Willis was shaking and trembling when he was
              shown a screwdriver the agent believed to be the
              murder weapon, and that Willis "lawyered up" during
              interrogation.1

Having reviewed the record, the briefs and the oral arguments of the parties, and


       1
        Our discussion of the issues in this opinion is in a different order than
their presentation in the parties' briefs.

                                          2
the law, we reverse Willis' felony murder conviction due to insufficient evidence of

the underlying felony of attempted rape and remand for a new trial on the lesser

offense of second degree murder.



              The state presented evidence at trial2 that on September 8, 1990, 19-

year-old Jamie Marable embarked upon an evening of socializing with friends in

various Clarksville bars. At the Golden Jukebox, she encountered Willis, with whom

she was previously acquainted. Willis purchased mixed drinks for Marable and a

friend. Sometime around midnight, Willis and Marable left the Golden Jukebox to

go to another establishment, Joe B.'s. At Joe B.'s, Willis paid the cover charge for

both himself and Marable. After fifteen to twenty minutes, the two departed Joe B.'s

together and returned to the Golden Jukebox.



              Around 2:00 a.m., Marable was outside the Golden Jukebox talking

with acquaintances when four women arrived who spoke with Marable. Teresa

Carpenter testified that when the defendant pulled out of the parking lot, Marable

said, "There goes my ride." Tracey Presley heard Marable express distress that

"Brian" left her and announce she was waiting on a ride. Cindy McClure heard

Marable say she was waiting on her ride and assumed this was someone named

Brian about whom Marable had spoken earlier in the conversation.



              Teresa Carpenter went inside the Golden Jukebox for a short period

of time. When she returned to the parking lot, she saw Willis’ truck pulling out of the

parking lot a second time. She could not see whether Marable was in the vehicle;



       2
        The evidence is summarized here in the light most favorable to the state.
The trial of this case was lengthy. Approximately 40 witnesses testified, and
some of the testimony, particularly of the factual witnesses, cannot be
reconciled. To the extent that other evidence is relevant to issues on appeal,
such evidence is discussed with the issue to which it pertains.

                                          3
however, she did not see Marable in the parking lot.



              The following day, a Sunday, Marable’s mother became concerned

that her daughter had not come home. She notified law enforcement. That same

Sunday morning, William Alley, a farmer whose property straddles the Montgomery

and Robertson County borders in the Port Royal area, noticed tire tracks from a full-

sized vehicle on his property near an area of road construction. The tire tracks

appeared to have come from the direction of Clarksville. Mr. Alley had not seen the

tracks the previous day.



              On Tuesday evening, Mr. Alley drove by the same site and noticed a

foul odor. The following day, he again noticed the odor and decided to investigate,

which led him to the discovery of Jamie Marable’s decomposing body.



              Doctor Gretel Harlan, a forensic pathologist, testified that Jamie

Marable died close in time to her disappearance around 2:20 or 2:30 a.m. on

September 9, 1990. The cause of death was puncture type stab wounds to the

neck and chest. Two of the wounds penetrated the third cervical vertebra, leaving

an impression of the murder weapon. The impressions had a distinctive, six-pointed

star shape. Doctor Harlan opined that these two stab wounds were an "excellent

match" with a size 10 torque screwdriver. Doctor Harlan also testified that when she

received the victim's body for examination, the clothing was in the correct locations,

including the underwear, although the crop top might have been pulled up slightly.



              TBI Agent Steve Scott, whose area of expertise includes tool mark

identification, examined the impressions in the victim's vertebra with sizes 10 and

15 torque screwdrivers. He could not definitely conclude that one of the two

screwdrivers made the impressions; however, the injury was more consistent with

                                          4
a size 10 than a size 15.



              Shortly after the discovery of the victim's body, searches were

conducted of the defendant’s truck, apartment and room at his parents’ home.

Among the items recovered from the defendant's apartment was a size 15 torque

screwdriver. Likewise, physical evidence was collected from the victim’s body and

her clothing. The evidence at trial revealed that nylon fibers found on the victim’s

clothing, including a fiber taken from her panties, was consistent with the

microscopic characteristics and optical properties of a carpet standard sample from

the defendant’s truck.



              The officers interviewed the defendant about his interaction with the

victim on the night of her death. His statements were, to some extent, contradictory.

In pertinent part, in a statement given September 13, 1990, the defendant denied

that the victim had accompanied him from the Golden Jukebox to Joe B.'s and back

to the Golden Jukebox on September 8. He claimed he had gone home alone

around 2:30 a.m. In a statement given September 20, 1990, W illis specifically

denied that Marable had been in his truck on the night of her disappearance.

Former District Attorney General Patrick McCutchen testified that he interviewed the

defendant on March 11, 1993. On that date, Willis acknowledged that Marable had

been in his truck on the evening in question.



              According to Mike Greenfield, the defendant's employer in September

1990, the defendant had worked at the road construction site near the area where

the victim’s body was discovered. Greenfield recalled that the job was begun on a

Wednesday evening and was completed on a Monday. Although he was not sure

of the date, September 10 sounded "reasonable" to him. Furthermore, Greenfield

testified that the defendant was allowed to use the shop equipment at Greenfield

                                         5
Trucking, which included various torque screwdrivers.



              Crystal Bickford, one of the defendant's neighbors at his Clarksville

apartment, testified that the defendant told her in approximately June 1990 that he

took all of his girlfriends to Port Royal. Bickford assumed this was where he would

take them to "park."



