        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs January 29, 2013

                STATE OF TENNESSEE v. QUINZELL GRASTY

                 Appeal from the Criminal Court for Hamilton County
                         No. 272582    Don W. Poole, Judge


                  No. E2012-00141-CCA-R3-CD - Filed April 10, 2013


A Hamilton County jury convicted appellant, Quinzell Grasty, of felony murder, second
degree murder, attempted especially aggravated robbery, and aggravated burglary. The trial
court merged the second degree murder conviction into the felony murder conviction and
sentenced appellant to serve a life sentence for felony murder. The trial court also sentenced
appellant to serve eight years for attempted especially aggravated robbery and three years for
aggravated burglary, to be served concurrently in the Tennessee Department of Correction.
On appeal, appellant argues that the trial court erred by denying his motion to suppress his
statements to police, by admitting photographs of the victim and a recording of the 9-1-1 call,
by failing to redact references to appellant’s gang affiliation from his statement, and by
admitting demonstrative evidence in the form of a shotgun purported to be similar to the
weapon used in the murder. Discerning no error, we affirm the judgments of the trial court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which A LAN E. G LENN and J EFFREY
S. B IVINS, JJ., joined.

Donna Miller (on appeal) and Robin R. Flores (at trial), Chattanooga, Tennessee, for the
appellant, Quinzell Grasty.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Smith, Associate Deputy
Attorney General; William H. Cox, III, District Attorney General; and Cameron Williams
and Lance Pope, Assistant District Attorneys General, for the appellee, State of Tennessee.
                                          OPINION

                                            I. Facts

       This case concerns the April 16, 2009, shooting death of Steven Matthew Coyle
during a home invasion burglary and attempted robbery. A Hamilton County grand jury
indicted appellant and a co-defendant for first degree murder, felony murder, attempted
especially aggravated robbery, and aggravated burglary. The trial court severed the trials of
appellant and his co-defendant and held appellant’s trial from October 5 through 8, 2009.

        At appellant’s trial, Chattanooga Police Officer Annette Butler testified that on April
16, 2009, she was dispatched to a residence on Standifer Gap Road in response to a shooting.
When she arrived at the location, a man directed her to the victim’s bedroom. Officer Butler
found the victim lying on the floor and a female kneeling beside him. Officer Butler checked
the victim’s pulse and determined that he was deceased. Over appellant’s objection, the State
introduced photographs of the deceased victim as Officer Butler found him. Officer Butler
testified that the back door of the residence had been “kicked in.”

        Sarah Gill testified that she had been dating the victim for six to eight months prior
to his death. She had been living with him at the Standifer Gap residence since December
2008, along with his roommate, Samuel Eldridge; Mr. Eldridge’s son; and occasionally Mr.
Eldridge’s fiancee. Ms. Gill testified that she and the victim were awakened by a “crashing
sound” on April 16, 2009. She thought something had fallen, but the victim believed “it was
somebody breaking in.” The victim got out of bed, picked up a pocket knife, and approached
the bedroom door. As he started to open the door, Ms. Gill “heard [a shot] and saw blood.”
At first she thought someone was playing a joke on them, but when she saw the victim’s
wound, she called 9-1-1 from her cellular telephone. The State played the recording of Ms.
Gill’s 9-1-1 call for the jury. Ms. Gill called Mr. Eldridge from another telephone while she
spoke with the 9-1-1 operator, and he arrived shortly before the police. Ms. Gill testified that
she learned shortly after moving in that Mr. Eldridge sold hydrocodone and marijuana from
the residence. She knew that he had several guns in the house.

        Samuel Eldridge testified that he received a telephone call from Ms. Gill at 9:16 a.m.
on April 16, 2009, while he was at work. He immediately went home and went straight to
the victim’s bedroom. Mr. Eldridge found the victim lying on the floor next to his bed. He
testified that the victim was already deceased. Mr. Eldridge talked to the 9-1-1 operator. He
testified that he “was emotionally disturbed” during that conversation. The police arrived
at the house thirty-five to forty seconds after he arrived. Mr. Eldridge testified that he had
never seen appellant prior to the trial. He said that the Sunday before the victim’s murder,



                                              -2-
he sold marijuana to a person named Mark at the Standifer Gap residence. Mr. Eldridge said
that he had two handguns and an SKS rifle and that Mark saw the SKS rifle.

