         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                     March 9, 2005 Session

         STATE OF TENNESSEE v. RICHARD FRANK D’ANTONIO

                 Direct Appeal from the Criminal Court for Davidson County
                       No. 2002-C-1280    J. Randall Wyatt, Jr., Judge



                    No. M2003-03052-CCA-R3-CD - Filed October 26, 2005


The defendant appeals his conviction for premeditated first degree murder and presents nine issues
for review: (1) Sufficiency of the evidence; (2) Failure to dismiss the indictment due to prosecutorial
delay; (3) Failure to suppress the defendant’s statements; (4) Failure to suppress a crime scene
photograph; (5) Admission of hearsay under the state of mind exception; (6) Admission of hearsay
under the co-conspirator exception; (7) Admission of conduct and activities by Chuck Dixon with
Cashbox magazine; (8) Admission of a tape recording and transcript of the defendant’s
conversations; and (9) Error in instructing the jury on aiding and abetting. After careful review, we
find no reversible error and affirm the defendant’s conviction.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which NORMA MCGEE OGLE,
J., joined. JOSEPH M. TIPTON , J., concurred in results only.

Ross E. Alderman, District Public Defender, and Jeffrey A. Devasher and Patrick Frogge, Assistant
Public Defenders, for the appellant, Richard Frank D’Antonio.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Senior Counsel; Victor S.
(Torry) Johnson, III, District Attorney General; and Tom Thurman and Kathy Morante, Assistant
District Attorneys General, for the appellee, State of Tennessee.


                                             OPINION

       The defendant, Richard Frank D’Antonio, was indicted on July 19, 2002, for: (Count One)
premeditated first degree murder of Kevin Hughes and (Count Two) assault with intent to commit
murder of Sammy Sadler. Both counts stemmed from events that occurred on March 9, 1989, on
16th Avenue South (Music Row) in Nashville. A jury convicted the defendant on both counts, as
charged, on September 25, 2003. The defendant was sentenced to life imprisonment for the murder
of Kevin Hughes in Count One. The second count was later dismissed due to violation of the statute
of limitations.

          The defendant now appeals his conviction and presents nine issues for consideration on
review:
          1)     Whether the evidence was sufficient to support the conviction for
                 premeditated first degree murder;
          2)     Whether the trial court erred in failing to dismiss the indictment due to pre-
                 accusatorial delay;
          3)     Whether the trial court properly denied suppression of the defendant’s
                 statements to police;
          4)     Whether a photograph of the victim’s body at the crime scene was properly
                 admitted;
          5)     Whether the trial court erred in admitting numerous hearsay statements and
                 non-verbal hearsay by the victim under the “state of mind” exception;
          6)     Whether the trial court erred in admitting numerous hearsay statements and
                 non-verbal hearsay by Chuck Dixon under the “co-conspirator” exception;
          7)     Whether the trial court erred in admitting testimony concerning conduct and
                 activities by Chuck Dixon, relating to Cashbox magazine;
          8)     Whether the trial court erred in admitting a tape recording and transcript of
                 two telephone conversations between the defendant and prosecution witness,
                 Steve Daniel; and
          9)     Whether the trial court erred in instructing the jury on the theory of aiding
                 and abetting.

                                        Factual Background

       At the time of his death, the victim was Chart Director for Cashbox magazine. The victim
was hired for this position by the defendant in 1987. The defendant, in 1987, was the Division
Manager at Cashbox but was not employed there at the time of the victim’s death.

       Sharon Pennington, a record promoter for Step One Records in March of 1989, testified that
she and the victim were good friends. She stated that they had attended a movie on March 9, 1989,
and that she dropped the victim off at his office in the early evening. She said the victim was
uncharacteristically “nervous” and “fidgety” that day.

        Ms. Pennington said that the Cashbox chart for independent artists was not legitimate and
that the victim had been taking steps to make it legitimate and improve its image. She said that
Chuck Dixon’s control over the independent artists chart at Cashbox was so widely known that the
magazine was often derisively called “Chuckbox” by members of the music industry. Ms.
Pennington knew Chuck Dixon from her company having hired him as an independent record
promoter. She knew the defendant due to his work at Cashbox and he was often with Dixon at
meetings with her employers. She recalled that the defendant had a back injury at that time.


                                                  -2-
        On the day of the victim’s death, Ms. Pennington had received two angry phone calls from
Dixon asking her to relay messages to the victim. Dixon wanted the victim to restore some stations
that had been dropped from those used to compile the charts. She explained that starter or smaller
radio stations have a larger play list, making it easier for a promoter to obtain play for particular
songs. The victim had dropped several smaller stations in favor of stations with larger listening
markets. This caused problems for Dixon in manipulating the selection of songs to be played. After
she told the victim about Dixon’s calls and that Dixon was upset, the victim responded that he
expected Dixon to be upset.

        Sammy Sadler was, in March 1989, promoting and recording for Evergreen Records. His
promoter was Chuck Dixon. Sadler and the victim were “acquaintances and becoming friends.”
Sadler met the victim at the Cashbox office on March 9, 1989, and the two went out to eat and then
went to Sadler’s office at Evergreen Records. The two men left and went to the victim’s car which
was parked on Sixteenth Avenue South. As Sadler was entering on the passenger side, a man,
wearing gloves and a mask and displaying a gun, appeared at Sadler’s door. Sadler threw up his
arms to protect his head and was shot once. Sadler did not recall making his way to a nearby
apartment for assistance. Sergeant Kenny Dyer questioned Sadler that night, and Sadler reported that
the assailant was wearing all black clothing and a ski mask. Sadler also thought the assailant was
a black male of slender build.

        On the night of the murder, two Belmont students witnessed the incident. Robert Lyons, III,
was driving down 16th Avenue South; his passenger was Allison Kidd (now Chimento). Lyons
witnessed the victim roll out of his car and start running. A man came from the other side of the
victim’s car and started pursuing the victim, shooting two or three times. The victim fell, and the
assailant ran to him and shot the victim three more times. Lyons stated that the shooter had on a
black ski mask, black clothing, and held in his right hand a blue-steel revolver. He estimated that
the shooter was 5’10” to 6’ tall and had a stocky build. Lyons stated that the eye holes in the
shooter’s mask were large enough for him to see that the shooter was Caucasian. He described the
shooter as running with an unusual side-to-side gait. The police responded to a call of a shooting
within three minutes.

         Allison Kidd Chimento recalled driving down Music Row on March 9th with Bob Lyons a
little after 10:00 p.m. when two men ran in front of their car. One man was fleeing from a man
dressed in black and a ski mask, carrying a black gun in his right hand. She saw the shooter stand
over the fallen victim and fire repeated shots. Mrs. Chimento said the assailant was from 5’9” to 6’
tall and overweight in the mid-section. The shooter fled between buildings to the east.

       On March 9, 1989, Phillip Barnhart lived in an apartment on Sixteenth Avenue South. He
heard shots and looked out his window where he saw two men running down the street in a
“zigzagged” fashion until they ran out of his vision. Barnhart thought one man was wearing a ski
mask. Sammy Sadler was able to come to Barnhart’s apartment, where he collapsed.