              Two witnesses testified that Willis made statements indicating he had

killed the victim. Kelly Jenkins, who was Willis’ co-worker in 1990, testified that he

and Willis were drinking beer together when the subject came up of Willis being a

suspect in the Marable murder. Willis told Jenkins that they would never prove

anything and get a conviction. Jeff Fletcher, a friend of Willis, testified that he and

Willis went riding around to smoke marijuana and drink alcohol in the spring of

1994. He testified that Willis would get agitated and angry when he was drinking,

and on that occasion Willis got mad for no reason. Willis told Fletcher that he had

killed one and was not scared to kill another. When Fletcher inquired who Willis

had killed, Willis responded that he had killed the girl in Clarksville. Willis also told

Fletcher he would stab his guts out, too, from which Fletcher inferred that Willis had

also stabbed the girl in Clarksville.



              Barbara Williams, who worked with Willis’ sister Robin in a Piggly

Wiggly store, testified that she was present when Peggy Shemwell, the defendant’s

girlfriend, came into the store in May 1991 to show Robin the ring the defendant

gave her. Williams described the ring as gold, with black onyx and a little diamond.

When she was shown a photograph of Marable wearing a ring given to her by her

grandmother, she said the ring she had seen on Shemwell's hand looked like the

one in the photograph. Other evidence established that Marable always wore the

black onyx ring, but it was not recovered with her body.

                                           6
              To contradict the state's case, the defense offered evidence that

Marable had a verbal altercation in the Golden Jukebox parking lot at approximately

2:30 a.m. with a woman who got out of a Pinto station wagon and began yelling and

cursing Marable. After this altercation, the witness who had observed it went inside

the Golden Jukebox to get a cup of coffee. When she returned seconds later, both

the Pinto and Marable were gone.3 The defense also offered evidence that Marable

had been involved with Raven "Snake" Frazier and that Frazier's live-in girlfriend,

Brenda Huggins, confronted Marable in the parking lot of the Golden Jukebox on

September 8 and threatened to hurt her if the behavior continued.4 The defense

also offered the testimony of Robin Wheeler, the defendant's sister, and Peggy

Shemwell to contradict Barbara Williams' testimony that the defendant had given

Shemwell a black onyx ring.5



              At the conclusion of the proof, the jury retired to consider the

defendant's guilt of count one, felony murder during the attempt to commit rape, and

count two, first degree premeditated murder. After deliberating, the jury returned

a verdict of guilty on count one and not guilty on count two. The trial court imposed

a life sentence.




       3
       Apparently, the state effectively diminished the credibility of this witness.
The witness testified that TBI Agent Mike Breedlove took her to a residence to
see a Pinto station wagon, which she identified as the one she had seen. Agent
Breedlove testified that he had not taken this witness to identify a vehicle.
       4
         The state offered evidence that Huggins had confronted Marable, but that
it had been on another date at another location. Huggins testified for the state
and denied having been in the Golden Jukebox parking lot on September 8. A
second individual who the defense alleged had been present with Huggins
during the confrontation testified for the state on rebuttal. She admitted being at
the Golden Jukebox on the night in question, but she denied being in the parking
lot with Huggins, Frazier and Marable.
       5
        Shemwell also testified that law enforcement officers had offered her
money in exchange for testimony inculpating the defendant. These officers took
the stand on rebuttal and denied this allegation.

                                         7
                 Against this factual backdrop, the defendant appeals.




                                            I

                 First, we consider whether the trial court improperly allowed evidence

that Willis had raped another woman in order to prove his intent to commit

attempted rape of the victim.6 The use of this evidence was limited to proof of the

underlying felony of attempted rape, which was necessary to support a conviction

of felony murder. A discussion of this issue is germane despite our reversal of the

felony murder conviction as discussed in section II below because its erroneous

admission affects our determination that the case should be remanded for a new

trial on the lesser offense of second degree murder.



                 The evidence in question consists of the testimony of a young woman,

S.C.,7 that she encountered Willis in December 1985. He asked her if she would

like to "get high," and she responded affirmatively. She got into Willis' vehicle, and

the two drove away. The defendant's demeanor changed. When S.C. asked to be

taken back to her car, the defendant said "shut up b----." The defendant drove to

a secluded location. He ordered S.C. to disrobe and said, "well you've f-----

everyone else, so you're going to f--- me now." He forced her at knife point to

perform oral sex on him, although he never became aroused. The defendant told

S.C. that he could not decide whether to kill her. He said he thought he should kill

her because she would talk about the incident. S.C. repeatedly promised she would

never reveal anything. He said that if he killed her and dumped the body no one


       6
        We consider this issue prior to our discussion of the sufficiency of the
evidence because an understanding of the trial court's admission of prior bad act
evidence pursuant to Rule 404(b) is necessary for an understanding of the
sufficiency analysis that follows. See infra, § II.
       7
           The victim's name is not relevant to the issue before the court.

                                            8
would ever connect him to the crime because no one would believe he would be

with someone like S.C. The defendant told her that it would be foolish to go to the

police because no one would ever believe a slut like her. The defendant said that

if he were suspected, his father would take care of it for him.



              Eventually, the defendant seemed to tire and took S.C. back to her

car. At one point on the return trip, he pushed S.C. down in the seat so she would

not be seen by some people they passed.