        On cross-examination, Mr. Eldridge agreed that he had told the police a person named
Thaddeus Watson, who had robbed him in the past, might have been responsible. He said
that the police did not find any drugs at the residence and that he did not try to arrive before
the police to hide his drugs. Mr. Eldridge agreed that he was not prosecuted on drug or
weapons charges after the victim’s death.

        Cordarious Holloway testified that in April 2009, Trammel Poindexter, a friend of his
since eighth grade, called him for a ride one day. Mr. Poindexter also asked him to pick up
appellant, “Mike,” and a third individual. Mr. Holloway did not know appellant prior to that
day. Mr. Poindexter and the other men gave Mr. Holloway directions to an area near the
Rainbow Creek apartment complex. He recalled that they drove past a particular house three
to four times because either his passengers did not know where they were going or he missed
the directions because he was sending text messages while driving. Mr. Holloway parked
at the Rainbow Creek apartments and told his passengers that they “need[ed] to find out what
[they were] going to do.” Someone exited the vehicle and came back while he was parked,
but Mr. Holloway did not know which passenger. The other men told Mr. Holloway to drive
back down the street. He complied, and they asked him to turn around because they “passed
it again.” Mr. Holloway pulled over, and he told Mr. Poindexter to drive his car and take
care of whatever they were planning to do while he walked to a place to use the restroom.
Mr. Poindexter and the other passengers drove away, and Mr. Holloway walked down the
street. Eventually, Mr. Poindexter and the others returned to pick him up. Mr. Poindexter
continued to drive the car, and he took Mr. Holloway home. Mr. Holloway did not notice
anything different about the demeanor of any of the passengers during the drive, including
appellant. He said that he did not “hear any conversation about hitting a lick or a robbery.”

       Mr. Holloway testified that later that day, he heard about a murder near Rainbow
Creek on the news. He had also heard “that some stuff was on the street said [sic] about me
being out there at that time.” Mr. Holloway approached a police officer at a McDonald’s
restaurant to tell him that he had been in the area of the murder earlier in the day. The officer
had him talk with a detective. Mr. Holloway talked with one detective and then talked with
Detective James Holloway.1 At the behest of the police, Mr. Holloway called Mr. Poindexter
to ask whether Mr. Poindexter and the others had done anything while he was not with them.
Mr. Holloway also talked to Mr. Poindexter in person while wearing a recording device.




       1
           Detective Holloway is not related to Cordarious Holloway.

                                                  -3-
        Jonathan Mance, a former Chattanooga Police officer with the crime scene office,
testified that on April 27, 2009, he collected DNA samples using buccal swabs from
appellant, Cordarious Holloway, Trammel Poindexter, Michael Adams, and Avery Davis.

       Chattanooga Police Detective James Holloway testified that he was the lead
investigator for the Coyle homicide. He responded to the crime scene on April 16, 2009. As
he walked through the scene, he observed that the rear door appeared to have been forced
open. He observed the victim “[l]ying in the floor just inside the doorway of his bedroom.”
Detective Holloway also interviewed Sarah Gill and Samuel Eldridge and canvassed the
neighborhood for leads.

         At approximately 7:30 p.m. on April 16th, Detective Holloway “received a phone call
. . . from the police dispatch, stating that an Officer Tyrone Williams requested [he] call
him.” He called Officer Williams, who told him that Cordarious Holloway had approached
him and said “that he [thought] he may have transported the suspects out to the scene.”
Detective Holloway asked Investigator Carl Fields to go talk to Cordarious Holloway and
Officer Williams. Eventually, Detective Holloway met Cordarious Holloway at the police
service center and interviewed him at approximately 10:00 p.m. Cordarious Holloway gave
Detective Holloway names and nicknames of the people who might have been involved in
the victim’s death.