                                                -3-
        Donnie Lowery was in his apartment on Sixteenth Avenue South on the night of the victim’s
murder. He heard gunshots and looked out his window. He witnessed a man chasing and shooting
at another man. When the victim fell, the shooter went to the body and shot another two or three
times. The man was shooting with his right hand and, when he ran off, it was with an “abnormal
gait,” “somewhat like a limp.” He said the shooter was 5’10” to 6’ tall and had a “stocky build.”

        Kathy Hunter was visiting Lowery at the time of the shooting. She saw a man running and
yelling, being pursued by a man dressed in black. When the victim fell, his pursuer walked up and
shot him two or three more times. She stated the assailant was wearing a ball cap, as well as a ski
mask. She estimated the assailant’s height as 5’10” to 6’ and said he was “stocky built.”

        Officer Charles Anglin, an employee in the Identification Division of Metro Nashville Police
Department, was one of the officers who gathered evidence at the scene. Among the items found
were a spent projectile found near the victim’s head and a ball cap near the victim’s right foot. A
hair found in the ball cap was submitted to the FBI for analysis. Agent Douglas Deedrick, a hair and
fiber expert, testified that the black hair had characteristics of cat hair.

        Detective Pat Postiglione interviewed the defendant on March 28, 1989. He described the
defendant as cooperative but nervous. The defendant appeared to be in discomfort and complained
of back problems. Detective Postiglione observed that the defendant was heavier in March of 1989
than at the trial.

        Detective Bill Pridemore was the lead investigator of the victim’s murder in 1989. He stated
that two projectiles were removed from the victim’s body during the autopsy. Those, together with
the projectile found at the scene, were submitted for testing, as was a baseball cap found at the scene.

        In February of 1993, Detective Pridemore learned that an individual named Steve Daniel had
sold the defendant a handgun in 1989. Detective Pridemore interviewed Mr. Daniel and was
provided with four spent bullets and one live round of ammunition which Daniel said was similar
to that supplied the defendant when the defendant bought the gun. It was Detective Pridemore’s
understanding that the ammunition was obtained by Daniel after the defendant had purchased the
gun.

        By April of 2002, Detective Pridemore had been assigned to the cold case files within the
Metro Nashville Police Department and was again working on this case. He contacted Steve Daniel
and learned that the gun sold to the defendant had been test fired at Daniel’s home on March 9, 1989,
the day of the defendant’s purchase. Detective Pridemore went to the scene of the test firing in
Flintstone, Georgia and there recovered thirteen projectiles that were embedded in the ground. These
were submitted to the TBI for testing.

       In July of 2002, Detective Pridemore went to Las Vegas, Nevada, to escort the defendant
back to Nashville after his arrest. The defendant made a statement when he was informed of the
murder charge, that it must be about Kevin. At a later date, after the defendant’s transfer back to


                                                  -4-
Nashville, the defendant told Detective Pridemore that he would talk to him about the case if
Pridemore could arrange for him to be housed in a private cell.

       Detective Pridemore stated that he had measured the defendant in stocking feet and that he
was 5’11” tall. He also testified that Chuck Dixon had died in 2001.

        TBI Special Agent Tommy Heflin testified as an expert in firearms and ammunition analysis.
He stated that the two projectiles removed from the victim’s body and the third projectile found at
the crime scene were all fired from the same weapon. He identified them as .38 caliber, .357 size
wad-cutter lead projectiles, and most probably were reloads. Agent Heflin also examined the thirteen
projectiles found at Flintstone, Georgia. Of those, he concluded that one was fired from the same
gun barrel that was used to shoot Kevin Hughes. That projectile was also a lead wad-cutter.

       Dr. Mona Gretzel Case Harlan-Stevens, a forensic pathologist, performed the autopsy of the
victim. She testified that four separate bullets struck the victim’s body, and two were recovered.
The cause of death was a gunshot wound to the head, and the manner of death was homicide.

        Steven Daniel, a convicted marijuana dealer, began cooperating with Georgia and federal
officers and became known to the Nashville police. He testified that he had known the defendant
since 1985 or 1986 and that they visited in each other’s homes. The defendant was at Daniel’s home
in Flintstone, Georgia on March 9, 1989. Daniel said the defendant arrived unannounced in mid-
afternoon and wanted to buy a pistol. Daniel sold the defendant a thirty-eight (.38) pistol and
provided reloaded thirty-eight (.38) caliber bullets with the gun. The two men test fired the gun
behind Daniel’s house. The defendant left Daniel’s house between 6:15 and 7:00 p.m. (CST).

        Daniel stated that he remembered the date due to the defendant bringing it up in conversation
several times later, as well as the defendant’s then wife, Carolyn, having made inquiries about that
evening. The defendant told Daniel to tell Carolyn that he had not left Daniel’s home until after the
11:00 p.m. (EST) news that night. According to Daniel, the drive from his home in Flintstone to
Nashville takes about two hours and fifteen minutes.

        In 1993, Daniel reported to Georgia authorities that he might have information about a
murder case. Daniel had seen a television program on Crime Stoppers concerning Kevin Hughes’
murder. The program made reference to the assailant’s strange running gait. Daniel had witnessed
the defendant run and described it as “a real strange gait . . . more like an animal would run than a
person.”

        At the request of the police, Daniel recorded phone conversations with the defendant. In one
conversation, the defendant makes reference to renewed police interest in “when that boy got killed
up here . . . out on Music Row” and requests Daniel to say, if asked, that the defendant left Daniel’s
house after the 11:15 (EST) news that night. Daniel stated that the defendant brought up this date
three or four different times in their various conversations. When Daniel asked about the gun he had
sold the defendant, the defendant said, “it’s gone.” Daniel stated that he cooperated with the


                                                 -5-
Nashville detectives when contacted again in 2002 and that he showed them the area where he had
test fired weapons at his former home in Flintstone.

        Gene Kennedy testified that he had been promoting and producing records for twenty-eight
years. He stated that he had, until about 1988, promoted to Cashbox magazine. Kennedy was
approached by Chuck Dixon, who offered to promote to Cashbox for him in return for a fee of $1500
and a purchase of an ad in Cashbox by Kennedy . Kennedy refused and, for a period of two and one-
half to three years, Kennedy’s promoted records did not appear on the Cashbox charts. Kennedy
believed that, in 1989, the Cashbox charts were controlled by Dixon and the defendant and that the
charts lacked legitimacy. Kennedy had lunch with the victim a week before the victim’s death and
said the victim was acting “very nervous.” On cross-examination, it was established that some
records promoted by Kennedy in 1989 were charted in Cashbox. He claimed to have no knowledge
of this as he had quit following the Cashbox charts.

        Tom McEntee served as Division Manager of Cashbox from November of 1985 to April of
1987. He had hired the defendant to assist with the charts. When McEntee left Cashbox, the
defendant took his place. McEntee said the defendant was friends with Chuck Dixon and had gone
to work with Dixon when the defendant left Cashbox in 1988 or 1989. McEntee explained that
charts could be manipulated either by false reporting from radio stations controlled by an interested
person, e.g., a promoter, pocket stations, or could simply be altered by the person compiling the
charts.