              As a general proposition, evidence of a defendant's prior crimes,

wrongs or acts is not admissible to prove that he committed the crime in question.

Tenn. R. Evid. 404. The rationale underlying the general rule is that admission of

such evidence carries with it the inherent risk of the jury convicting the defendant

of a crime based upon his bad character or propensity to commit a crime, rather

than the conviction resting upon the strength of the evidence. State v. Rickman,

876 S.W.2d 824, 828 (Tenn. 1994). The risk is greater when the defendant's prior

bad acts are similar to the crime for which the defendant is on trial. Id.; see also

State v. McCary, 922 S.W.2d 511, 514 (Tenn. 1996). Nevertheless, evidence of a

defendant's prior crimes, wrongs or acts may be admissible where it is probative of

material issues other than conduct conforming with a character trait. Tenn. R. Evid.

404(b). In Tennessee, evidence of a criminal defendant’s character may become




admissible when it logically tends to prove material issues which have been divided

into three categories: (1) the use of “motive and common scheme or plan” to

establish identity, (2) to establish the defendant’s intent in committing the offense

on trial, and (3) to “rebut a claim of mistake or accident if asserted as a defense.”

                                         9
McCary, 922 S.W.2d at 514. In order for such evidence to be admitted, the rule

specifies three prerequisites:

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

Tenn. R. Evid. 404(b). A fourth prerequisite to admission is that the court find by

clear and convincing evidence that the defendant committed the other crime. Tenn.

R. Evid. 404, Advisory Comm'n Comment; State v. DuBose, 953 S.W.2d 649, 654

(Tenn. 1997); State v. Parton, 694 S.W.2d 299, 303 (Tenn. 1985).



              In reviewing a trial court's decision to admit or exclude evidence, an

appellate court may disturb the lower court's ruling only if there has been an abuse

of discretion. DuBose, 953 S.W.2d at 652; State v. Baker, 785 S.W.2d 132, 134

(Tenn. Crim. App. 1980). Where the trial court has been called to pass upon the

admissibility of evidence other crimes, wrongs or acts under Rule 404(b), its

determination is entitled to deference when, as in the case at bar, it has

substantially complied with the procedural requisites of Rule 404(b). See DuBose,

953 S.W.2d at 652.



In the present case, the trial court specifically ruled that the prior rape evidence

could be admitted as proof on the issue of intent.8 In its brief, the state argues that


       8
        The supreme court has said that "other crime" evidence of a sexual
nature is not admissible under Rule 404(b) to prove a defendant's intent in
committing various sex crimes, including rape, because intent is not an element
of proof of the crimes. McCary, 922 S.W.2d at 513-14; accord Parton, 699
S.W.2d at 303 (aggravated rape) (prior to enactment of 1989 Criminal Code and
adoption of Tennessee Rules of Evidence); State v. Hooten, 735 S.W.2d 823,
824 (Tenn. Crim. App. 1987) (same as Parton). On the other hand, this case
involves an alleged attempted rape, and intent is an element of criminal attempt.
See State v. Kimbrough, 924 S.W.2d 888, 890 (Tenn. 1996).

                                          10
S.C.'s testimony "was relevant to Willis' intent in driving off with Jamie Marable from

the Golden Jukebox in September 1990 to a location known as a parking or party

spot." However, the state’s argument is diminished by the fact that this is not a

case where intent is suggested by some logical progression between the two cases.

See, e.g., State v. Paul Carr Moss, Jr., No. 01C01-9803-CC-00118, slip op. at 18-19

(Tenn. Crim. App., Nashville, June 1, 1999) (approving use of evidence of sexual

contact between defendant and his minor daughter in order to demonstrate

defendant's intent in killing wife so as to regain access to the daughter); State v.

Hayes, 899 S.W.2d 175 (Tenn. Crim. App. 1995) (approving use of the defendant’s

unindicted acts of kissing daughter-victim in order to show element of intentional

touching of victim’s breast for purpose of sexual arousal or gratification). Here, the

state asked the jury to believe that the defendant intended to rape the victim

because five years earlier he raped a female victim in Kentucky. There is no logical

progression nor any cause-and-effect relationship, only the extrapolation that, if the

defendant intended rape of a female in 1985, he must be the sort of person who

intended to rape Jamie Marable. Propensity evidence by any other name is still

propensity evidence, and evidence that is propensity evidence only is inadmissible.

Tenn. R. Evid. 404(a), (b); see also Tenn. Rule Evid. 404(b)(2) (character evidence

must be relevant to a material issue “other than conduct conforming with a character

trait”). The prior rape has no connection to the present case without applying the

convention “if he did it before, he probably did it this time.” The character trait

provides the basis for inferring intent.



              Even though the trial court did not rely upon nor did the state argue

identity as an alternative basis for admission of the evidence, we have examined

identity because the killer’s intent to rape is only meaningful if the identity of the

killer is established. With identity at issue, prior-crime proof that pointed to the

defendant in order to show the defendant’s intent also served to implicate the

                                           11
defendant as the perpetrator. Under a common scheme or plan theory, identity may

be suggested through proof of crimes with similar, but distinctive features. McCary,

922 S.W.2d at 514. Indeed, in the present case, both crimes involved a young

woman being transported to a remote location. In 1985, the defendant threatened

his victim with a knife, and in 1990, Jamie Marable was stabbed to death with a

screwdriver.