       The police recorded telephone conversations between Cordarious Holloway and
Trammel Poindexter, but they did not “get any viable information” from those conversations.
On April 27, 2009, the police placed a recording device on Cordarious Holloway and had
him speak to Mr. Poindexter in person. Based on that conversation, Detective Holloway
developed appellant as a suspect. The same day, Detective Holloway asked the police
department’s fugitive unit to bring Trammel Poindexter, appellant, and Michael Adams to
the police service center. Detective Holloway began interviewing Trammel Poindexter at
6:59 p.m. He interviewed Michael Adams at 8:18 p.m.

       According to Detective Holloway, the fugitive unit located appellant at approximately
“19:26 or 19:30 on the 27th.” The fugitive unit brought appellant to the police service center.
Detective Holloway informed appellant of his rights, and appellant waived his rights and
agreed to speak with him. During the trial, the State played an audio recording of appellant’s
statement to police. After telling several different versions of events, appellant told
Detective Holloway that several weeks before the murder, a white man named “Mark” told
him about a person named “Sam,” who would be a good target to rob because he had lots of
drugs, money, and guns. On April 16th, appellant suggested to Trammel Poindexter, Michael
Adams, and others that they should burglarize Sam’s house. They all rode together in a
small, white car to Sam’s house. Michael Adams kicked in the back door. Appellant had a

                                              -4-
sawed-off shotgun that had been stored in a black backpack. He described the shotgun as
having one barrel and as being sixteen to eighteen inches in length. He also described how
the shotgun opened. Appellant said that he was checking to see if anyone was in the child’s
bedroom when the victim opened a door behind him. Appellant “was just turning around,
. . . and the gun went off.” He said that he did not “mean to kill the man” and that he wished
he could tell the family that he was sorry. Appellant said that he did not know what
happened to the gun.

        On May 6, 2009, appellant contacted Detective Holloway through the correctional
center’s employees. Detective Holloway had appellant brought to the police service center
and interviewed him again after appellant signed a second rights waiver form. The State also
played an audio recording of appellant’s second statement. In his statement, appellant said
that he had heard that the others involved were planning to let him take all of the blame. He
told Detective Holloway that Michael Adams shot the victim. Michael Adams was under
house arrest at the time, so he asked appellant to “take the charge” for him. Appellant said
that he had been in a gang but had “dropped [his] flag” because the other gang members had
not supported him after he was arrested. He also said that he had been threatened by various
people because he told the police that Michael Adams was involved in the burglary.

       On cross-examination, Detective Holloway testified that he asked the fugitive unit to
bring appellant to the police service center because Trammel Poindexter named appellant as
the shooter during Poindexter’s conversation with Cordarious Holloway. When Detective
Holloway interviewed Mr. Poindexter, he identified appellant as one of the individuals “who
entered the residence and who had subsequently talked about the shooting and that he had
done the shooting.” Detective Holloway agreed that the police discovered a mixture of three
different DNA profiles on a backpack found at the crime scene, and neither Trammel
Poindexter nor appellant could be excluded as contributors of the DNA.

       Chattanooga Police Officer Brian Russell of the crime scene unit testified that he
participated in the initial walk-through of the crime scene at 7616 Standifer Gap Road on
April 16, 2009. He recalled seeing a black backpack in the living room, but no one collected
it. On May 7, 2009, Samuel Eldridge’s mother brought the backpack to the police service
center because she found it while cleaning the residence and did not know to whom it
belonged.

       Chattanooga Police Investigator Greg Mardis testified that he responded to the crime
scene at 7616 Standifer Gap Road on April 16, 2009. He identified photographs of the crime
scene and noted the location of shotgun wadding and a pocketknife in relation to the victim.
He collected the shotgun wadding and pocketknife as evidence.