       Robert Metzger testified pursuant to a use immunity agreement with the district attorney.
He had worked as a producer and promoter since 1971. He testified that, in the late 1980’s,
Cashbox’s chart was the only exposure independent artists had in the Nashville music community.
He said that the defendant was then in charge of Cashbox. In order to have a song charted, it was
required that you hire Chuck Dixon and buy an ad in Cashbox. Initially, Metzger’s clients paid the
defendant this fee, although Metzger was aware Dixon received part of the money. The minimum
amount of money for six or seven weeks on the chart was $2500. Metzger illustrated the illegitimacy
of the system by recounting that after a payment by his client, there was a problem with
manufacturing the record. Nevertheless, the record, “Gal from San Antone,” appeared on the
Cashbox chart before a single copy was available for play or sale.

        Metzger had seen the victim at a radio seminar shortly before the murder. There he observed
the victim and Chuck Dixon having a heated argument. Metzger was unable to hear the words
exchanged but said that Dixon was trying to give the victim money and that the victim repeatedly
refused to accept it. After this incident, Metzger had a meeting with the defendant and Chuck Dixon.
One of Metzger’s artists was about to release two more records and was preparing to pay $15,000
to have the records charted and to keep them charted for an extended time. Metzger expressed his
concerns to Dixon in the following manner:
        Metzger:        I told him, I said, Chuck, you know, I saw you and Kevin having this
                        big argument out at the Radio Seminar. And I said, you know, he’s
                        already dropped some of your pocket stations, which weakens your


                                                -6-
                      ability to keep a record in for a long time. And I know he’s about to
                      drop a bunch more of your pocket stations. And I said, Chuck, I’m
                      not going to, you know, give you this fifteen thousand dollars unless
                      I know for a fact you can handle Kevin Hughes.
       Assistant DA: Did you also explain to him something that you had heard?
       Metzger:       I did, General. I said, you know, the rumor is all over Music Row is
                      that Kevin is going to go to the media and expose this chart fixing
                      scheme you guys are working at Cashbox. And I said, you know, if
                      he does that, you know, this is going to look very bad on me and my
                      clients and everybody involved in this.
 Dixon responded that he was aware of the rumor and said, “I will handle Kevin Hughes. And if I,
you know, can’t handle him, he’ll be gone.” The defendant was present during this conversation.
Upon receiving those assurances, the $15,000 was paid, plus an advertisement taken in Cashbox
magazine. In return, the artist’s release was the highest charted independent record, and he was
named Cashbox Male Vocalist of the Year. Metzger clarified that the defendant was not employed
at Cashbox during the time of the foregoing conversation but that he had become partners with
Chuck Dixon.

        Steve Hess was hired at Cashbox by Chuck Dixon as an assistant chart director a few weeks
before the victim’s death. After the victim’s death, Hess assumed the duties of chart director and
was trained by the defendant. Hess did not know whether Dixon was employed by Cashbox, but the
owner of the magazine, George Albert, had made it clear that Dixon was in charge. Dixon did not
maintain an office at the Cashbox site but was frequently in the Cashbox office. Hess was not
instructed to manipulate the charts and, to his knowledge, they were compiled legitimately during
his tenure.

        Gary Bradshaw worked as a music promoter in 1989. He had known the victim, and the
victim had expressed his dissatisfaction with his job at Cashbox and an intent to leave his job.
About three months after the victim’s death, Bradshaw was contacted by Chuck Dixon and agreed
to work with him. He learned that the Cashbox charts were illegitimate. A chart position could be
acquired by hiring Chuck Dixon for $1500 to $2000 and by paying Cashbox for an advertisement
costing $750. Bradshaw testified that Dixon had control over the reporting of over half the 125
stations that reported to Cashbox. Those controlled were known as pocket stations.

         The defendant was working for Dixon when Bradshaw came to work at Cashbox, but
Bradshaw was unaware of any duties performed by the defendant. Bradshaw stated that when Dixon
would become angry with someone, he would comment that their fate could be the same as Kevin’s.
Bradshaw stated that he saw firearms in the Cashbox office and that Dixon carried a weapon. The
first time Bradshaw met Dixon, two of Dixon’s “henchmen” frisked Bradshaw.

        Sharon Corbett worked in the same building which housed Cashbox in 1989 and was a good
friend of the victim. She testified that the victim had become unhappy with his job and was thinking



                                                -7-
of resigning. She also knew the defendant and said that he favored his hip to the point it was
noticeable when he walked.

       Cecilia Bragg was hired as a receptionist at Cashbox in 1987. She knew the victim, Chuck
Dixon, and the defendant. She said that Dixon came to Cashbox regularly. She noted that the
defendant had a bad back and limped. Immediately before the victim’s murder, she said the victim
seemed to be concerned and upset.

        Sandra Daens worked at Cashbox in May of 1987. She had overheard the defendant tell
others that chart positions could be acquired for the price of an advertisement in the magazine. She
said Chuck Dixon was a frequent visitor with the defendant at Cashbox. She was fired by the
defendant in September of 1987.

        Mara Langlois, an investigator with the Davidson County District Attorney’s office, served
a search warrant at the home of Chuck Dixon in January of 2001. Two payment books containing
names and dollar amounts were seized. One book’s entries began in 1987 and ended in 1988 (orange
book). Another book’s entries began in 1990 and ended in 2000 (red book). No records were
recovered from the period from October 1988 through 1989. The total amount of the payments in
1988 was $138,757.09. There were five payments from the defendant in 1988, totaling $3499. No
payments from the defendant were reflected after 1988. The 1990 payment total was $295,796.97,
and the total for 1990 through 2000 was $2,188,787.05. Dixon’s rolodex contained the defendant’s
Las Vegas telephone number.

         Carolyn Cox had been married to the defendant from 1986 until July of 1989. She testified
that the defendant earned $13,000 per year when employed at Cashbox. After leaving, the defendant
started an artist development business and worked with Chuck Dixon. After leaving Cashbox, the
defendant acquired two houses, three cars, a grand piano, and a motorcycle.

        Ms. Cox stated that on March 9, 1989, the defendant was not at home when she went to bed
between eleven p.m. and twelve o’clock midnight. She was awakened by a phone call from Chuck
Dixon at 3:00 a.m. She told Dixon that the defendant was not at home. After she had hung up the
phone, the defendant appeared and asked who had called. The defendant told her he had been at
Steve Daniel’s house. Later, the defendant instructed her to tell police investigators that he was at
home on the night of the victim’s murder. Ms. Cox stated that during their marriage, the defendant
suffered from a hiatal hernia and a bad back. She also said that they owned a black cat in 1989. She
further testified that the defendant was right-handed.

                                            Sufficiency

         The defendant contends that the evidence is insufficient to support his conviction for
premeditated first degree murder. Specifically, the defendant argues that the circumstantial evidence
of this case does not exclude every reasonable hypothesis except that of the defendant’s guilt.



                                                -8-
        The standard for an appellate court reviewing a sufficiency challenge is “whether,
considering the evidence in a light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” State v. Reid, 91 S.W.3d
247, 276 (Tenn. 2002); see also Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319
(1979); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999). Because a verdict of guilt removes the
presumption of innocence and imposes a presumption of guilt, the burden shifts to the defendant
upon conviction to show why the evidence is insufficient to support the verdict. See State v. Evans,
108 S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State
v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). On appeal, the State is entitled to the strongest
legitimate view of the evidence and to all reasonable and legitimate inferences that may be drawn
therefrom. State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000); see also Carruthers, 35 S.W.3d at 558;
Hall, 8 S.W.3d at 599.

