         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs November 18, 2003

                       STATE OF TENNESSEE v. GLEN HOLT

                 Direct Appeal from the Criminal Court for Morgan County
                           No. 8773A E. Eugene Eblen, Judge



                                 No. E2003-01100-CCA-R3-CD
                                       January 14, 2004

A Morgan County jury found the Defendant, Glen Holt, guilty of first degree felony murder and
aggravated robbery. The trial court sentenced the Defendant to nine years in prison for the
aggravated robbery charge, to be served concurrently with a life sentence for the murder conviction.
The Defendant appeals, contending: (1) that the evidence was insufficient to support his convictions;
(2) that the trial court erred when it allowed a photograph, offered by the prosecution, to be admitted
into evidence without a proper foundation; (3) that the jury did not follow the trial court’s
instructions with regard to felony murder; and (4) that he did not knowingly, voluntarily and
intelligently waive his constitutional right to testify in his own defense. Although we conclude that
issues (1), (2) and (3) are without merit, the record is insufficient for us to determine whether the
Defendant personally and knowingly waived his right to testify. Therefore, we remand the case to
the trial court for a hearing to determine whether the Defendant’s right to testify was violated, and
if so, whether the violation of the Defendant’s right to testify was harmless beyond a reasonable
doubt.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JERRY L. SMITH, J., joined.
JOSEPH M. TIPTON filed a concurring and dissenting opinion.

William Allen, Oak Ridge, Tennessee, for the appellant, Glen Holt.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; John H.
Bledsoe, Assistant Attorney General; Scott McCluen, District Attorney General; Roger Delp and
Frank Harvey, Assistant District Attorney Generals, for the appellee, State of Tennessee.

                                             OPINION
                                              I. Facts

       The Defendant, Glen Holt, was indicted for, and found guilty of, felony murder and
aggravated robbery. The indictment alleged that the Defendant, Vanessa Baston, Jamie Miller and
Darryl Dixon killed the victim, Charles Parley McCann, on November 19, 2000, during the
perpetration of an aggravated robbery. The Defendant’s case was severed from the other three co-
defendants, and the case was tried by a jury. The following evidence was presented at the
Defendant’s jury trial.

        John Waschevski, an officer with the Morgan County Sheriff’s Department, testified that he
was on duty on November 19, 2000, when he was called to a residence at 952 Meister Hills Road
to investigate a possible death. Officer Waschevski testified that when he arrived at the residence,
he saw the victim lying on his back with his head toward the door and his feet underneath the bed.
The officer testified that the victim was cold to the touch and that the Emergency Medical Service
moved the victim to the ambulance. Officer Waschevski testified that he then noticed a gun lying
near the foot of the bed, checked the victim again, and noticed marks on his neck where it “looked
like he’d been strangled.” Officer Waschevski stated that the officers at the scene called the Morgan
County Sheriff and the Tennessee Bureau of Investigation (“TBI”) to assist in the investigation.

       The autopsy report of the victim, performed by Sandra Elkins, M.D., was admitted into
evidence. The report stated that “[d]eath was the result of strangulation. At autopsy, there were also
numerous acute rib fractures on the right side.”

        Jason Legg, an agent with the TBI, testified that he was initially called by the Morgan County
Sheriff to the victim’s home “under the suspicious circumstances surrounding the death.” Agent
Legg testified that, upon arriving at the murder scene, he examined the victim’s body, which was in
the ambulance, and that he then went into the house to investigate. The agent stated that, as part of
the investigation, he came into contact with the Defendant and talked with him about the victim’s
death. Agent Legg testified that, at first, the Defendant denied any knowledge of the victim’s death
and denied any involvement, stating that he and his girlfriend, Jamie Miller, were at the home of his
mother and her boyfriend on the night in question. The agent testified that the following day he
called the Defendant and asked him to come to the Sheriff’s Department to be interviewed, and the
Defendant complied.

