        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT NASHVILLE            FILED
                     JANUARY SESSION, 1998          April 20, 1999

                                               Cecil W. Crowson
STATE OF TENNESSEE,       )                  Appellate Court Clerk
                              C.C.A. NO. 01C01-9702-CR-00068
                          )
      Appellee,           )
                          )
                          )   DAVIDSON COUNTY
VS.                       )
                          )   HON. THOMAS H. SHRIVER
SHAWN D. LESLEY,          )   JUDGE
                          )
      Appe llant.         )   (Direct Appeal - Second Degree
                          )   Murder)




FOR THE APPELLANT:            FOR THE APPELLEE:

F. MICHIE GIBSON, JR.         JOHN KNOX WALKUP
1416 Pa rkway Tow ers         Attorney General and Reporter
404 James Robertson Parkway
Nashville, TN 37219           LISA A. NAYLOR
                              Assistant Attorney General
                              425 Fifth Avenu e North
                              Nashville, TN 37243-0493

                              VICTOR S. JOHNSON
                              District Attorney General

                              JOHN ZIMMERMANN
                              Assistant District Attorney
                              222 2nd Avenue, No.
                              Nashville, TN 37201




OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION


       On November 15, 1995, a Davidson County jury convicted Appellant

Shawn D. Lesley of second degree murder. On February 29, 1996, the trial

court sen tenced Appella nt as a R ange I sta ndard o ffender to a term o f twenty

years. Appellant filed a motion for a new trial on March 28, 1996, and an

amended motion for a new trial on September 6, 1996. The trial court denied

the m otion fo r a new trial on O ctobe r 4, 199 6. App ellant c hallen ges h is

conviction, raising the following issues:

       1) whether the trial court erred when it allowed the State to introduce
       photographs of the victim’s hands into evidence; and
       2) wheth er the trial co urt erred w hen it allow ed a witne ss for the S tate to
       testify about Appellant’s demeanor at the time that Appellant took the
       victim to the ho spital.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                      I. FACTS




       Steven Cernawsky testified that he was working as a nurse in the

emergency room of Metro General Hospital on March 23, 1993, when

Appellant entered the hospital carrying fifteen-month-old Laura Waters. When

Appellant handed him the child, Cernawsky noticed that she was not breathing

and he immediately attempted to resuscitate her. Although Cernawsky began

performing C.P.R. when he determined that Laura had no pulse, Laura did not

regain co nscious ness.




                                           -2-
      Cernawsky also testified that he observed that Laura had some bruising

on her forehead and had burns on her hands. Cernawsky then identified

some photog raphs o f Laura’s h ands a nd the p hotogra phs we re introdu ced into

eviden ce with out ob jection . The p rosec utor the n ask ed Ce rnaws ky if he c ould

describe Appella nt’s dem eanor w hen Ap pellant ha nded L aura to h im.

Appe llant’s coun sel then o bjected o n the gro und tha t Cerna wsky wa s not a

psych ologis t who w as qu alified to give an opinio n abo ut App ellant’s

demeanor. The trial court then stated that it would reserve ruling on the

objection until after it heard Cernawsky’s response.1 Cernawsky then testified

that “[Appellant] walked up to the desk. I was sitting there charting, and he

stood there with the child. I looked up and asked if I could help him. And he

just handed me . . . the child calmly. And . . . that’s when he said to me that

she had fallen and was h aving trouble brea thing.”



       Doctor Olayinka Onadeko testified that he had treated Laura in the

emerge ncy room o n March 2 3, 1993. Althou gh Doctor O nadeko a nd others

performed C.P.R. for almost twenty-five minutes, the child did not resume

breathing. When Doctor Onadeko asked Appellant about the circumstances

of Laura’s death, Appellant stated that Laura had fallen down some steps and

had stopped breathing before they got to the hospital. Doctor Onadeko then

testified that Appellant’s explanation was inconsistent with Laura’s injuries and

her death from a head injury. Doctor Onadeko also testified that Laura had

unusual second or third degree burns on her hands and he then identified the

photog raphs th at show ed the b urns.