        A verdict of guilt by the trier of fact resolves all conflicts in the evidence in favor of the
prosecution’s theory. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “Questions about the
credibility of 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, and this Court does not re-weigh or re-evaluate the
evidence.” Evans, 108 S.W.3d at 236 (citing Bland, 958 S.W.2d at 659). Nor may this court
substitute its own inferences drawn from circumstantial evidence for those drawn by the trier of fact.
Evans, 108 S.W.3d at 236-37.

       A crime may be established by circumstantial evidence alone. See State v. Tharpe, 726
S.W.2d 896, 899-90 (Tenn. 1987); State v. Bigsby, 40 S.W.3d 87, 90 (Tenn. Crim. App. 2000).
However, before an accused may be convicted of a criminal offense based only upon circumstantial
evidence, 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, 470 S.W.2d 610, 612
(Tenn. 1971). 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.” Id. at 613; see also Bigsby,
40 S.W.3d at 90.

       In March of 1989, the statutory definition of first degree murder in pertinent part read as
follows:
       39-2-202 (1988). First degree murder.
       (a)(1) Every murder perpetrated by means of poison, lying in wait, or by other kind
       of willful, deliberate, malicious, and premeditated killing, or committed in the
       perpetration of, or attempt to perpetrate, any murder in the first degree, arson, rape,
       robbery, burglary, larceny, kidnapping, aircraft piracy, or the unlawful throwing,
       placing or discharging of a destructive device of bomb, is murder in the first degree.




                                                 -9-
        By way of establishing a motive, the State produced evidence that the defendant was in
league with Chuck Dixon to control the independent artists’ chart at Cashbox magazine. This
control of access to artists’ public exposure enabled Dixon and the defendant to profit as promoters.

        There was ample proof adduced that the victim was perceived as a threat to Chuck Dixon and
the defendant’s control of the charts at Cashbox. This, in turn, would drastically affect Dixon and
the defendant’s lucrative scheme of effectively forcing artists to hire them as promoters for access
to the only chart for independent artists in the Nashville music community.

       Gene Kennedy, an experienced music promoter and producer, stated that Dixon and the
defendant controlled the Cashbox charts in 1989. Access to the charts required having Dixon as a
promoter and subscribing for an advertisement in the magazine.

         Another promoter/producer, Robert Metzger, stated the Cashbox charts were the only
exposure independent artists had in the Nashville music community during the late 1980's. He stated
that artists were required to hire Dixon as a promoter, plus buy an advertisement from Cashbox, in
order to get a song charted. Some of Metzger’s clients paid the defendant directly for these services.
Metzger confronted Dixon over a rumor that the victim was about to expose the fraud at Cashbox
and was told by Dixon that the victim would be handled or would be gone. The defendant was, at
that time, a partner of Dixon’s.

       Gary Bradshaw worked with Dixon after the victim’s death and confirmed that the dual
requirements of hiring Dixon and of taking an ad at Cashbox for chart position persisted after the
death of the victim.

         Sharon Pennington, a music promoter and a friend of the victim, received two angry calls
from Dixon on the day of the victim’s murder. Dixon instructed her to relay his dissatisfaction with
the victim’s changes on chart compilations. She said the victim was uncharacteristically nervous that
day and responded that he expected Dixon to be unhappy. Ms. Pennington was also aware of the
defendant’s business relationship with Dixon.

        The victim’s actions of changing the method of compiling charts for Cashbox and the
possibility of an impending exposure of the fraud would have had drastic consequences for Dixon’s
and the defendant’s lucrative business practices, providing ample motive for either man to eliminate
this threat.

        Steve Daniel’s testimony narrowed the focus more sharply on the defendant. Daniel testified
that on the day of the murder, the defendant came to Daniel’s home, located just outside of
Chattanooga, to purchase a gun. The men test fired the .38 revolver that the defendant purchased.
Daniel also supplied the defendant with reloaded wad-cutter ammunition for the gun. A projectile
was found at the test firing site matching the fatal projectiles that killed the victim, providing proof
the bullets were fired from the same gun. The defendant had left Daniel’s home with sufficient time
to be in Nashville at the time of the victim’s murder. The defendant had on several occasions asked


                                                 -10-
Daniel to lie regarding the defendant’s time of departure, in order to create an alibi. Carolyn Cox,
the defendant’s wife in 1989, confirmed that the defendant was not at home between 11:00 p.m. and
12:00 midnight when she retired, although he had instructed her to tell police that he was at home.
She also related that Chuck Dixon called their residence at 3:00 a.m. that morning and asked for the
defendant.

        The victim’s assailant wore a ski mask precluding positive identification, but the
eyewitnesses described him generally as from 5’9” to 6’ in height with a stocky or heavy build. The
most striking characteristic observed by the eyewitnesses was the assailant’s unusual gait when
running. The gait was described as “abnormal,” “side to side,” and “somewhat like a limp.” A
number of the defendant’s acquaintances described him as favoring his back or hip and as affected
by a limp. Steve Daniel had witnessed the defendant run and said it was “a real strange gait” and
“more like an animal.” The defendant’s former wife, Carolyn Cox, stated the defendant suffered
from a hiatal hernia and a bad back.

       Of lesser consequence, the assailant left a ball cap at the crime scene. A black hair,
characteristic of cat hair, was found in the cap. The defendant and his wife owned a black cat in
March of 1989, according to Carolyn Cox.

        Although the State’s evidence was entirely circumstantial, it proved a motive, acquisition and
possession of the gun that fired the fatal shots, opportunity, and the defendant’s efforts to fabricate
an alibi through Steven Daniel and Carolyn Cox. The description of the masked shooter, by all
witnesses except Sammy Sadler, matched the defendant.

        The defendant’s statements to officers after his arrest were admittedly subject to different
interpretations. However, a jury would be entitled, in the light of all other evidence, to accept the
defendant’s remarks as an admission of guilt.

        We are mindful of our responsibility in reviewing convictions acquired solely by
circumstantial evidence and are guided by our supreme court’s admonition in Crawford, 470 S.W.2d
at 613:
        In order to convict on circumstantial evidence alone, the facts and circumstances
        must be so closely interwoven and connected that the finger of guilt is pointed
        unerringly at the defendant and the defendant alone. 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. Mere suspicion and straws in the wind are not
        enough for circumstances take strange forms.

       The defendant argues that evidence of guilt points equally to Chuck Dixon, Steve Daniel, or
an unknown assailant. We do not agree. The evidence strongly indicates that the murder occurred
with Dixon’s knowledge, but the totality of circumstances, in our view, points directly at the
defendant and supports the jury’s verdict of the defendant’s guilt.


                                                 -11-
                                       Pre-Accusatorial Delay

        The defendant filed a pre-trial motion to dismiss the indictment due to the thirteen-year delay
between the commission of the offense and the return of the indictment. The defendant contended
that he had suffered actual prejudice due to the delay and that the State had caused the delay to gain
a tactical advantage. The motion to dismiss was denied, and the defendant now appeals the issue
as violative of due process under the Fifth and Fourteenth Amendments to the United States
Constitution and Article I, §§ 8 and 9 of the Tennessee Constitution.