       Agent Legg stated that during the interview the Defendant was not in custody and gave a
sworn statement. The agent stated that he did not advise the Defendant of his constitutional rights.
Agent Legg read the sworn statement, which included an affidavit of accuracy signed by the
Defendant, into evidence stating:

       On Sunday the 19th day of November 2000 myself, my girlfriend, Jamie Miller, my
       mom Vanessa Baston and her boyfriend Darryl Dixon, left Alpine and drove to
       Jamestown. We stopped at the B.P. station and got gas. I drove us to Meister Hills
       Road in Morgan County. I drove past the trailer of [the victim] and pulled off the
       road. My mom and I climbed in the bed of the truck, and Darryl drove us to the
       driveway of [the victim]. My mom and I got out and Darryl and Jamie drove down
       the road to wait on us. I told them to pick us up at 2:20 a.m. CST. My mom and I
       went to the front door of [the victim’s] trailer. I stood to the left of the door while


                                                 -2-
       mom knocked. [The victim] turned on the porch light and opened the door. Mom
       told him she had a flat tire and needed to use his phone. [The victim] let my mom in
       to use the phone. I came up behind [the victim] and got him in a bear hug. My mom
       was on the phone and had dialed some number. I laid [the victim] down on the floor.
       [The victim] had got one leg underneath his bed and one on the outside. A leg of the
       bed was between his legs. [The victim’s] head was lying next to his front door.
       When I laid [the victim] down my mom grabbed him by putting a knee on his chest
       and hands, and grabbing his throat with one hand and covering his mouth with her
       other hand. I went to the back bedroom and went through the closet that had a
       uniform . . . in it. I looked under the beds and went to the kitchen. I searched the
       cabinets, refrigerator, and cupboard. I searched stuff lying on a table and went to the
       living room. Mom was in the living room when I came from the back bedroom, but
       [the victim] started moving and she went back and grabbed his throat and covered his
       mouth with her hands. I saw a toilet seat in the living room and papers sticking out
       of the drawer. I went to the front bedroom and found a tin cookie/cake pan with old
       money, watches, and knives in it. I searched a drawer, but mom took the tin pan. My
       mom told me to go and she had everything tucked against her chest. I closed the
       front door behind us. And [the victim] wasn’t moving. While in [the victim’s]
       trailer I fell into a small hole in the floor near the back door. The carpet was the only
       thing covering the hole.

       My mom and I ran down Meister Hills Road towards Glades Store. We stopped at
       Steve Hull’s driveway. My mom hid in the woods and I got in the ditch. While we
       were there my mom took some pills and swallowed them with a couple of handfuls
       of water from a mud puddle. I saw the truck coming and I waved a flashlight to get
       them to stop. I got in the driver’s seat and drove. I turned around in Steve Hull’s
       driveway, and started toward Alpine. I threw my gloves I was wearing out the
       window, and so did my mom. My mom also threw out a pill bottle taken from [the
       victim’s trailer]. I drove us to Alpine to my mom and Darryl’s trailer. My mom took
       everything taken from [the victim’s] trailer into her trailer. If my mom got money
       out of the trailer at [the victim’s] she would use it for drugs and bills. She was
       behind on her truck payment and court fines. After Agent Legg and Investigator
       Richard Ross came and talked to me and Jamie, I told my mom. My mom then
       burned the tin pan and other things taken from [the victim’s] in a refrigerator in her
       front yard.

       The only thing [the victim] said after I grabbed him was, [“]I can’t take this.[”]
       Before my mom grabbed him she wiped off the phone handle to remove her prints.
       She later commented that she hoped she did not leave any prints on the phone.

This statement was admitted into evidence without objection by the Defendant.

       Agent Legg testified that after the Defendant made this statement he took the officers, along


                                                 -3-
with Jamie Miller, to recover the gloves that had been thrown out of the truck. The agent stated that,
while the Defendant first denied that he had the gun taken from the victim’s trailer, he later produced
the gun.