               However, the problem with recognizing and using identity as a basis

for admitting the prior rape evidence in the present case is that the similarities

between the two incidents are very meager. In State v. Davis, 706 S.W.2d 96

(Tenn. Crim. App. 1985), the defendant was convicted of raping a young blonde

female. Because his identity as the rapist was at issue, the state utilized evidence

that Davis committed a previous rape of a young blonde female in Florida. Id. at 99-

100. In each case, the perpetrator abducted the victim by grabbing her hair and

forcing her into his vehicle, and then he drove her to a remote location where

vaginal rape, at least, was preceded by the rapist forcing the victim to perform

fellatio to facilitate his erection. See id. Each victim testified that she saw a jar of

Vaseline in the vehicle in which she was abducted. Id. Despite these similarities,

this court held, “[T]here was nothing so unique about the method of commission of

the two crimes as to stamp them as the work of the same individual.” Id. at 100.

The admission of the evidence of the prior rape was reversible error. Id. A fortiori,

there are no distinctive features about the two incidents in the present case which

would “stamp them as the work of the same individual.”9 Id.




       9
         When the state advances the use of evidence of a prior crime committed
by the defendant that is similar in nature to the crime on trial and yet there are no
similarities of “distinctive” methods shared by the two crimes, see Davis, 706
S.W.2d at 99, the error is exacerbated because the similar nature of the crimes
only heightens the prejudice to the defendant on trial. See Rickman, 876
S.W.2d at 828; McCary, 922 S.W.2d at 514.

                                          12
                 The evidence of the 1985 rape was inadmissible because it essentially

was probative of no material issue other than showing the defendant acted "in

conformity with the character trait." Tenn. R. Evid. 404(b). Additionally, the danger

of unfair prejudice was substantial. See id. The narration of the rape incident was

highly prejudicial in and of itself, and this prejudice was only exacerbated in the

1985 victim's narration of the defendant's post-rape comments in which he mulled

whether to kill the 1985 victim. This part of the evidence is not relevant to the

defendant's asserted proclivity to rape and needlessly increased the prejudicial

effect of the testimony.



                  For all of the above reasons, we conclude that the trial court erred

when it admitted the evidence of the prior rape. The question which remains is what

effect the erroneous admission of this evidence had on the jury. The extremely

prejudicial character of this evidence coupled with the jury's finding of guilt of felony

murder despite legally insufficient evidence of attempted rape, as discussed in

section II below, leads us to conclude that the error more probably than not affected

the verdict. See Tenn. R. App. P. 36(b); cf. State v. Ron Puglisi, No. 01C01-9205-

CC-00166 (Tenn. Crim. App., Nashville, July 21, 1994) (admission of sexually

oriented material for purpose of demonstrating defendant's intent to commit

aggravated sexual battery was reversible error). As such, the defendant should

receive a new trial on the lesser offense of second degree murder10 at which this

evidence is excluded. Accord State v. Bordis, 905 S.W.2d 214 (Tenn. Crim. App.

1995) (remand for new trial on lesser grade offense where evidence insufficient to

support conviction of greater offense and prejudicial trial error committed).



                                            II



       10
            See infra, § II.

                                           13
              We move next to consideration of two related issues, whether the trial

court should have granted the motion for judgment of acquittal and whether the

evidence is sufficient to sustain the defendant's conviction of felony murder.



              A motion for judgment of acquittal is a question of the sufficiency of

the state's evidence of the defendant's guilt of the crime charged. State v. Hall, 656

S.W.2d 60, 61 (Tenn. Crim. App. 1983). Accordingly, the standard for determining

whether a motion for judgment of acquittal should be granted is analogous to the

standard employed in reviewing the sufficiency of the convicting evidence after a

conviction has been imposed. See State v. Jerry Burke, No. 02C01-9510-CR-

00319, slip op. at 10-11 (Tenn. Crim. App., Jackson, Dec. 12, 1996), perm. app.

denied (Tenn. 1997); State v. Adams, 916 S.W.2d 471, 473 (Tenn. Crim. App.

1995).



              When an accused challenges the sufficiency of the evidence, an

appellate court’s 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. Jackson v. Virginia,

443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan, 698 S.W.2d

63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). This rule applies to findings of guilt

based upon direct evidence, circumstantial evidence, or a combination of direct and

circumstantial evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App.

1990).



              Moreover, a criminal offense may be established exclusively by

circumstantial evidence. Duchac v. State, 505 S.W.2d 237 (Tenn. 1973); State v.

Jones, 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995); State v. Lequire, 634 S.W.2d

608 (Tenn. Crim. App. 1987). However, before an accused may be convicted of a

                                          14
criminal offense based upon circumstantial evidence alone, the facts and

circumstances "must be so strong and cogent as to exclude every other reasonable

hypothesis save the guilt of the defendant." State v. Crawford, 225 Tenn. 478, 470

S.W.2d 610 (1971); Jones, 901 S.W.2d at 396.        In other words, "[a] web of guilt

must be woven around the defendant from which he cannot escape and from which

facts and circumstances the jury could draw no other reasonable inference save the

guilt of the defendant beyond a reasonable doubt." Crawford, 470 S.W.2d at 613;

State v. McAfee, 737 S.W.2d 304, 305 (Tenn. Crim. App. 1987).