        The murder of Kevin Hughes occurred on March 9, 1989, and an immediate investigation
was undertaken. In 1993, the police learned that Steve Daniel had sold a gun to the defendant in
1989. In 2002, Daniel was re-interviewed, and the police learned that the weapon provided to the
defendant had been test fired at Daniel’s Georgia home in 1989. Officers went to the site of the test
firing and recovered thirteen projectiles from the area. One matched the bullets recovered from the
victim. Based on this evidence, an indictment was obtained charging the defendant with murder.
According to Detective Pridemore, police had lacked enough evidence prior to this discovery to
make formal charges.

        In an effort to show prejudice, the defendant adduced testimony at the pre-trial motion
showing that an alternative suspect theory had been pursued in 1989. This investigation was done
by a patrol officer independent of the homicide unit. Numerous tape-recorded interviews were
conducted in that investigation. These recordings were no longer available by the time of the
defendant’s indictment. Acting as an informant for Georgia and federal officials, Steve Daniel had
recorded several phone conversations with the defendant. These, also, were no longer available. The
defendant’s attorneys made efforts to examine court records in Alabama concerning Steve Daniel
for possible impeachment but were informed that the files had been lost or could not be located.

       The defendant strongly urges this court to apply the holding of State v. Gray, 917 S.W.2d 668
(Tenn. 1996), as the standard concerning pre-accusatorial delay. Our review of the history of pre-
accusatorial delay and the cases subsequent to Gray lead us to reject the defendant’s argument.

        This court in State v. Dykes, 803 S.W.2d 250 (Tenn. Crim. App. 1990), addressed the due
process concerns of delay between the commission of a crime and the commencement of adversarial
proceedings. In Dykes, we cited with approval the rule enunciated in United States v. Marion, 404
U.S. 307, 92 S. Ct. 455 (1971); “[t]he Due Process Clause of the Fifth Amendment would require
dismissal of the indictment if it were shown at trial that the pre-indictment delay . . . caused
substantial prejudice to the appellee’s rights to a fair trial and that the delay was an intentional device
to gain tactical advantage over the accused.” Id. at 324; Dykes, 803 S.W.2d at 255.

        In an earlier case, Holquist v. State, 489 S.W.2d 88 (Tenn. Crim. App. 1972), this court used
the rule in Marion to observe:
        While there is no constitutional right to be arrested, . . . courts have recognized that
        an unreasonable delay between the commission of the offense and the arrest may


                                                   -12-
       violate the defendant’s constitutional rights if the delay results in prejudice to him or
       was part of a deliberate, purposeful and oppressive design for delay.
Holquist, 489 S.W.2d at 93.

       The rule stated in Dykes is as follows:
       Before an accused is entitled to relief based upon the delay between the offense and
       the initiation of adversarial proceedings, the accused must prove that (a) there was
       a delay, (b) the accused sustained actual prejudice as a direct and proximate result of
       the delay, and (c) the State caused the delay in order to gain tactical advantage over
       or to harass the accused.
Dykes, 803 S.W.2d at 256.

        In Gray, our supreme court dealt with a forty-two-year pre-accusatorial delay. The facts of
Gray showed that the State was unaware of the commission of the alleged crime during this period.
The court in Gray held that the Marion-Dykes’ approach was extremely one-sided and stated, “It
places a daunting, almost insurmountable, burden on the accused by requiring a demonstration not
only that the delay has caused prejudice but also that the State orchestrated the delay in order to
obtain a tactical advantage.” Gray, 917 S.W.2d at 673.

        The Gray court then articulated the following standard: “In determining whether pre-
accusatorial delay violates due process, the trial court must consider the length of the delay, the
reason for the delay, and the degree of prejudice, if any, to the accused.” Id. at 673. The court
upheld the trial court’s dismissal of the indictment in Gray, holding that prejudice had been
established and that prosecution “would violate the concepts of fundamental fairness and substantial
justice embodied in the due process clause of the Fifth and Fourteenth Amendments of the United
States Constitution as well as Article I, § 8 of the Tennessee Constitution.” Id. at 674.

        In State v. Utley, 956 S.W.2d 489 (Tenn. 1997), our supreme court dealt with a case
involving a five-year delay from the time the State had knowledge of the offense until
commencement of prosecution. The Utley court limited the test used in Gray to cases in which the
State was unaware of the offense during an intervening delay. The Court held that although a five-
year delay triggers a due process analysis, the standard remains that as set forth in Marion and Dykes.
Id. at 495. That is, that the defendant must prove actual prejudice, it will not be presumed and the
defendant must also prove the State’s delay was to gain tactical advantage. Id.

       The case of State v. Carico, 968 S.W.2d 280 (Tenn. 1998), reaffirmed the Marion-Dykes
standard when the State was aware of the commission of the offense during the delay. The court in
Carico held that a delay of seven years was excessive but that the defendant had proven neither
prejudice nor use of the delay by the State for tactical advantage. Id. at 286.

        In overruling the defendant’s motion to dismiss, the trial court found that actual prejudice
had not been proven; that the missing tapes and witness statements may have supported an
alternative theory as to the perpetrator, but was not proven. The trial court further found that the


                                                 -13-
State had not caused the delay for tactical advantage but instead had lacked sufficient evidence until
the discovery of the projectiles.

        We conclude that the delay of thirteen years between the offense and indictment in this case
is excessive and triggers a careful review for possible due process violations. That being said, the
burden on the defendant to satisfy the two remaining prongs of the Marion-Dykes standard remains
daunting. “‘[T]ime’s erosion of exculpatory evidence and testimony ‘can rarely be shown[,]’ and
further ‘excessive delay presumptively compromises the reliability of a trial in ways that neither
party can prove or, for that matter, identify.’” Carico, 968 S.W.2d at 285 n.5 (quoting Doggett v.
United States, 505 U.S. 647, 656, 112 S. Ct. 2686 (1992)). However, we are instructed by Utley,
956 S.W.2d at 495, that “potential forms of prejudice cannot be presumed and instead must be
substantiated by the defendant.”

        The defendant, in an attempt to show actual prejudice, invites the court to speculate that the
missing witness tapes and statements would possibly contain exculpatory evidence favorable to the
defendant. That is not an option that we are either inclined or allowed to indulge. We agree with
the trial court that the defendant has failed to prove actual prejudice resulting from the pre-
accusatorial delay.

        Further, we conclude that there is no credible proof that the State intentionally caused a
thirteen-year delay in prosecuting the defendant in order to gain a tactical advantage. We agree with
the trial court that the State adequately explained the reason for the delay in prosecution.
Accordingly, the defendant has failed to show that the delay was designed to gain tactical advantage.
The motion to dismiss the indictment for due process violations was properly overruled.

                                     Defendant’s Statements

        In the defendant’s next issue, he asserts error by the trial court in denying a motion to
suppress two statements made by the defendant. The first statement was made in Las Vegas after
the defendant’s arrest by Nevada officers. Detectives Pridemore and Postiglione from Metro
Nashville Police, along with Assistant District Attorney General Thurman, met with the defendant
in Las Vegas. General Thurman briefly spoke to the defendant, outlining the charges he was facing
and the possible sentencing range, including the death penalty. As General Thurman was leaving
the room, the defendant stated that when he was arrested, he knew it had to be about Kevin.