       On cross-examination, the agent stated that there was no evidence that either the Defendant
or Vanessa Baston had a gun with them at the time of the robbery. Agent Legg stated that the
Defendant cooperated with police by giving his statement. Agent Legg testified that, a few days after
the Defendant gave his statement, he called the agent and told him that Vanessa Baston was calling
and threatening him. The agent stated that everything from his investigation was consistent with
what the Defendant told him.

         The Defendant offered no additional evidence, and, after deliberating, the jury found the
Defendant guilty of first degree murder and aggravated robbery. The trial court sentenced the
Defendant to nine years in prison for the aggravated robbery charge, to be served concurrently with
his life sentence for the first degree murder conviction.

                                             II. Analysis

        On appeal, the Defendant contends: (1) that the evidence was insufficient to support his
convictions; (2) that the trial court erred when it allowed a photograph, offered by the prosecution,
to be admitted into evidence without a proper foundation; (3) that the jury did not follow the trial
court’s instructions with regard to felony murder; and (4) that he did not knowingly, voluntarily and
intelligently waive his constitutional right to testify in his own defense.

                                  A. Sufficiency of the Evidence

         The Defendant contends that there was insufficient evidence presented at trial to support his
conviction for felony murder or aggravated robbery. When an accused challenges the sufficiency
of the evidence, an appellate court’s standard of review is whether, after considering the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443
U.S. 307, 324 (1979); State v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000). This rule applies to
findings of guilt based upon direct evidence, circumstantial evidence, or a combination of both direct
and circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

         In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate
the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990). Nor may this Court substitute its inferences for those drawn by
the trier of fact from the evidence. Buggs, 995 S.W.2d at 105; Liakas v. State, 286 S.W.2d 856, 859
(Tenn. 1956). Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact. Liakas,
286 S.W.2d at 859. This Court must afford the State of Tennessee the strongest legitimate view of
the evidence contained in the record, as well as all reasonable inferences which may be drawn from


                                                  -4-
the evidence. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of guilt against
a defendant removes the presumption of innocence and raises a presumption of guilt, the convicted
criminal defendant bears the burden of showing that the evidence was legally insufficient to sustain
a guilty verdict. Id.

        The Defendant makes three arguments when contending that the evidence is insufficient to
support his convictions. First, he argues that the State presented no evidence to corroborate his
statement, and his convictions cannot be founded solely on his confession, but must be supported
by corroborating evidence. Second, the Defendant argues that the State presented no evidence to
establish that a robbery of the victim occurred or to establish that he had the requisite intent to
commit a robbery. Third, he contends that the State failed to prove the identity of the body.

                                  1. Corroboration of Confession

         With regard to the Defendant’s first contention, namely that his conviction cannot rest solely
on his confession, we agree that it is a well-established principle of law in this state that a conviction
cannot be founded solely upon a defendant’s confession, and that, in order to establish the “corpus
delicti,” there must be some corroborating evidence. State v. Smith, 24 S.W.3d 274, 281 (Tenn.
2000) (citing Ashby v. State, 124 Tenn. 684, 139 S.W. 872, 875 (1911)). Literally, corpus delicti
means the body of the crime. Two elements, which must be proven by the State beyond a reasonable
doubt, make up the corpus delicti: “(1) That a certain result has been produced, and (2) That the
result was created through criminal agency.” State v. Ervin, 731 S.W.2d 70, 71-72 (Tenn. Crim.
App. 1986). In a homicide case, the two elements of the corpus delicti are specifically stated as: (1)
the death of a human being, and (2) criminal agency in producing that death. State v. Shepherd, 902
S.W.2d 895, 901 (Tenn. 1995). In other words, the State must show that the death was committed
through the criminal acts of the accused. See Kyle v. State, 208 Tenn. 170, 344 S.W.2d 537, 538
(1961). Whether the State has sufficiently established the corpus delicti is primarily a jury question.
State v. Jones, 15 S.W.3d 880, 891 (Tenn. Crim. App. 1999).