              In determining the sufficiency of the evidence, this court should not

reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779

(Tenn. Crim. App. 1990). 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). Nor may this court substitute its inferences for those drawn by the

trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d

856, 859 (1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On

the contrary, this court must afford the State of Tennessee 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. Cabbage, 571 S.W.2d at 835.



              On the date the victim was killed, first degree felony murder was

defined as "[a] reckless killing of another committed in the perpetration of, or

attempt to perpetrate any first degree murder, arson, rape, robbery, burglary, theft,

kidnapping or aircraft piracy[.]"   Tenn. Code Ann. § 39-13-202(a)(2) (1991)

(amended 1995).



              On the relevant date, the definition of rape included "unlawful sexual

                                         15
penetration of a victim by the defendant or of the defendant by a victim . . . [where]

[f]orce or coercion is used to accomplish the act." Tenn. Code Ann. § 39-13-

503(a)(1) (1997).11 With respect to criminal attempt, the Code provides

       A person commits criminal attempt who, acting with the kind of
       culpability otherwise required for the offense:
       (1)    Intentionally engages in action or causes a result that would
       constitute an offense if the circumstances surrounding the conduct
       were as the person believes them to be;
       (2)    Acts with intent to cause a result that is an element of the
       offense, and believes the conduct will cause the result without further
       conduct on the person's part; or
       (3)    Acts with the intent to complete a course of action or cause a
       result that would constitute the offense, under the circumstances
       surrounding the conduct as the person believes them to be, and the
       conduct constitutes a substantial step toward the commission of the
       offense.

Tenn. Code Ann. § 39-12-101(a)(1)-(3) (1997).



              In the light most favorable to the state, there is sufficient circumstantial

evidence that Willis knowingly killed the victim. The victim referred to the defendant

as her "ride." She had been in the parking lot of the Golden Jukebox around 2:30

a.m., and after the defendant's truck was seen leaving the parking lot, the victim

was not seen again. The victim's body was found in a remote location near the

defendant's worksite. Moreover, the worksite was in the Port Royal area, where the

defendant had told a neighbor he took all his girlfriends. Tire tracks from a full-size

vehicle were seen in this location the morning after the victim's disappearance, and

the defendant drove a Chevrolet Silverado pickup truck. The defendant had access



       11
         The trial court instructed the jury that rape could be accomplished by
force and coercion. The court also included as an alternative means of
committing the crime "that the sexual penetration was accomplished without the
consent of the alleged victim and the defendant knew, or had reason to know, at
the time of the penetration that the alleged victim did not consent." The latter
means of committing the crime was not added to the rape statute until 1995,
several years after the victim's death. See Tenn. Code Ann. § 39-13-503(a)(2)
(1997); see also Tenn. Pub. Acts 1995, ch. 484, § 3. Because, for the reasons
discussed below, we find the proof of an attempted rape insufficient to support a
conviction of felony murder, it is not necessary for us to determine whether the
erroneous instruction was prejudicial.

                                          16
to torque screwdrivers. Initially, the defendant was untruthful with investigators

about whether the victim had been in his truck on the night of her disappearance;

however, later he admitted she had been in the truck. The defendant made

statements to acquaintances indicating he had killed the victim. His girlfriend was

seen wearing a ring like the victim’s that had not been recovered from the victim's

body. The girlfriend was overheard telling the defendant's sister that the ring had

been a gift from the defendant.



              However, even in the light most favorable to the state, there is

insufficient evidence that the defendant recklessly killed the victim in the attempt to

perpetrate a rape. The state offered proof that carpet fibers were found on the

victim's clothing, including a fiber found on her panties.        These fibers were

consistent with the carpet in the defendant's truck. There was evidence the victim's

shoes were removed, her denim mini skirt had a horizontal wrinkling pattern and her

crop top was at least somewhat out of place. There was no forensic proof of an

attempted sexual assault; in fact, there was, at best, minimal evidence from which

the occurrence of a struggle might be inferred.



              In our review of the evidence in the light most favorable to the state,

we have not overlooked the evidence that the defendant committed a rape in his

vehicle in 1985, even though we have concluded in section I of this opinion that

such evidence was erroneously admitted. See State v. Longstreet, 619 S.W.2d 97,

100-01 (Tenn. 1981); State v. Bernard T. Anderson, No. 02C01-9710-CR-00394,

slip op. at 22 (Tenn. Crim. App., Jackson, Apr. 23, 1999). As noted above, the facts

and circumstances of a case built entirely upon circumstantial evidence "must be

so strong and cogent as to exclude every other reasonable hypothesis save the guilt

of the defendant." Crawford, 225 Tenn. at 484, 470 S.W.2d at 613; Jones, 901

S.W.2d at 396. The proof presented at trial, even giving the state the benefit of the




                                          17
improperly admitted evidence, fails to rise to that level.12 The evidence supports a

logical inference that the defendant attempted to rape the victim before killing her.

Equally, the evidence supports a logical inference that there was no sexual

encounter at all. What the evidence does not support is an inference of the

defendant's guilt beyond a reasonable doubt, to the exclusion of every other

reasonable hypothesis. Thus, the felony murder conviction, based upon a reckless

killing in the attempt to perpetrate a rape, cannot stand.