        The defendant contends that this statement was the result of custodial interrogation, or its
functional equivalent, without the benefit of warnings required by Miranda v. Arizona, 384 U.S. 436,
86 S. Ct. 1602 (1966). The State concedes that the defendant was in custody and had not yet been
given Miranda warnings but maintains that the statement was spontaneous and not the result of
interrogation.




                                                -14-
       The trial court found as follows:
       After considering the testimony and the video tape of the Las Vegas meeting, the
       Court does not find that the communications with the Defendant in this case involved
       statements that the officers or General Thurman should have known were likely to
       elicit an incriminating response.

       The Court is of the opinion that the officers and General Thurman simply advised the
       Defendant of the charges and the possible range of punishment.

        A trial court’s findings of fact on a motion to suppress evidence will be upheld unless the
evidence preponderates otherwise. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). “The prevailing
party in the trial court is afforded the strongest legitimate view of the evidence and all reasonable
and legitimate inferences that may be drawn from the evidence.” State v. Carter, 16 S.W.3d 762,
765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998)). This court reviews
de novo the trial court’s application of the law to the facts, without according any presumption of
correctness to the trial court’s conclusions of law. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001).

        The right against self-incrimination is protected both by the United States Constitution,
Article V, and the Tennessee Constitution, Article I section 9. To protect these rights, certain
procedural safeguards of advising an individual in custody before interrogation are required. See
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). Statements made during custodial
interrogation without the benefit of Miranda warnings are inadmissible in court. See Dickerson v.
United States, 530 U.S. 428, 120 S. Ct. 2326 (2000). Miranda warnings are required only when the
defendant is in custody and is subjected to questioning or its functional equivalent. See Rhode Island
v. Innis, 446 U.S. 291, 100 S. Ct. 1682 (1980). In Innis, the Supreme Court elaborated on
“interrogation” for Miranda purposes:
        “[I]nterrogation” under Miranda refers not only to express questioning, but also to
        any words or actions on the part of the police (other than those normally attendant to
        arrest and custody) that the police should know are reasonably likely to elicit an
        incriminating response from the suspect. The latter portion of this definition focuses
        primarily upon the perceptions of the suspect, rather than the intent of the police.
        This focus reflects the fact that the Miranda safeguards were designed to vest a
        suspect in custody with an added measure of protection against coercive police
        practices, without regard to objective proof of the underlying intent of the police. A
        practice that the police should know is reasonably likely to evoke an incriminating
        response from a suspect thus amounts to interrogation. But, since the police surely
        cannot be held accountable for the unforeseeable results of their words or actions, the
        definition of interrogation can extend only to words or actions on the part of police
        officers that they should have known were reasonably likely to elicit an incriminating
        response.
Id. at 301-02 (footnotes omitted).




                                                -15-
        The defendant cites State v. Sawyer, 156 S.W.3d 531 (Tenn. 2005), as support for his
position. We view Sawyer as distinguishable from the instant facts. In Sawyer, an aggravated sexual
battery case, the defendant was taken handcuffed into a detective’s office and was read the detailed
allegations of the affidavit in support of the arrest warrant. Sawyer responded by admitting to
rubbing the victim’s leg but denied vaginal contact as alleged in the affidavit. Under the totality of
the circumstances, our supreme court affirmed the trial court’s suppression of the defendant’s
statement as the reading of the damning specifics of the affidavit was likely to elicit a response.

       The defendant’s statement in this case was not directly responsive to the charges and were
unforeseeable results of stating the crime charged and the possible range of punishment. The
defendant’s response is even subject to an innocent interpretation as opposed to being strictly
incriminating. We agree with the trial court that under the totality of circumstances, the defendant
was not justified in perceiving this explanation as an interrogation.

        The second statement by the defendant, which was sought to be suppressed, was made after
the defendant’s extradition to Nashville. Detective Pridemore was escorting the defendant into the
booking room, and the defendant began making inquiries as to whether his medicines were available
and where he would be housed in the jail. Detective Pridemore told the defendant that he would
probably be housed in the general population. The defendant then said words to the effect of, “I’ll
tell you about the case if you’ll give me a private room.” Detective Pridemore responded that it was
too late, and no further statements were made by the defendant.

       In the trial court’s order denying the defendant’s motion to suppress, the trial court held as
follows:
       The Court is also of the opinion that the communication from Detective Pridemore
       to the defendant, which occurred after they arrived in Davidson County, was in
       response to questions from the defendant regarding his medication and housing
       arrangements. For these reasons, the court does not find that the statements made by
       the defendant were elicited, nor did they constitute an interrogation.

         As noted before, the trial court’s findings of fact are conclusive on appeal unless the evidence
preponderates against those findings. Odom, 928 S.W.2d at 23. The application of the law to the
facts is reviewed de novo with no presumption of correctness, and cases involving mixed law and
fact questions are also subject to de novo review. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

       It is undisputed that the defendant, at the time of this statement, was in custody and had
invoked his right to counsel. Thus, our sole focus is to determine whether the statement in question
was made in response to improper police interrogation.

        The Supreme Court in Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880 (1981),
stated: “We further hold that an accused . . . , having expressed his desire to deal with the police
only through counsel, is not subject to further interrogation by the authorities until counsel has been



                                                  -16-
made available to him, unless the accused himself initiates further communication, exchanges, or
conversations with the police.” (emphasis added).

      We agree with the trial court that the defendant’s spontaneous offer to talk about the case in
exchange for a private cell was neither initiated by the officer nor was it interrogation.

                                     Crime Scene Photograph

        The defendant asserts that the trial court erred in admitting a photograph of the victim’s body
at the crime scene. The picture, which was displayed at trial on an overhead projector, shows the
victim’s body outstretched on the pavement where he was fatally shot. The victim’s torso is
exposed, and his pants are open just below the navel. A large pool of blood had accumulated to the
right of the victim, and the location of a spent projectile is marked. The trial court, after a jury-out
hearing, allowed the photograph in order to show the crime scene and the location of the projectile.

        The defendant maintains that the photograph was not relevant to any contested issue at trial
and, secondly, if found relevant, its probative value was substantially outweighed by the danger of
unfair prejudice.

        Tennessee courts follow a policy of liberality in the admission of photographs in both civil
and criminal cases. See State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978) (citations omitted).
Accordingly, “the admissibility of photographs lies within the discretion of the trial court” whose
ruling “will not be overturned on appeal except upon a clear showing of an abuse of discretion.” Id.
Notwithstanding, a photograph must be found relevant to an issue at trial with its probative value
outweighing any prejudicial effect before it may be admitted into evidence. See State v. Vann, 976
S.W.2d 93, 102 (Tenn. 1998). Photographs of a corpse are generally admissible in murder prosecutions
if they are relevant to the issues at trial. Banks, 564 S.W.2d at 950-51; see Tenn. R. Evid. 403.
Notwithstanding this broad interpretation of admissibility, evidence that is not relevant to prove
some part of the prosecution’s case should not be admitted solely to inflame the jury and prejudice
the defendant. Banks, 564 S.W.2d at 951.