        While the corpus delicti cannot be established solely by the defendant’s statements, any other
statements may be considered along with any other evidence, both direct and circumstantial to prove
the corpus delicti. Shepherd, 902 S.W.2d at 901. Where there is a confession, the corroborative
evidence “need not be as convincing as the evidence necessary to establish a corpus delicti in
absence of any confession.” Ricketts v. State, 192 Tenn. 649, 654-55, 241 S.W.2d 604, 606 (1951).
The “‘evidence is sufficient if . . . it tends to connect the defendant with the commission of the
offense, although the evidence is slight, and entitled, when standing by itself, to but little
consideration.’” Smith, 24 S.W.3d at 281 (quoting Ricketts, 241 S.W.2d at 606). The corpus delicti
may be proven by circumstantial evidence, and only slight evidence of the corpus delicti is required
to corroborate a confession and to sustain a conviction. State v. Ellis, 89 S.W.3d 584, 600 (Tenn.
Crim. App. 2000); State v. Jones, 15 S.W.3d 880, 891 (Tenn. Crim. App. 1999). “A confession may
sustain a conviction where there is other evidence sufficient to show the commission of the crime
by someone.” Taylor v. State, 479 S.W.2d 659, 661-62 (Tenn. Crim. App. 1972).



                                                   -5-
        In the case presently before us, the Defendant’s confession was corroborated by numerous
means. First, the crime scene was exactly as the Defendant described in his confession. The position
of the victim’s body was as the Defendant described, including such details as the position of the
victim’s legs around the bed and the location of the victim’s head. The items taken from the victim’s
house matched the items that the Defendant confessed were taken. Further, the gloves that the
Defendant confessed that he wore and subsequently threw by the side of the road were located. The
Defendant confessed that his mother strangled the victim and the autopsy report, which was admitted
into evidence, showed that the cause of the victim’s death was strangulation. The corroborative
evidence necessary to support the corpus delicti need only support “the essential facts . . . to justify
a jury inference of their truth.” Opper v. United States, 348 U.S. 84, 93 (1954). The State has
satisfied this standard.

                                      2. Robbery Conviction

        The Defendant next argues that the State presented no evidence to establish that an
aggravated robbery of the victim occurred and no evidence to establish that he had the requisite
mental state to commit a robbery. Our statute defines first degree murder, in part, as “[a] killing of
another committed in the perpetration of or attempt to perpetrate any . . . robbery . . . .” Tenn. Code.
Ann. § 39-13-202(a)(2). The code further states that “[n]o culpable mental state is required . . .
except the intent to commit the enumerated offenses or acts . . . .” Tenn. Code Ann. § 39-13-202(b).
Additionally, the death must occur “in the perpetration of” the enumerated felony. State v. Madden,
99 S.W.3d 127, 135 (Tenn. Crim. App. 2002) (citing State v. Hinton, 42 S.W.3d 113, 119 (Tenn.
Crim. App. 2000)).

        The Tennessee Supreme Court has stated that “in order for the felony-murder doctrine to be
invoked, the actor must intend to commit the underlying felony at the time the killing occurs” and
that “there is no felony-murder where the felony occurs as an afterthought following the killing.”
Buggs, 995 S.W.2d at 107. The law does not require that the felony necessarily precede the murder
in order to support a felony-murder conviction. Id. at 106. The killing may precede, coincide with,
or follow the felony, so long as there is a connection in time place, and continuity of action. Id.; see
State v. Pierce, 23 S.W.3d 289, 294-97 (Tenn. 2000). Proof of the intention to commit the
underlying felony and at what point it existed are questions of fact to be decided by the jury after
consideration of all the facts and circumstances. Madden, 99 S.W.3d at 135; see Hall v. State, 490
S.W.2d 495, 496 (Tenn. 1973); State v. Holland, 860 S.W.2d 53, 59 (Tenn. Crim. App. 1993). A
jury may reasonably infer from a defendant’s actions immediately after a killing that the defendant
had the intent to commit the felony prior to, or concurrent with, the killing. Buggs, 995 S.W.2d at
108.