                                             -5-
       The trial court accepted Tennessee Bureau of Investigation (“TBI”) Agent Mark
Dunlap as an expert in DNA and serology. Agent Dunlap tested six areas of the black
backpack provided to him by the Chattanooga Police Department for DNA. He found DNA
from at least four individuals and concluded that Trammel Poindexter and appellant could
not be excluded as contributors. On cross-examination, Agent Dunlap testified that Michael
Adams and Cordarious Holloway could be excluded as contributors to the DNA on the
backpack.

        The trial court accepted TBI Agent Steven Scott as an expert in firearms. The
Chattanooga Police Department sent him shot shell wadding in association with this case,
and he concluded that the wadding was consistent with a twelve-gauge, Winchester AA type
wadding. Agent Scott also received “[eighteen] fired lead birdshot pellets” that he
determined to be “number seven and a half birdshot” based on “size and weight
specifications.” Agent Scott explained that when pellets leave a shotgun, “they are together
in one mass.” From a twelve-gauge shotgun, the pellets begin to spread into a cone-shaped
pattern after traveling five to seven feet from the muzzle of the gun. For demonstration
purposes, Agent Scott produced a shotgun from the TBI collection that he had modified
based on appellant’s description given during his first statement to the police. He explained
that the hammer would have to be cocked on the weapon to allow a person to pull the trigger.
Agent Scott demonstrated for the jury that the sawed-off shotgun could be placed inside the
black backpack previously entered as an exhibit.

       Dr. James Kenneth Metcalfe, a pathologist at the Hamilton County Medical
Examiner’s Office, testified that the victim died from a gunshot wound to the head. He
described the wound as having “a central cluster in which [there was] a hole and then some
small holes around the margin on the skin.” He estimated that there were 230 pellets inside
the victim’s skull. Dr. Metcalfe removed eighteen pellets as a sample. He opined that no
medical intervention would have prevented the victim from dying.

       Following the close of proof and deliberations, the jury convicted appellant of felony
murder, the lesser-included charge of second degree murder, attempted especially aggravated
robbery, and aggravated burglary. The trial court merged the second degree murder
conviction into the felony murder conviction and sentenced appellant as a violent offender
to serve a life sentence for felony murder. The trial court sentenced appellant as a Range I,
standard offender to serve eight years for attempted especially aggravated robbery and three
years for aggravated burglary, to be served concurrently in the Tennessee Department of
Correction. The trial court denied appellant’s motion for new trial, and this appeal follows.




                                             -6-
                                         II. Analysis

                                    A. Motion to Suppress

       For his first issue, appellant contends that the trial court erred by denying his motion
to suppress his statements to the police as fruit of an illegal warrantless arrest. The State
responds that appellant has waived this issue on appeal by failing to include the transcript of
the motion hearing in the appellate record.

        The record evinces that appellant filed a motion to suppress his statements. The trial
court held a hearing on the motion to suppress and denied the motion after finding that the
police had probable cause to arrest appellant. However, appellant failed to include in the
appellate record a transcript of the hearing on the motion to suppress. The appellant has the
duty to ensure that the record on appeal “conveys a fair, accurate[,] and complete account of
what transpired with respect to the issues forming the basis of the appeal.” State v. Ballard,
855 S.W.2d 557, 560-61 (Tenn. 1993). Generally, the failure to include the transcript of a
suppression hearing will result in a waiver of the issue. See Tenn. R. App. P. 24(b);
Thompson v. State, 958 S.W.2d 156, 172 (Tenn. Crim. App. 1997). Thus, the appellant has
waived this issue on appeal. However, based on the scant record before us, it appears that
the trial court correctly denied appellant’s motion to suppress.