      1
          It appears that the trial court never formally ruled on the objection.

                                                     -3-
       Doctor Julia Goodin testified by video taped deposition that she had

perform ed an a utopsy o n Laura and ha d determ ined that th e caus e of dea th

was “multiple head trauma” that was consistent with multiple blows to the head

or violen t shak ing. Do ctor G oodin also ide ntified th e pho tograp hs of L aura’s

hand s and testified that the burn in juries w ere inc onsis tent with Appe llant’s

statement to the police that Laura had pulled herself up the stairs by grabbing

the handrail because it would have been too painful for Laura to hold on to the

handra il.




       Detective Ron Carter of the Metro Police Department testified that

Appellant had given a statement in which he claimed that Laura had injured

herself when she fell down some stairs. Detective Carter subsequently video

taped a reenactment by Appellant of how Laura allegedly climbed up some

stairs by holding on to the handrail and then fell down the stairs.



       Detective E.J. Bernard of the Metro Police Department testified that

Appellant gave a subsequent statement in which he admitted that Laura had

not fallen down the stairs. Detective Bernard also testified that Appellant had

admitted that he had been angry and he had taken his anger out on Laura by

shaking her very ha rd and th rowing L aura “for a flip” four times .



       Appellant testified that Laura had been climbing up some stairs when

her hand slipped off the rail and she fell backwards. Appellant also testified

that after Laura fell, he picked her up and ran to the hospital. Appellant

testified that when he was subsequently taken to police headquarters,

Detective Carter pointed a gun at his head and told him that if he “mess[ed]

                                          -4-
up” he w as going to die. App ellant testified that at this po int, he dec ided to

make up a story about h ow he h ad bea ten Lau ra and to ssed h er in the air.



                    II. INTRODUCTION OF PHOTOGRAPHS




       Appe llant conte nds tha t the trial court e rred whe n it allowed the State to

introduce the pho tograph s of Laur a’s burne d hand s into evide nce.

Specifically, Appellant claims that the photographs were not relevant to any

issue in the case and thus, their probative value was substantially outweighed

by danger of unfair prejudice.



       Initially, we note that Appellant has waived this issue by failing to object

to the introd uction of th e photo graphs at trial. See State v. Duncan, 698

S.W .2d 63 , 67 (T enn. 1 985) (s tating th at the fa ilure of a defen dant to timely

object to the introduction of evidence is a waiver of appellate review of the

issue); Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as

requiring relief be gra nted to a p arty respo nsible for a n error or w ho failed to

take whatever action was reasonably available to prevent or nullify the harmful

effect of an error.”).



       Notwithstanding the waiver, we conclude that Appellant is not entitled

to relief on the merits. Rule 403 of the Tennessee Rules of Evidence states

that

       Althou gh rele vant, ev idenc e ma y be ex clude d if its pro bative v alue is
       substantially outweighed by the danger of unfair prejudice, confusion of
       the issues, or m isleading the jury, or by co nsiderations of un due delay,
       waste of time, or needless presentation of cumulative evidence.


                                           -5-
Ten n. R. E vid. 403 . The d eterm ination of whe ther to a dmit p hotog raphs falls

within th e sou nd dis cretion of the tria l court a nd the trial cou rt’s dec ision w ill

not be o verturned unless th ere has been a clear abu se of disc retion. State v.

Zirkle, 901 S.W .2d 874, 888 (Tenn. Crim . App. 1995 ).



       In this case, the photographs of Laura’s burned hands have obvious

relevance to the issue of whether Laura was killed by Appellant or whether

she died as the result of an accident. In both his pre-trial statements to police

and his testimony at trial, Appellant claimed that Laura had been injured when

she fell down some stairs after she walked up the stairs while holding on to the

handra il. Doctor G oodin tes tified that Ap pellant’s cla im was inconsis tent with

the burn wounds on Laura’s hands. Specifically, Doctor Goodin testified that

Laura would have experienced a lot of pain when she touched something and

thus, she would n ot have h eld on to th e hand rail to pull hers elf up the s tairs.