        The Defendant contends that the evidence was insufficient to sustain the conviction for
felony murder because there was no proof that a robbery occurred and because there was no proof
that he had the requisite intent to commit that robbery.

        Aggravated robbery is defined as “the intentional or knowing theft of property from the


                                                  -6-
person of another by violence or putting the person in fear,” Tennessee Code Annotated section 39-
13-401(a) (2003), “[w]here the victim suffers serious bodily injury.” Tenn. Code Ann. § 39-13-
402(a)(2) (2003). “A person commits theft of property if, with intent to deprive the owner of
property, the person knowingly obtains or exercises control over the property without the owner’s
effective consent.” Tenn. Code Ann. § 39-14-103 (2003). “Deprive” means to “[w]ithold property
from the owner permanently or for such a period of time as to substantially diminish the value or
enjoyment of the property to the owner.” Tenn. Code Ann. § 39-11-106(a)(8)(A). “Serious bodily
injury” includes “[a] substantial risk of death.” Tenn. Code Ann. § 39-11-106(a)(34)(A).

        The evidence, viewed in a light most favorable to the State, established that the Defendant
and his mother went to the victim’s home under the pretense of needing to use the phone. The
Defendant grabbed the victim and forced him to the ground, and the victim said, “I can’t take this.”
The Defendant’s mother assisted in, and then took over, restraining the victim, and then the
Defendant saw his mother strangling the victim. While this was occurring, the Defendant looked
for items to steal from the house. The Defendant used gloves during the commission of this offense,
and he disposed of these gloves after the offense by throwing them out the window of his the truck.
The gloves were later located by police. After first denying that he took a gun from the victim’s
home, the Defendant returned the gun taken from the victim’s home to Agent Legg. This evidence
is sufficient to show that the Defendant committed aggravated robbery, and that the Defendant
participated in the felony murder of the victim during the perpetration of the robbery.

                                      3. Identity of the Body

        The Defendant next asserts that the State did not meet its burden regarding the identification
of the victim’s body. Identity of the body is an essential element of the corpus delicti. See Berry
v. State, 523 S.W.2d 371, 374 (Tenn. Crim. App. 1974); see also Bolden v. State, 140 Tenn. 118,
203 S.W. 755 (1918). While it is true that, to sustain the Defendant’s conviction, the State must
have proven that the Defendant murdered the individual named in the indictment, identification may
be proven by circumstantial evidence. Berry, 523 S.W.2d at 374; State v. Pipkin, No. M1999-00870-
CCA-OT-PC, 2001 WL 1398133, at *3 (Tenn. Crim. App., at Nashville, Nov. 9, 2001) no perm. to
appeal filed.

        The evidence, viewed in the light most favorable to the State, showed that the victim’s body
was identified as that of Charles McCann. The Defendant and his mother went to “the trailer of
Charles McCann” which was located on “Meister Hills Road” and the Defendant “came up behind
McCann and got him in a bear hug [and then] . . . laid McCann down on the floor.” After “McCann
started moving, [the Defendant’s mother] went back and grabbed his throat and covered his mouth
with her hands” while the Defendant searched the house for items to steal. Officer Waschevski was
called to 952 Meister Hills Road to investigate a death, and when he arrived “there lay Mr. McCann,
with his head facing to the door on his back.” The body of Mr. McCann was taken by ambulance
to the coroner’s officer for an autopsy. The officer identified a picture of Mr. McCann that was
taken after his death. The autopsy report listed Mr. McCann as the victim. This evidence is
sufficient to establish the identity of the body. We are not only satisfied with the sufficiency of the


                                                 -7-
evidence establishing the identify of the body, but we also find support for this holding by the fact
that the cause of death is circumstantially shown by the confession as strangulation, and the other
evidence, including the photograph and autopsy report, is consistent with the strangulation death
described in the confession.