        In keeping with our state’s policy of liberality in the admission of photographs, we conclude
that the photograph in question was probative in demonstrating the nature and extent of the injuries
of the attack and of showing premeditation. The photograph itself, in comparison to other crime
scenes, is not particularly gruesome or excessively morbid to the point of serving to inflame the jury.
Accordingly, we conclude that the trial court did not abuse its discretion in the admission of the
crime scene photograph.

                                               Hearsay

       Next, the defendant contends that the trial court erred in admitting certain hearsay statements
and “nonverbal hearsay” by the victim under the state of mind hearsay objection.



                                                 -17-
       Sharon Corbett testified that the victim was thinking of quitting his job at Cashbox, that he
was feeling a lot of pressure, and that he was unhappy and wanted to visit his parents.

      Gary Bradshaw said that the victim talked about going back home and that the victim had
enough of Cashbox.

        Kyle Hughes, the victim’s brother, testified concerning a phone conversation with the victim
on the evening of his death, wherein the victim seemed nervous and almost scared. The victim said
there were things he needed to discuss in person. The victim told his brother he loved him, which
he had never said on the phone.

       Sharon Pennington testified to telling the victim, on the day of his death, about two calls she
had received from Chuck Dixon that day. She said the victim replied that he expected Chuck to be
upset and that the victim appeared nervous, anxious, and, obviously, a little bit intimidated.

        Sandra Daens testified that the victim had expressed suspicion that the Cashbox charts were
being changed in his absence. The trial court cut this testimony short. Ms. Daens then testified that
the defendant acted afraid.

        The defendant argues that the above testimony was not relevant because the victim’s state
of mind was not directly probative of whether the defendant committed murder. In addition, the
defendant points out that the state of mind hearsay exception (Rule 803.3) is only accessible to prove
the declarant’s conduct and not a third party’s conduct. Finally, the defendant contends that the
admission of this hearsay violated the recent decision of Crawford v. Washington, 541 U.S. 36, 124
S. Ct. 1354 (2004).

        Tennessee Rule of Evidence 803(3), as a state of mind hearsay exception, states in pertinent
part: “[a] statement of the declarant’s then existing state of mind, emotion, sensation, or physical
condition (such as intent, plan, motive, design, mental feeling, pain and bodily health)” may be
admitted as an exception to the hearsay rule. The Advisory Commission Comments make it clear
that the rule contemplates the declarant’s conduct and not a third party’s conduct.

        The defendant correctly contends that the victim’s state of mind was not probative of whether
the defendant killed the victim. However, the defendant further contends that the State did not seek
to use this evidence to prove any conduct of the victim. We disagree. The hearsay statements at
issue show the victim’s discontent with his situation at Cashbox and his intent to leave his
employment there.

        The evidence is relevant for the potential implications on the chart-fixing conspiracy by the
departure of a troubled and discontented employee with insider knowledge. Evidence is relevant if
it has “any tendency to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the evidence.” Tenn. R. Evid.
401. Once the court concludes the evidence is relevant, the court should exclude the evidence if its


                                                -18-
probative value is substantially outweighed by its prejudicial effect. Tenn. R. Evid. 403; State v.
James, 81 S.W.3d 751, 757 (Tenn. 2002). A trial court’s decision as to the relevance of evidence
under Rule 401 will be reversed only upon a showing of abuse of discretion. State v. Powers, 101
S.W.3d 383, 395 (Tenn. 2003).

        We therefore conclude that the victim’s expressions of feeling pressure, unhappiness with
his job at Cashbox, and suspicion of wrongdoing were all indicative of the victim’s state of mind at
the time of expression. The victim’s expressions of intent to leave Cashbox would likewise be
admissible hearsay as indicative of his intent. The witnesses’ observations that the victim seemed
nervous, upset, or intimidated are not hearsay but are the witnesses’ own subjective characterization
of the victim’s behavior. We do not believe Crawford to be applicable to the instant testimony. The
holding therein forbade testimonial evidence unless the declarant was unavailable and there had been
a prior opportunity to cross-examine. We do not characterize the victim’s statements at issue as
testimonial in nature.

                                   Hearsay Statements by Dixon

        In the defendant’s next issue, he argues that the trial court erred in admitting certain hearsay
statements by Chuck Dixon under the co-conspirator exception. Specifically, the defendant contends
that the State failed to prove a conspiracy existed between the defendant and Dixon and that the
statements at issue were not made in furtherance of a conspiracy. Furthermore, the defendant argues
that the statements are barred by Crawford v. Washington.

        One of the numerous exceptions to the hearsay rule is “a statement by a co-conspirator of a
party during the course of and in furtherance of the conspiracy.” See Tenn. R. Evid. 803(1.2)(E).
 In order for a statement to be admissible under this exception, the prosecution must establish: (1)
evidence of the existence of a conspiracy and the connection of the declarant and the defendant to
that conspiracy; (2) that the declaration was made during the pendency of the conspiracy; and (3) that
the declaration was made in furtherance of the conspiracy. See State v. Henry, 33 S.W.3d 797, 801-
02 (Tenn. 2000). These must be established by a preponderance of the evidence. See State v.
Stamper, 863 S.W.2d 404, 406 (Tenn. 1993). Proof of the conspiracy may be circumstantial, based
on the conduct of the parties. See State v. Alley, 968 S.W.2d 314, 316 (Tenn. Crim. App. 1997).
“[A] conspiracy is, in general terms, a combination of two (2) or more persons, by concerted action,
to accomplish some criminal or unlawful purpose.” State v. Walker, 910 S.W.2d 381, 384 (Tenn.
1995).

        We begin our analysis by a review of the evidence relied upon by the State to establish a
conspiracy by Dixon and the defendant. Tom McEntee testified that the defendant replaced him as
division manager at Cashbox in April of 1987 and was there until 1988 or 1989 when the defendant
left Cashbox to work with Chuck Dixon. Sharon Pennington stated that Dixon controlled Cashbox
despite not being an employee and that his control was so well publicized that the magazine was
called “Chuckbox” in the music community. She also knew the defendant had a business



                                                 -19-
relationship with Dixon. Gene Kennedy stated his belief that Dixon and the defendant controlled
the Cashbox charts and related the requirements of Dixon to obtain a chart position.

        Richard Metzger confirmed the details of the requirements of hiring Dixon and subscribing
for a Cashbox ad in order to be charted. He stated that some of his clients paid the defendant directly
and that Dixon shared in the money. When Metzger expressed his concerns about the victim
potentially causing problems with the charting methods, Dixon assured him, in the defendant’s
presence, that the victim would be handled or would be gone. The defendant was at that time a
partner with Dixon, although not a Cashbox employee. Carolyn Cox, the former wife of the
defendant, testified as to the dramatic increase of the defendant’s standard of living after the
defendant left Cashbox and began working with Dixon.

       Other witnesses testified as to the close association of Dixon and the defendant. Some
examples of the manipulation of the Cashbox charts were so blatant as to be farcical. Sammy Sadler,
who was promoted by Dixon, was nominated for Independent Male Vocalist of the Year despite
having no records or artistic appearances. Robert Metzger recounted another artist’s song which
made the charts before the record was ever manufactured. It, too, was promoted by Dixon. Sandra
Daens, a Cashbox employee, had heard the defendant tell promoters or artists that buying a Cashbox
ad would move their record up on the charts.