The photo graph s were introdu ced in order to illustrate Docto r Goo din’s

testimon y. This wa s a prop er purpo se. See State v. Stephenson, 878 S.W.2d

530, 542 (Tenn. 1994) (stating that trial court did not abuse its discretion when

it admitted a photograph of a corpse to illustrate the testimony of a police

detective). Finally, we have viewed the ph otographs a nd while they are

certainly unpleasant, they are not particularly gruesome. Thus, we conclude

that the probative value of the photographs was not substantially outweighed

by danger of unfair prejudice. Accordingly, we hold that the trial court did not

abus e its disc retion w hen it a dmitte d the p hotog raphs into evid ence . This

issue ha s no m erit.




                                             -6-
               III. TESTIMONY ABOUT APPELLANT’S DEMEANOR




        Appellant contends that the trial court erred when it allowed Cernawsky

to testify that when Ap pellant entered the emerge ncy room, A ppellant “calmly”

handed Laura to him. Specifically, Appellant claims that this was error

because Cernawsky was not an expert who was qualified to give his opinion

that Appellant was calm.



        At the time that Appellant was tried in November of 1995, Rule 701 of

the Te nness ee Ru les of Evide nce pro vided, in pe rtinent part:

        Gen erally. If th e witne ss is no t testifying as an exper t, the witn ess’s
        testimony in the form of opinions or inferences is limited to those
        opinions or inferences where:
              (1) The opinions and inferences do not require a special
              knowledge, skill, experience, or training;
              (2) The witness cannot readily and with equal accuracy and
              adequacy communicate what the witness has perceived to the
              trier of fact witho ut testifying in te rms of o pinions o r inference s;
              and
              (3) The opinions or inferenc es will not m islead the trier of fact to
              the preju dice of the objecting party.

Tenn. R . Evid. 701(a). 2 We hold that C ernaws ky’s use o f the word “calmly” to

describe Appellant’s demeanor satisfies the requirements of this rule. First, no

“special knowledge, skill, experience, or training” is required to form an

opinion that someone acted “calmly” because such an opinion is within the

range of com mon exper ience . Seco nd, we conc lude th at Ce rnaws ky cou ld




        2
        In 1996, Rule 701(a) was amended to read as follows:
       Generally. If a witness is not testifying as an expert, the witness’s testimony in the form of
       opinions or inferences is limited to those opinions or inferences which are
                (1) rationally based on the perception of the witness and
                (2) helpful to a clear understanding of the witness’s testimony or the determination of a
                fact in issu e.
Tenn. R. Evid. 701(a). Our decision would be the same under either version of the Rule.




                                                  -7-
not ha ve as “r eadily a nd with equa l accur acy an d ade quac y” expla ined h is

interactions with and observations o f Appellant if he had not used the te rm

“calmly.” T he Adv isory Com mission Com ments to Rule 7 01 state th at

      In situations where a witness “cannot readily and with equal accuracy
      and ad equac y” testify withou t an opinio n, the witne ss ma y state
      opinions requiring n o expertis e. Cons equen tly, a lay witnes s may te stify
      that a per son wa s “drunk ” or that a ca r was trave ling “fast.”

Tenn. R. Evid. 701, Advisory Commission Comments. We can see no

difference between giving an opinion that someone was “drunk” or traveling

“fast” and giving an o pinion that som eone app eared to act “ca lmly.” Finally,

we do n ot believe th at Cern awsky’s use of the word “ca lmly” misle d the jury to

the preju dice of A ppellant. T his issue has no merit.



       Accordingly, the judgment of the trial court is AFFIRMED.



                                  ____________________________________
                                  JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
THOMAS T. WOODALL, JUDGE




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