                                   B. Photograph of the Victim

        The Defendant contends that the trial court erred when it allowed the State to admit into
evidence a photograph of the victim without laying the proper foundation of “where or when the
picture was taken” and because when the photograph was introduced “there was no testimony or
other evidence identifying the body that was found by the deputy.” In Tennessee, admissibility of
evidence is within the sound discretion of the trial judge. State v. Saylor, 117 S.W.3d 239, 247
(Tenn. 2003). The admission of photographs is generally at the discretion of the trial court and,
absent an abuse of that discretion, will not result in the grant of a new trial. State v. Dickerson, 885
S.W.2d 90, 92 (Tenn. Crim. App. 1993).

        A photograph is admissible if it is relevant to an issue in dispute and if its probative value
is not outweighed by its prejudicial effect. Tenn. R. Evid. 403. The determination of whether
proffered evidence is relevant in accordance with Tennessee Rule of Evidence 402 is left to the
sound discretion of the trial judge, as is the determination of whether the probative value of evidence
is substantially outweighed by the possibility of prejudice pursuant to Tennessee Rule of Evidence
403. State v. Kennedy, 7 S.W.3d 58, 68 (Tenn. Crim. App. 1999) (citing State v. Forbes, 918
S.W.2d 431, 449 (Tenn. Crim. App. 1995)); State v. Burlison, 868 S.W.2d 713, 720-21 (Tenn. Crim.
App. 1993). In making these decisions, the trial court must consider the questions of fact that the
jury will have to consider in determining the accused’s guilt, as well as other evidence that has been
introduced during the course of the trial. State v. Williamson, 919 S.W.2d 69, 78 (Tenn. Crim. App.
1995). We will only disturb an evidentiary ruling on appeal when it appears that the trial judge
arbitrarily exercised his discretion. State v. Baker, 785 S.W.2d 132, 134 (Tenn. Crim. App. 1989).

        Initial questions of admissibility of evidence are governed by Tennessee Rules of Evidence
401 and 403. These rules require that the trial court must first determine whether the proffered
evidence is relevant. Pursuant to Rule 401, evidence is deemed 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 than it would be without the evidence.” See Forbes, 918 S.W.2d at 449. In other words,
“evidence is relevant if it helps the trier of fact resolve an issue of fact.” Neil P. Cohen, et al.,
Tennessee Law of Evidence § 4.01[4], at 4-8 (4th ed. 2000). After the trial court finds that the
proffered evidence is relevant, it then weighs the probative value of that evidence against the risk
that the evidence will unfairly prejudice the trial. State v. James, 81 S.W.3d 751, 757 (Tenn. 2002).
If the court finds that the probative value is substantially outweighed by its prejudicial effect, the
evidence may be excluded. Tenn. R. Evid. 403. “‘Excluding relevant evidence under this rule is an
extraordinary remedy that should be used sparingly and persons seeking to exclude otherwise
admissible and relevant evidence have a significant burden of persuasion.’” James, 81 S.W.3d at


                                                  -8-
757-58 (quoting White v. Vanderbilt Univ., 21 S.W.3d 215, 227 (Tenn. Ct. App. 1999)).

        To be admissible, a photograph must be relevant to some issue at trial and the danger of
unfair prejudice, confusion of the issues, or misleading the jury must not substantially outweigh its
probative value. Tenn. R. Evid. 403; State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978); State v.
Gallaher, No. E2001-01876-CCA-R3-CD, 2003 WL 21463017, at *2 (Tenn. Crim. App., at
Knoxville, June 25, 2003). Before any photograph can be admitted into evidence it must be verified
and authenticated by a witness with knowledge of the facts. Banks, 564 S.W.2d at 949-50. In
Banks, the supreme court gave the trial courts guidance for determining the admissibility of relevant
photographic evidence. 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 for the evidence to establish a prima facie case
of guilt or to rebut the defendant’s contentions. Id.