        After an evidentiary hearing on the merits of a motion to suppress, we attribute to the
factual findings of the trial court the weight of a jury verdict. State v. Makoka, 885 S.W.2d
366, 371 (Tenn. Crim. App. 1994). We review de novo the trial court’s legal conclusions
denying a motion to suppress. State v. Northern, 262 S.W.3d 741, 747 (Tenn. 2008)
(citations omitted). In doing so, we give deference to the trial judge’s findings of fact unless
the evidence preponderates otherwise. Id.; see State v. Ross, 49 S.W.3d 833, 839 (Tenn.
2001); State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). “‘[C]redibility of the witnesses, the
weight and value of the evidence, and resolution of conflicts in the evidence are matters
entrusted to the trial judge as the trier of fact.’” Northern, 262 S.W.3d at 747-48 (quoting
Odom, 928 S.W.2d at 23). In reviewing the findings of fact, evidence presented at trial may
“‘be considered by an appellate court in deciding the propriety of the trial court’s ruling on
the motion to suppress.’” State v. Garcia, 123 S.W.3d 335, 343 (Tenn. 2003) (quoting State
v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001)). The prevailing party on the motion to suppress
is afforded the “‘strongest legitimate view of the evidence and all reasonable and legitimate
inferences that may be drawn from that evidence.’” Northern, 262 S.W.3d at 748 (quoting
State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998)); see State v. Daniel, 12 S.W.3d 420, 423
(Tenn. 2000); Odom, 928 S.W.2d at 23.



                                              -7-
        We begin with the proposition that “[b]oth the state and federal constitutions protect
against unreasonable searches and seizures; the general rule is that a warrantless search or
seizure is presumed unreasonable and any evidence discovered is subject to suppression.”
State v. Echols, 382 S.W.3d 266, 277 (Tenn. 2012). Our supreme court has recognized three
categories of police interactions with private citizens: “(1) a full-scale arrest, which requires
probable cause; (2) a brief investigatory detention, requiring reasonable suspicion of
wrongdoing; and (3) a brief police-citizen encounter, requiring no objective justification.”
Id. (citing State v. Daniel, 12 S.W.3d 420, 424 (Tenn. 2000)). “‘While arrests and
investigatory stops are seizures implicating constitutional protections, consensual encounters
are not.’” Id. (quoting State v. Nicholson, 188 S.W.3d 649, 656 (Tenn. 2006)).

        An arrest supported by probable cause is an exception to the warrant requirement. Id.
(citing State v. Hanning, 296 S.W.3d 44, 48 (Tenn. 2009)); see Brown v. Illinois, 422 U.S.
590, 598 (1975). “Probable cause . . . exists if, at the time of the arrest, the facts and
circumstances within the knowledge of the officers, and of which they had reasonably
trustworthy information, are ‘sufficient to warrant a prudent [person] in believing that the
[defendant] had committed or was committing an offense.’” Echols, 382 SW.3d at 277-78
(quoting State v. Bridges, 963 S.W.2d 487, 491 (Tenn. 1997)); see Beck v. Ohio, 379 U.S.
89, 91(1964). “‘Probable cause must be more than a mere suspicion.’” Echols, 382 S.W.3d
at 278 (quoting State v. Lawrence, 154 S.W.3d 71, 76 (Tenn. 2005). However, probable
cause “‘deal[s] with probabilities[,] . . . not technical[ities,] . . . the factual and practical
considerations of everyday life on which reasonable and prudent [persons] . . . act.’” Id.
(quoting State v. Day, 263 S.W.3d 891, 902 (Tenn. 2008)); see Brinegar v. United States, 338
U.S. 160, 175 (1949). Moreover, a determination of probable cause encompasses the
accumulation of information known to law enforcement collectively if a sufficient nexus of
communication exists between the arresting officer and a fellow officer with pertinent
knowledge. Echols, 382 S.W.3d at 278 (citation omitted). “If the arresting officers rely in
part on information from an informant from the criminal milieu, they must be able to
demonstrate that the informant (1) has a basis of knowledge and (2) is credible or his
information is reliable.” State v. Lewis, 36 S.W.3d 88, 98 (Tenn. Crim. App. 2000).