              The question of whether the evidence was sufficient to support a

verdict of guilt of premeditated murder is beyond our realm because the jury

acquitted the defendant of that charge. However, we may consider whether the

evidence is sufficient to support a conviction of second degree murder as a lesser

offense of first degree felony murder. In that regard, we find the evidence sufficient


       12
         Initially, the question of how to utilize the improperly admitted evidence
in evaluating the sufficiency of the evidence appears to hinge on the question of
whether the evidence is relevant. Prior misconduct evidence that suggests the
defendant had a propensity to commit the offense on trial has been
characterized as irrelevant. See, e.g., Rickman, 876 S.W.2d at 827 (“evidence
that the defendant had committed some other crime wholly independent of that
for which he is charged, even though it is a crime of the same character, is
usually not admissible because it is irrelevant”) (quoting Bunch v. State, 605
S.W.2d 227, 229 (Tenn. 1980)) (emphasis in Bunch); State v. Tizard, 897
S.W.2d 732, 744 Tenn. Crim. App. 1994) (in sexual battery prosecution evidence
of defendant’s possession of pornographic materials which depicted sexual acts
similar to the acts for which the defendant was on trial held to be “not rationally
related to the issue of the defendant’s criminal intent”); State v. Dies, 829
S.W.2d 706, 709 (Tenn. Crim. App. 1991) (“evidence of other crimes is irrelevant
and inadmissible”). To the contrary, other authorities have seen relevance in
evidence of this nature. See Otis v. Cambridge Mut. Fire Ins., 850 S.W.2d 439,
442 (Tenn. 1992) (frequent rejection of inquiry into character not due to
irrelevance, but to likelihood of jury's over reliance on this evidence); Neil P.
Cohen, et al., Tennessee Law of Evidence 161-62 (3d ed. 1995) (“Evidence of a
person’s character can be helpful to a trier of fact. If someone has the character
“of a thief,” the trier of fact could use this to determine whether the person
shoplifted on a certain afternoon.”); Robert Banks, Jr. & Melissa Maravich,
Relevance: The Tennessee Balancing Act, 57 Tenn. L. Rev. 33, 41-42 (1989)
(policy underlying Tenn. R. Evid. 404 is not that character evidence is precluded
based upon relevance, but that such evidence results in jury prejudicing
defendant on the charged offense because of his bad character). However,
resolution of the tension between these opposing viewpoints is not necessary in
the case at bar because appraisal of all of the evidence, including the evidence
of the prior rape, fails to exclude every possibility other than the guilt of the
defendant.

                                         18
to support a finding of the defendant's guilt beyond a reasonable doubt.



              Often this court will modify a conviction of a greater offense of which

the evidence is insufficient to a lesser offense of which the evidence is sufficient.

See, e.g., State v. George Blake Kelly, No. 01C01-9610-CC-00448 (Tenn. Crim.

App., Nashville, Oct. 13, 1998) (second degree murder conviction dismissed for

insufficient evidence and lesser grade conviction of vehicular homicide imposed).

The present case is complicated, however, by the erroneous admission of highly

prejudicial prior bad act evidence as discussed above. In addition, although second

degree murder is a lesser grade of felony murder, it would require a finding of a

knowing killing, whereas the jury here, under the then applicable felony murder

statute, found the defendant guilty of a reckless killing. We believe the better

course is to reverse the defendant's conviction of felony murder and remand for a




                                         19
new trial on the lesser offense of second degree murder. Accord Bordis, 905

S.W.2d 214.



                                          III

              Next, Willis claims that the trial court improperly admitted photographs

of the crime scene. Generally, these four photographs13 depict the decaying body

of the victim in the brushy location where it was discovered. Willis argues that these

photographs do not show the position of the body at the time of the crime,

demonstrate the circumstances surrounding the offense, or illustrate the struggle

of the victim or the ferocity of the attack. Rather, he claims, their sole value to the

prosecution was to inflame the jury. On the other hand, the state defends the trial

court's admission of these photographs as probative of (1) the time of death as

demonstrated by the level of decomposition present and (2) whether an attempted

rape occurred as demonstrated by the positioning of the victim's clothing.



              Technically, consideration of this issue has been pretermitted by our

finding that the evidence was insufficient to support the defendant's conviction of

felony murder. However, because there will be a new trial on second degree

murder, we take this opportunity to address the guidelines for admission of crime

scene photographs.



              In determining whether photographs should be admitted, the trial court

must determine, first, whether the photograph is relevant. State v. Banks, 564

S.W.2d 947, 949 (Tenn. 1978); Tenn. R. Evid. 401. "'Relevant evidence' means

any evidence having any tendency to make the existence of any fact that is of




       13
        The defendant complains of exhibits 5a, 5b, 5c, 5d and 5e; however, the
record on appeal contains no exhibit 5e.

                                          20
consequence to the determination of the action more probable or less probable than

it would be without the evidence." Tenn. R. Evid. 401. If the trial court deems the

photograph to be relevant, it may then allow its admission if its probative value is not

"substantially outweighed by the danger of unfair prejudice." Tenn. R. Evid. 403.

In this regard, photographic depictions of murder victims carry the danger of

inherent prejudice. See Banks, 564 S.W.2d at 951. In order to assess the

prejudicial effect of the admission of such photographs, the supreme court has said

the trial judge is to consider

       the value of the photographs as evidence, that is, their accuracy and
       clarity, and whether they were taken before the corpse was moved,
       if the position and location of the body when found is material; the
       inadequacy of testimonial evidence in relating the facts to the jury;
       and the need for the evidence to establish a prima facie case of guilt
       or to rebut the defendant's contentions.