        Our review of the evidence leads us to conclude that the State, by a preponderance of the
evidence, established that Dixon and the defendant engaged in a conspiracy to manipulate the
Cashbox charts for their personal gain. We must now examine the defendant’s contention that the
particular statements were not made in the course of and furtherance of the conspiracy.

        The defendant contends that the statements made by Dixon in his two phone calls to Sharon
Pennington on the day of the victim’s murder were not in furtherance of a conspiracy to either
manipulate the charts or to murder the victim. We strongly disagree. The object of Dixon’s call was
to dissuade the victim from changing the chart system and deleting the pocket stations. The
conspiracy to murder can be seen as a subset to the goal of maintaining the illegitimacy of the chart
system that sustained the conspirator’s illegal enterprise. It is immaterial that the defendant was not
a party to the conversation. Once the conspiracy is established, it is unreasonable to expect that the
parties to the conspiracy will act together on each step of furtherance. The same would apply to
Dixon’s statement to Metzger that the victim would be handled or be gone. It is fundamental to this
hearsay exception that Dixon spoke for the defendant, as in an agency relationship.

        However, the statement by Dixon to Bradshaw that certain people could suffer the same fate
as the victim is less obvious as furthering the conspiracy. The objects of Dixon’s anger were not
present, and the statement seems to be more in the nature of foolish boasting than assisting the
conspiracy. In light of the weight of the other evidence, we deem it as harmless error.

        As for the contention that the co-conspirator statements violate Crawford v. Washington, we
do not agree. That holding would disallow admission of a witness’s testimonial statements unless


                                                 -20-
he was unavailable and the defendant had been given an opportunity for cross-examination.
Crawford, 541 U.S. at 60. The statements at issue are clearly not testimonial in nature and would
not be subject to the same strictures.

                                 Dixon’s Relationship to Cashbox

        The defendant next asserts that the trial court erred in admitting testimony concerning the
business and conduct of Chuck Dixon, relating to Cashbox magazine and the music industry. The
defendant asserts that the evidence was irrelevant and unduly prejudicial because it tended to show
the guilt of the defendant based merely on association.

        In this issue, the defendant argues that the testimony given by Gary Bradshaw, Sammy
Sadler, Gene Kennedy, Sharon Pennington, Richard Metzger, and Mara Langlois, concerning the
business practices of Chuck Dixon, were erroneously admitted. The defendant’s assertion of
irrelevance has been previously addressed in that these practices were the actions of a co-conspirator
with the defendant and probative of the conspirators’ motives.

        As the major figure in the scheme to profit from the manipulation of the Cashbox charts, it
was natural that Dixon was the focus of much of the evidence. It is no less true that the evidence
established that the defendant was in league with Dixon, albeit in a subordinate capacity.

       The defendant’s reliance on Tennessee Rule of Evidence 403 is misplaced. Rule 403 requires
exclusion of evidence, even when relevant, if the “probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste or needless presentation of cumulative evidence.” Tenn. R. Evid. 403. We
conclude that the evidence at issue is not unfairly prejudicial nor does it share any of the other
negative factors contained in the Rule.

                                         Tape Recordings

        Next, the defendant asserts that the trial court erred in admitting a tape recording and
transcript of two phone conversations between the defendant and Steve Daniel.

         The defendant first argues that the recording is inaudible to the degree that it is irrelevant
under Tennessee Rule of Evidence 401 and unfairly prejudicial under Tennessee Rule of Evidence
403. In addition, the defendant contends that the jury should not have been furnished a transcript
as it, combined with the poor audio quality, was unduly suggestive.

        The general rule in Tennessee concerning tape recordings is that the audibility of the tape
goes to the weight of the evidence and not its admissibility. State v. Beasley, 699 S.W.2d 565, 569
(Tenn. Crim. App. 1985). The practice of submitting tape recordings and transcripts when properly
authenticated by a person present or who monitored the conversation, has been approved. State v.



                                                 -21-
Smith, 656 S.W.2d 882, 888 (Tenn. Crim. App. 1983); State v. Jones, 598 S.W.2d 209, 223 (Tenn.
1980).

       In the instant case, the trial court previewed the tape and observed that it was a “strain” to
understand but admitted both the tape and transcript. We also have taken opportunity to listen to the
tape and found it of poor quality, but not inaudible. The trial court took the further precaution upon
admitting the evidence to instruct the jury as follows:
       THE COURT:          Okay. Let me mention to you, Members of the Jury, that you’re
                           going to be provided with transcripts that purports to be a
                           transcription of the tape that you’re going to be listening to. The
                           actual evidence is the tape, which you’ll be hearing. And – and
                           frankly, the tape, some of it is difficult to hear. You have to,
                           really, kind of strain to hear the tape. And I would say to you
                           that, if there are differences from your listening to the tape, from
                           what you’re reading on the transcript, then you would rely on
                           what you hear on the tape. The transcript is provided to you to
                           aid you in listening to it, to read along with it, and so forth. And
                           I might also add in– later, in the trial, in your deliberations, you’ll
                           be able to take this tape to the deliberation room if you need to
                           listen to it better. This room, as the people have mentioned, kind
                           of – the acoustics are not that great. And if you needed to hear it,
                           again, you could. But I’m emphasizing that the tape is the
                           evidence, not the transcript.

        We conclude that the trial court properly admitted the evidence and gave an appropriate
instruction that cautioned against any undue influence from the transcript.

                                 Aiding and Abetting Instruction

        The defendant’s final issue attributes error to the trial court in instructing the jury on the
theory of aiding and abetting. The defendant contends that this instruction effectively lessened the
State’s burden of proof to establish his identity as the perpetrator of the murder.

        A defendant has a right to a correct and complete charge of the law, so that each issue of fact
raised by the evidence will be submitted on proper instructions. State v. Garrison, 40 S.W.3d 426,
432 (Tenn. 2000). In criminal cases, a trial court has a duty to fully instruct the jury on the general
principles of law relevant to the issues raised by the evidence and the principles which are “closely
and openly connected with the facts before the court, and which are necessary for the jury’s
understanding of the case.” State v. Elder, 982 S.W.2d 871, 876 (Tenn. Crim. App. 1998).




                                                 -22-
        Herein, the trial court acceded to the State’s request for a jury instruction on aiding and
abetting.1 The defendant submits that, although the State’s theory was that the defendant was the
shooter, the aiding and abetting charge lessened the State’s burden of proof in establishing the
defendant as the actual gunman beyond a reasonable doubt. The State counters that because a
positive identification of the gunman was not possible, the instruction was necessary to show a
shared intent to murder would be equally culpable. Furthermore, the trial court gave an instruction
that required the proof of the identity of the perpetrator beyond a reasonable doubt, whether as
principal or an aider or abettor.

        Upon review of the entire record and the respective instructions in this regard, we agree with
the State and find no error concerning the aiding and abetting instruction.

                                                     Conclusion

       Having found no reversible error, we hereby affirm the conviction of the defendant for first
degree premeditated murder.




                                                                 ___________________________________
                                                                   JOHN EVERETT WILLIAMS, JUDGE




         1
           This offense occurred prior to the effective date of the Criminal Sentencing Reform Act of 1989; thus, the
prior theory of aiding and abetting was applicable. It was subsumed into the theory of criminal responsibility. See Tenn.
Code Ann. § 39-11-402.

                                                         -23-