        In this case, there is little information in the record regarding the issues underlying
appellant’s motion to suppress other than the trial court’s order denying the motion. The trial
court found that the police arrested appellant without a warrant but that they had probable
cause for the arrest. According to the trial court’s findings of facts, Detective Holloway
testified at the motion hearing that Cordarious Holloway reported to the police “that there
had been a plan to commit burglary and [that] he drove his vehicle with five or six occupants
by the crime scene several times.” Cordarious Holloway led the police to Trammel
Poindexter, who named appellant as the shooter twice, once when he did not know that the
police were recording him and again when the police interviewed him. Based on this

                                               -8-
information, Detective Holloway had the fugitive unit bring appellant to the police service
center. The trial court found that the police had probable cause to arrest appellant at the time
they took him into custody. The trial court further found that “the arrest was based on
information from two of three or more co-conspirators” who had a personal basis of
knowledge of appellant’s participation in the burglary, “even if their bas[e]s of knowledge
of his precise role in the death of the victim was not” personal, and whose “accounts were
credible, not being anonymous and being self-inculpatory, consistent over time, and
consistent with the offenses, the defendant’s admission . . . , and . . . one another.”

        On appeal, appellant argues that the police did not have probable cause to arrest him,
analogizing his case to State v. Courtney Bishop, No. W2010-01207-CCA-R3-CD, 2012 WL
938969, at *9-10 (Tenn. Crim. App. March 14, 2012), perm app. granted (Tenn. Aug. 15,
2012). In Bishop, the police detained a suspect who implicated himself as participating in
a plan to rob the victim but indicated that Bishop was the person who actually robbed and
killed the victim. Id. at *9. This court determined that the police did not have probable cause
to arrest appellant because the suspect’s statement was “an entirely self-serving and only
partially inculpatory statement,” and there was no corroboration for the statement. Id. at *9-
10. The key difference between Bishop and the case under review is that Trammel
Poindexter implicated appellant when he had no knowledge that the police were recording
him, thus making his statement far more credible than the suspect’s in Bishop.

       Appellant also takes issue with the inconsistency between Cordarious Holloway’s trial
testimony and pretrial statements to the police. At trial, Cordarious Holloway denied any
knowledge of a burglary, contrary to Detective Holloway’s testimony at the motion hearing.
However, whether the police had probable cause is determined by their knowledge at the
time of arrest, and nothing in the record preponderates against the trial court’s finding that
Cordarious Holloway indicated to the police prior to appellant’s arrest that he was aware of
the burglary plan.

        Based on the limited record before this court, we conclude that the trial court did not
err by denying appellant’s suppression motion. Detective Holloway testified at trial and at
the motion hearing that information from Cordarious Holloway led the police to Trammel
Poindexter, who named appellant as the shooter when, unbeknownst to him, the police were
recording his conversation. The police had credible information from criminal informants
with personal knowledge of appellant’s participation in the burglary that led to the victim’s
death; therefore, the police had probable cause to arrest appellant. Appellant is without relief
as to this issue.




                                              -9-
                 B. Admissibility of Evidence (Appellant’s Issues 2 & 3)

        The determination of whether evidence is admissible at trial is a matter left to the
sound discretion of the trial court and will not be reversed absent an abuse of that discretion.
State v. Dellinger, 79 S.W.3d 458, 485 (Tenn. 2002); State v. McLeod, 937 S.W.2d 867, 871
(Tenn. 1996). “Relevant evidence” is “evidence having 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. All relevant evidence
is admissible unless specifically excepted by constitution, statute, rules of evidence, or rules
of general application. Tenn. R. Evid. 402. One such exception sets forth that relevant
evidence may be excluded “if its 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 of time, or needless presentation of cumulative evidence.” Tenn. R. Evid.
403.

                                       1. Photographs

       Appellant argues that the trial court erred by admitting photographs of the victim and
the crime scene when the probative value of the photographs was substantially outweighed
by the danger of unfair prejudicial effect. The State responds that the trial court properly
admitted the photographs as they were not particularly gruesome and were corroborative of
witnesses’ testimonies.