Id. On appeal, a trial court's decision to admit a photographic exhibit is reviewable

for abuse of discretion. Id. at 949.



              The photographs in question are unpleasant. They show evidence of

decomposition of the body. There is also evidence of significant entomological

activity. Three of the photographs are not clearly focused, so their unpleasant

character is diminished. The more focused photograph shows the victim's body

from the waist down. Decomposition, entomological activity, and possible animal

activity affected the medical examiner's ability to render opinions regarding the

condition of the body at the time of death as well as her ability to estimate the time

of death itself. The time of death was particularly relevant to the question of the

defendant's guilt of the victim's murder. These photographs serve to illustrate the

condition of the body with precision and corroborate the testimony of the medical

examiner. See State v. Zirkle, 910 S.W.2d 874, 888-89 (Tenn. Crim. App. 1995)

(photograph admitted to corroborate other evidence); State v. Stephenson, 878

S.W.2d 530, 542 (Tenn. 1994) (photograph of corpse admitted to illustrate


                                          21
testimony). The photographs demonstrate the location of the victim's clothing. The

state offered testimony that the victim's crop top was slightly out of place and her

shoes were missing. The photographs define the condition of the victim's clothing

with much more precision than the spoken word. They were properly admitted. If

the state seeks to introduce these or similar photographs at the defendant's retrial

on second degree murder, the trial court will be obliged to renew its inquiry in accord

with these principles.



                                          IV

              Next, Willis challenges the propriety of Agent Breedlove's testimony

that Willis threatened to snap his neck, that Willis was shaking and trembling when

he was shown a screwdriver the agent believed to be the murder weapon, and that

Willis "lawyered up" during interrogation. We address these issues to provide

guidance on remand.



              The first portion of this testimony relates to the defendant's statement

to then-District Attorney General Patrick McCutchen and an encounter the

defendant had with Agent Breedlove outside the defendant's apartment complex.

The gist of the complaint appears to be that the state elicited testimony from Agent

Breedlove that he surreptitiously observed an interview between Willis and General

McCutchen via hidden camera. Agent Breedlove testified that during the course of

the interview, Willis recounted a previous conversation between himself and

Breedlove in which Breedlove asked Willis how he killed the victim. According to

Breedlove, Willis said "he wouldn't have done it that way, he would have taken me

and if he wanted to kill me, he would have taken me and snapped my neck." This

testimony led the prosecution to ask Agent Breedlove about a heated verbal

confrontation between the defendant and himself, a high point of which was the

defendant's exhortation to Breedlove that "he was going to break [his] f------ neck

                                          22
. . . ."



              The admission of the "snapped neck" statement was not raised in the

motion for new trial. Hence, appellate review has been waived. Tenn. R. App. P.

3(e) ("no issue presented for review shall be predicated upon error in the admission

or exclusion of evidence . . . unless the same was specifically stated in the motion

for a new trial; otherwise such issues will be treated as waived"). For purposes of

retrial, however, we note the evidence is relevant as a portion of the defendant's

prior statements to law enforcement officers. The defendant was advised of his

rights before he made the statement to General McCutchen in which he recalled the

earlier conversation with Agent Breedlove. We disagree with the defendant's

characterization of the "snapped neck" statement as a threat and view it as an

abstract statement of how the defendant would kill someone if he were so inclined.

The statement was properly admitted and was not unfairly prejudicial. See Tenn.

R. Evid. 401, 403, 803(1.2).



              On the other hand, there can be no doubt that the statement the

defendant made outside his apartment complex was a direct threat to Agent

Breedlove's physical well-being. In Tillery v. State, 565 S.W.2d 509, 511 (Tenn.

Crim. App. 1978), this court held, "[a]ny attempt by an accused to conceal or

destroy evidence, including an attempt to suppress the testimony of a witness, is

relevant as a circumstance from which guilt of the accused may be inferred." In

Tillery, the defendant threatened an eyewitness several months after the crime.

Id. at 510. Although Tillery does not present precisely the same factual scenario,

we believe it is sufficiently analogous to lend support to the case at bar. Here, the

defendant knew he was the subject of an on-going investigation. Agent Breedlove

left his business card with a note indicating his desire to talk to the defendant on the

defendant's windshield. Later the same day the defendant saw Agent Breedlove

                                          23
and motioned for him to step out of his car. The defendant then initiated a verbal

assault which included the threat to break the agent's neck.            Obviously, the

defendant's goal was to intimidate, if not physically harm, a law enforcement officer

whom he knew was investigating his involvement in the victim's death. Accordingly,

we believe this evidence was circumstantially probative of the defendant's guilt.

Furthermore, we find greater probative value in this evidence than prejudicial effect.

See Tenn. R. Evid. 403. Thus, there was no error in its admission.



              Willis also alleges error in Agent Breedlove's testimony that when he

confronted the defendant with a torque screwdriver and told the defendant that he

knew what had been used to kill the victim, Willis began shaking and trembling.

Willis claims this evidence should not have been admitted absent expert testimony

that there was a connection between nervousness and guilt. We disagree. This

court has recently held that a trial court did not abuse its discretion in allowing a law

enforcement officer to testify about personal observations of a defendant's

demeanor during the taking of the defendant’s statements and that such

observations may be of assistance to the jury "in determining the weight and

credibility of the defendant's statements." State v. James Clayton Young, Jr., No.