         In the case under submission, the photograph is clear and has significant evidentiary value.
The State called Officer Waschevski, who was the officer first called to the scene of the crime, to
testify about the crime scene. The officer testified that, when he arrived at the scene of the crime,
he found the victim, whom he identified as Mr. McCann, lying on the floor of the trailer. After so
testifying, the prosecutor showed the officer a photograph of the victim. The following dialog
occurred:

        State: Let me show you what will be marked as State’s Exhibit One . . . . If you
        would look at this and see if you can tell us if this is a fair and accurate representation
        of the individual that you saw there at that time?
        Officer Waschevski: Yes, it is.
        State: Your Honor, we would seek to move this in as State’s Exhibit Number One
        and ask to pass it to the jury at this time.
        Defense: Your Honor, I don’t think there’s been a proper foundation to send it to the
        jury at this point. We don’t know where the picture was taken, or when it was taken,
        or anything like that.
        State: Your Honor, he doesn’t have to be the person that takes it. That’s a fair and
        accurate representation of the individual.
        Court: Overrule the objection. Pass it to the jury.

        We hold that the trial court did not abuse its discretion when it admitted the photograph. A
proper foundation was laid in that the officer testified that the photograph was a fair and accurate
representation of the victim. The photograph was probative in multiple ways: to show that the victim
had red markings on his neck indicative of strangulation; to show the age of the victim depicting the
ease with which he could be overpowered; and to corroborate the officer’s testimony that he found
the victim lying on his back on the floor. This probative value was not outweighed by any prejudice
to the Defendant. The picture was not particularly gruesome, nor was it cumulative evidence.
Therefore, we find that this issue raised by the Defendant is without merit.



                                                   -9-
                                    C. Trial Court’s Instructions

       The Defendant contends that the jury did not follow the trial court’s instructions.
Specifically, he asserts that the trial court did not instruct the jury on criminal responsibility for
conduct of another and only instructed the jury on criminal responsibility for facilitation of a felony.
He states that if the jury found that he did not actually strangle the victim it would have to find the
Defendant criminally responsible for the actions of his mother to properly convict him of felony
murder. The Defendant asserts that because the jury was not instructed on this offense, it could not
have properly convicted him of felony murder.

        Contrary to the Defendant’s assertion in his brief that “the only instruction related to criminal
responsibility given by the trial court related to facilitation of a felony,” the record indicates that the
trial court instructed the jury on criminal responsibility for conduct of another. The trial court
instructed the jury that:

        The defendant is criminally responsible for an offense committed by the conduct of
        another if acting with the intent to promote or assist the commission of the offense,
        or to benefit in the proceeds or results of the offense the defendant solicits, directs,
        aids, or attempts to aid another person to commit the offense.

               A defendant who is criminally responsible for an offense may be found guilty
        not only of that offense but also for any other offense or offenses committed by
        another. If you find beyond a reasonable doubt that the other offense or offenses
        committed were natural and probable consequences of the original offense for which
        the defendant is found criminally responsible, and that the elements of the offense
        have been proven beyond a reasonable doubt.

        We find that this is an accurate statement of the law and that the trial court did not err in
instructing the jury and the jury is presumed to have followed those instructions.