        Tennessee Rules of Evidence 401, 402, and 403 govern the admissibility of the
photographs in this case. See State v. Banks, 564 S.W.2d 947, 949-51 (Tenn. 1978). First,
a witness with knowledge of the facts must verify and authenticate a photograph before it can
be admitted into evidence. Id. at 949. Next, a trial court must first determine whether the
photograph is relevant. Id; see Tenn. R. Evid. 401. Irrelevant evidence is inadmissible.
Tenn. R. Evid. 402. If the evidence 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,” it is relevant. Tenn. R. Evid. 401. Once it determines that
a photograph is relevant, the trial court must then determine whether the probative value of
the photograph is substantially outweighed by the danger of unfair prejudice. See Tenn. R.
Evid. 403; Banks, 564 S.W.2d at 950-51. “Unfair prejudice” is “‘[a]n undue tendency to
suggest decision on an improper basis, commonly, though not necessarily, an emotional
one.’” Banks, 564 S.W.2d at 951 (quoting Tenn. R. Evid. 403, Adv. Comm. Note).

       A trial court should consider: the accuracy and clarity of the picture and its
       value as evidence; whether the picture depicts the body as it was found; the
       adequacy of testimonial evidence in relating the facts to the jury; and the need

                                              -10-
       for the evidence to establish a prima facie case of guilt or to rebut the
       defendant’s contentions.

State v. Leach, 148 S.W.3d 42, 63 (Tenn. 2004) (citing Banks, 564 S.W.2d at 951).

       The decision whether to admit the photographs rests within the trial court’s sound
discretion, and we will not reverse the trial court’s determination absent a clear showing of
an abuse of that discretion. Banks, 564 S.W.2d at 949; see also State v. Dubose, 953 S.W.2d
649, 653 (Tenn. 1997); State v. Stinnet, 958 S.W.2d 329, 331 (Tenn. 1997). Tennessee
courts follow a policy of liberality in the admission of photographs in both civil and criminal
cases. See Banks, 564 S.W.2d at 949.

        Photographs of a corpse must never be used “solely to inflame the jury and prejudice
them against the defendant” and must be relevant to prove some material aspect of the case.
Id. at 951. “[P]hotographs are not necessarily rendered inadmissible because they are
cumulative of other evidence or because descriptive words could be used.” Leach, 148
S.W.3d at 63 (citing Collins v. State, 506 S.W.2d 179, 185 (Tenn. Crim. App. 1973)). “The
traditional rule is said to be that photographs of the corpse are admissible in murder
prosecutions if they are relevant to the issues on trial, notwithstanding their gruesome and
horrifying character.” Banks, 564 S.W.2d at 950-51.

        In this case, appellant objected to the admission of the photographs showing the
victim’s body, a close-up of the victim’s pocketknife, and blood spatters. The trial court
found that the photographs of the victim’s body were not gruesome because there was not
an excessive amount of blood and the victim’s wound was covered. The trial court further
found that the photographs were “probative to show what the body was like at the residence”
and that they were not “unduly prejudicial.” The trial court found that the photograph of the
pocketknife was probative to show its location, even with appellant’s stipulation as to the
location of the pocketknife, and that the photographs of the blood spatters were corroborative
evidence. The trial court found no prejudicial value in those photographs. Having reviewed
the photographs and the witnesses’ testimony, we conclude that the trial court did not abuse
its discretion in admitting the photographs. None of the photographs are particularly
gruesome, and all are illustrative of the witnesses’ testimony. In addition, “the admissibility
of photographic evidence does not depend upon the defendant’s offer to stipulate to the facts
depicted therein.” State v. Carruthers, 35 S.W.3d 516, 577 (Tenn. 2000). Therefore,
appellant is not entitled to relief on this issue.