01C01-9605-CC-00208, slip op. at 49 (Tenn. Crim. App., Nashville, May 22, 1998)

("the defendant 'appeared calm'"). The trial court did not abuse its discretion in

admitting this evidence.




                                           24
               The third complaint is that when Agent Breedlove held up the torque

screwdriver and told the defendant he knew what the murder weapon had been, the

defendant "lawyered up, he wanted his lawyer." Immediately upon the agent giving

this testimony, the defense objected and the court instructed the jury to disregard

the statement.



               As the state concedes on appeal, this testimony was inappropriate.

We recognize that the prosecution may present evidence that an accused

terminated questioning at some point after being advised of his Miranda rights and

initially electing not to exercise his rights. See, e.g., Ware v. State, 565 S.W.2d

906, 908 (Tenn. Crim. App. 1978). It is apparent, however, that Agent Breedlove's

characterization of the defendant's invocation of his right to counsel as lawyering up

was an inflammatory denigration of the exercise of constitutional rights. On retrial,

the state should insure that this witness does not testify in this inflammatory and

improper manner.



                                          V

               In the remaining issues, Willis questions whether prosecutorial

misconduct required a mistrial, whether a continuance was in order when the state

failed to provide information regarding two potential lay witnesses, and whether an

expert's testimony should have been excluded because the state did not provide the

expert's written report prior to trial.



               Some of the errors of which the defendant complains hinge on

discovery matters. Although the state was tardy in providing some discovery

information and other information which should have been provided was misplaced

by the state, it appears that the defense has received the statements which were

not misplaced and has heard the testimony of the any witnesses whose statements

                                          25
were misplaced. The defense should be able to proceed with full information and

have proper time for investigation upon retrial. Accordingly, it is not necessary that

we consider the issues which pertain to undisclosed discovery materials.14



              The remaining allegations require brief analysis.



              First, the defense attacks evidentiary admissions; however, he does

this under the heading of prosecutorial misconduct and does not explain why

admission was error under the rules of evidence.            Without some citation

demonstrating that the evidence should not have been admitted, we are at a loss

to understand how the prosecution committed misfeasance in offering the evidence.

We decline to speculate in that regard.15 See Tenn. R. Ct. Crim. App. 10(b) (issues

not supported by citation to authority shall be treated as waived); Tenn. R. App. P.

27(a)(7) (briefs shall contain citation to authority).



       14
         Specifically, the issues are:
       (1)   Whether a mistrial should have been granted due to
             prosecutorial misconduct:
             (a)      In calling Crystal Bickford to testify without
                      providing her prior statement, which the state
                      knew was lost prior to calling the witness.
             (b)      In failing to provide the statement of Bo Botts
                      and in misleading the defense that Rose
                      Kitchens would be called as a prosecution
                      witness.
       (2)   Whether a continuance should have been granted when the
             state failed to provide discovery information related to
             Pamela Bissette and Ed Cota.
       (3)   Whether the court erred in allowing Kerry Oein to testify
             when his report had not been provided to the defense.
       15
         These evidentiary issues relate to:
       (1)   William Alley's testimony that when he saw the tire tracks
             near the location where the body was found, he thought to
             himself, "[B]oy he sure got mad when she said no."
       (2)   Judy Kennedy's testimony that the defendant told her his
             friend Bill had pneumonia and Kennedy's testimony that she
             thought she saw Bill that morning.
       (3)   Harold McCarver's testimony that the defendant apologized
             to him for using him as an alibi.
       (4)   Unresponsive answers and opinion testimony of Pat
             McCutchen.


                                           26
              Additional allegations are made regarding the prosecution's

examination of witnesses. Willis claims that one of the prosecutors "testified from

the podium that the reward had been withdrawn." The prosecutor asked a witness

on redirect examination, "Did you know that the reward had subsequently been

withdrawn, did you know that?" The defense objected, and the prosecutor indicated

he was not sure whether evidence had been introduced that the reward had been

withdrawn. In fact, no such evidence had been received. The court instructed the

jury to disregard the question. On retrial, the prosecution should refrain from asking

questions which are premised upon facts not in evidence or which mischaracterize

the evidence.



              The defendant also complains that the prosecutor asked Jimmy

Brumfield whether the defendant's girlfriend was "pretty much dog-face ugly."

Apparently, the prosecutor was attempting to discredit evidence that Brumfield and

the defendant's girlfriend had been intimate, which was relevant to potential bias of

Brumfield against the defendant.       The state concedes on appeal that "this

statement/question was ill-advised." Accordingly, this court expects the prosecution

to pursue a more prudent line of questioning on remand.



              Finally, because we have already granted the defendant a new trial,

it is not necessary that we analyze his claim of cumulative error from his various

allegations of prosecutorial misconduct.



       In conclusion, the defendant's conviction of felony murder is reversed. This

matter is remanded to the Robertson County Criminal Court for a new trial on




                                         27
the lesser grade offense of second degree murder.




                                       ________________________________
                                       JAMES CURWOOD WITT, JR., JUDGE


CONCUR:


_______________________________
JOHN H. PEAY, JUDGE


_______________________________
DAVID H. WELLES, JUDGE




                                     28