                                  D. Defendant’s Right to Testify

        The Defendant asserts that he did not knowingly, voluntarily and intelligently waive his
constitutional right to testify in his own defense. At trial, the Defendant’s counsel requested a “a
minute, please” from the judge, who subsequently ordered the jury to leave open court. Thereafter,
the Defendant’s counsel stated:

        Your Honor, Mr. Holt has decided not to take the stand, so we won’t be putting on
        his testimony. I just wanted to make you aware of that. Whether you want to inquire
        of him as to his -- I’ve advised him of his rights to testify and not to testify, and I
        think he understands those. I didn’t know whether you -

The court then asked the Defendant: “Do you understand your rights, and you’re not going to take


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the stand and testify?” and the record states that “Defendant indicates affirmatively.” When ruling
on this issue in the order on the Defendant’s motion for new trial, the trial court stated:

        Regarding [the issue] . . . that [the] defendant [did] not properly waive his right to
        testify, the Court finds that the harmless error analysis is the appropriate investigation
        on this issue. The State had introduced a six page sworn confession made by [the]
        defendant to T.B.I. Special Agent Jason Legg which purported to catalogue this
        defendant’s involvement, along with his mother, in the murder and robbery of
        Charles McCann. He made the first assault on Mr. McCann after his mother
        convinced the victim to allowed her into his home at about 2:00 A.M. to use his
        phone to summon help due to her vehicle having a flat tire. The decision not to
        testify was an intelligent decision. Cross examination would have only added more
        details to an otherwise terrible event. It is the Court’s opinion that testifying in his
        own behalf under the circumstances would not have changed the verdict of the jury.

         It is unquestionable that a criminal defendant has a fundamental, constitutional right to testify
at trial. Momon v. State, 18 S.W.3d 152, 157 (Tenn. 1999). This fundamental right may only be
waived personally by the defendant. Id. at 161. “Generally, a right that is fundamental and personal
to the defendant may only be waived if there is evidence in the record demonstrating ‘an intentional
relinquishment or abandonment of a known right or privilege.’” Id. at 161-62. A waiver of this right
may not be presumed by a silent record. Id. at 162. To ensure that the defendant’s right to testify
has been personally waived by the defendant, the court in Momon adopted procedural guidelines that
call for defense counsel to request a hearing outside the presence of the jury to demonstrate that the
defendant’s waiver of the right to testify has been knowingly, intelligently, and voluntarily made.
See id. at 163; State v. Posey, 99 S.W.3d 141, 148-49 (Tenn. Crim. App. 2002). There is no
evidence in the record that the procedural guidelines established by Momon were followed.
Furthermore, there is no evidence, other than the Defendant “indicat[ing] affirmatively,” to “establish
that the right was otherwise personally waived by the defendant.” Momon, 18 S.W.3d at 163.
Therefore, we remand this case for the trial court to determine whether the Defendant personally
waived his right to testify and whether, if he had wished to testify, the denial of the right was
harmless beyond a reasonable doubt.

        In determining whether the State proved that the constitutional violation is harmless beyond
a reasonable doubt, courts should consider the following factors: (1) the importance of the
defendant’s testimony to the defense’s case; (2) the cumulative nature of the testimony; (3) the
presence or absence of evidence corroborating or contradicting the defendant on material points; and
(4) the overall strength of the prosecution’s case. See id. at 167. The above factors “are merely
instructive and not exclusive considerations.” Id. at 168.

        As was the case in Momon and Posey, there is not sufficient evidence in the record for this
Court to give full consideration to these factors. We have no indication of what the substance of the
Defendant’s testimony would have been had he testified. Finding this to be the case, we conclude
that the case must be remanded to the trial court for the determination of whether the Defendant did,


                                                  -11-
in fact, knowingly waive his right to testify on his own behalf. If he did not, then a hearing must be
held at which the State will bear the burden of establishing that the denial of the Defendant’s right
to testify on his own behalf was harmless beyond a reasonable doubt. If the trial court concludes that
the State meets its burden, the Defendant’s conviction will be sustained. However, if the State fails
to prove that the error was harmless beyond a reasonable doubt, the trial court must vacate the
Defendant’s convictions and grant the Defendant a new trial.

                                          III. Conclusion

                We therefore REMAND this case to the trial court for proceedings consistent with
this opinion.



                                                       ___________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE




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