                                             -11-
                                         2. 9-1-1 Recording

       Appellant contends that the trial court erred by admitting the recording of Sarah Gill’s
9-1-1 call, arguing that the danger of unfair prejudice substantially outweighed the prejudicial
value.2 The trial court ruled that the recording had “probative value as to what was going on
at the scene at the time” and was “not unduly prejudicial.” The 9-1-1 call in question
occurred within seconds of the victim’s shooting. Ms. Gill is heard telling the operator that
a noise had awakened her and her boyfriend and that her boyfriend had left the bed to find
out what happened. She told the operator that someone shot her boyfriend in the face and
ran away. The victim was still alive when Ms. Gill called 9-1-1. Toward the end of the
recording, Samuel Eldridge can be heard speaking to Ms. Gill, the 9-1-1 operator, and the
police, who arrived moments after he did. We conclude that the trial court did not abuse its
discretion in admitting the recording because the recording is highly probative of what
actually happened at the crime scene based on its temporal proximity to the shooting.

                                         3. Gang Affiliation

        For the first time on appeal, appellant argues that under Tennessee Rule of Evidence
404(b), the trial court erred by failing to redact references to gang affiliation from appellant’s
second statement to police because such references amounted to inadmissible character
evidence. At trial, appellant objected to the admission of his second statement under
Tennessee Rule of Evidence 403. The trial court specifically told appellant’s counsel that
he was entitled to a hearing under Rule 404(b), but counsel maintained that he was objecting
under Rule 403. Tennessee Rule of Appellate Procedure 36(b) states, “Nothing in this rule
shall be construed as requiring relief be granted to a party responsible for an error or who
failed to take whatever action was reasonably available to prevent or nullify the harmful
effect of an error.” Therefore, appellant has waived his argument that the trial court
impermissibly admitted appellant’s statement under Rule 404(b). Furthermore, we conclude
that the statement was properly admitted under Rule 403 because the appellant’s references
to his gang affiliation, specifically that he had disassociated himself from his gang, were
highly probative of his rationale for recanting his confession and because appellant has not
shown that the probative value of the statement was substantially outweighed by the danger
of unfair prejudice.




        2
         Petitioner does not contest the admission of the recording as an excited utterance under Tennessee
Rule of Evidence 803(2).

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                                 C. Demonstrative Evidence

      Appellant argues that the trial court abused its discretion by allowing TBI Agent
Steven Scott to use a shotgun obtained from the TBI’s collection and modified by him in a
demonstration of how a shotgun is broken and loaded and how a sawed-off shotgun might
be concealed in a backpack.

        At trial, the trial court accepted Agent Scott as a firearms expert. He demonstrated
to the court how a sawed-off shotgun is used and concealed. He testified that the shotgun
came from the TBI collection, and he modified it based on a transcript of appellant’s
statement. In his statement, appellant agreed with the detective conducting the interview that
the shotgun he used was sixteen to eighteen inches in length, and he described how the
shotgun opened. He further described it as having one barrel. The trial court found that the
shotgun would assist the trier of fact in understanding Agent Scott’s testimony. The trial
court further found that it was relevant to the elements of intent and premeditation and to
show how a weapon could be concealed in a backpack. The trial court admitted the shotgun
for demonstrative purposes only and instructed the jury that the shotgun was not used in the
shooting and was to be used only for demonstrative purposes. “The admission of
demonstrative evidence is within the sound discretion of the trial court.” State v. Douglas
Marshall Mathis, M2002-02291-CCA-R3-CD, 2004 WL 392710, at *10 (Tenn. Crim. App.
Mar. 3, 2004) (citations omitted). In our view, the trial court did not abuse its discretion by
admitting the shotgun for demonstrative purposes. Furthermore, the trial court’s instructions
to the jury rendered any error harmless, as jurors are presumed to follow the trial court’s
instructions. Id. (citing Tenn. R. App. P. 36(b); State v. Smith, 893 S.W.2d 908, 914 (Tenn.
1994); State v. Woods, 806 S.W.2d 205, 211 (Tenn. Crim. App. 1990)).

                                      CONCLUSION

       Based on our review of the record, the parties’ briefs, and the applicable law, we
affirm the judgments of the trial court.


                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




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