         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON                 FILED
                              MAY SESSION, 1997            December 3, 1997

                                                          Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk

STATE OF TENNESSEE,                  )    C.C.A. NO. 02C01-9603-CR-00095
                                     )
             Appellee,               )
                                     )    SHELBY COUNTY
                                     )
V.                                   )    HON. FRED AXLEY, JUDGE
                                     )
COLLIER V. HARRIS,                   )
                                     )    (FIRST DEGREE MURDER IN
             Appe llant.             )    THE PE RPET RATION OF TH EFT)




FOR THE APPELLANT:                   FOR THE APPELLEE:

A. C. WHARTON                        JOHN KNOX WALKUP
District Public Defender             Attorney General & Reporter

W. MARK WARD                         DEB ORAH A. TULL IS
Assistant Pu blic Defende r          Assistant Attorney General
147 Jefferson, Suite 900             2nd Floor, Cordell Hull Building
Memphis, TN 38103                    425 Fifth Avenue North
                                     Nashville, TN 37243

                                     JOHN W. PIEROTTI
                                     District Attorney General

                                     EDGAR PETERSON
                                     Assistant District Attorney General

                                     LOR RAINE CRAIG
                                     Assistant District Attorney General
                                     201 Poplar Avenue, Ste. 301
                                     Memphis, TN 38103


OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                 OPINION

      The Defendant, Collier V. Harris, appeals as of right from his conviction of

first degree murder committed during the perpetration of theft, in violation of

Tennessee Code Annotated section 39-13-202(a)(2). The offense occurred on

Novem ber 29, 1 992. De fendan t received a senten ce of life imp risonm ent.



      Defen dant raise s the follow ing issue s in this app eal:

      (1)    The evidence is insufficient to su pport his conviction for first degree
             murde r comm itted in the pe rpetration of theft.

      (2)    Extension of the “felony murde r” rule to misdemeanor theft violates
             his rights to due process and equal protection afforded him by the
             Fourteenth Amendment of the United States Constitution.

      (3)    The trial court erred in allowing the State to introduce into evidence
             proof that the victim, prior to her death, claimed that Defendant had
             attempted to rape her on the basis that the p roof was hea rsay,
             irrelevant, improper proof of other crimes, and the prejudicial effect
             outweighed any probative value.

      (4)    The trial court e rred in allowing the State to introduce into evidence
             proof that the Defendant had raped four other women, as the
             evidence constituted improper proof of other crimes or bad acts by
             Defen dant.

      (5)    The trial court erred by ruling that in the event Defendant testified,
             the State could introduce impeachment proof by questioning the
             Defendant regarding the four rapes committed by Defendant, when
             the Defendant had not yet been convicted of any charges relating to
             the rapes.

      (6)    The trial court erred by d eclining to g rant App ellant’s req uest to
             instruct the jury m ore com pletely on how it was to consider
             circumstantial evidence.

      (7)    The trial court erred by refusing to instruct the jury as to the lesser
             included or lesser grade offenses of voluntary manslaughter and
             reckless homicide.

      (8)    The trial court erred by instructing the jury that it could consider
             proof of the other rapes to show Defendant’s intent and motive.

                                         -2-
       (9)    It was error for the prosecutor to be allowed to argue to the jury that
              it conside r evidenc e of other rapes to show D efenda nt’s prope nsity
              to commit the offense of rape.

       (10)   The cumulative effect of the errors deprived Defendant of a fair trial.



                      1. SUFFICIENCY OF THE EVIDENCE



       When an accused challenges the sufficiency of the convicting evidence,

the standard is whe ther, aft er revie wing th e evide nce in the ligh t mos t favora ble

to the prosecution, any rational trier of fact could have found the essential

eleme nts of the crim e beyon d a reas onable doubt. Jackson v. Virginia , 443 U.S.

307, 319 (1 979). O n app eal, the State is entitled to the strongest legitimate view

of the evidence and all infere nces the refrom. State v. Cabbage, 571 S.W.2d 832,

835 (Tenn. 1978).      Because a verdict of guilt removes the presumption of

innocence and replaces it with a presumption of guilt, the accused has the

burden in this court of illustrating why the evidence is insufficient to support the

verdict returned by the trier of fact. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn.

1982); State v. Grace, 493 S.W .2d 474, 476 (Tenn. 197 3).



       Questions concerning the credibility of witnesses, the weight and value to

be given the evidence, as well as all factual issues raised by the evidence , are

resolved by the tr ier of fac t, not this court. State v. Pappas, 754 S.W.2d 620, 623

(Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn . 1987). Nor ma y this court

reweigh or reevalu ate the ev idence . Cabbage, 571 S.W .2d at 835 . A jury verdict

approved by the tria l judge accre dits the State’s witnes ses a nd res olves a ll

conflicts in fa vor of the S tate. Grace, 493 S.W.2d at 476.




                                           -3-
       Several witnesse s testified du ring the S tate’s cas e-in-chief.        Wa lter

Blaydes met the victim, Peggy Sue Birkhead, in June 1991 while she worked as

a cashier at Mapco in Millington. As she was a single mother and he helped her

care for her five (5) year old son, the two became friends. During the two to three

months prior to the victim ’s dea th, she and B laydes bega n datin g. Both the victim

and Blaydes knew Defendant; Defendant is a distant co usin to Blaydes and the

victim met Defendant while working at Mapco. Approximately two months prior

to her death, the victim told Blaydes that Defendant was harassing her and trying

to get her to go out with him. Blaydes told Defe ndant “to back off.” T hen, five to

six weeks prior to her death, the victim told Blaydes that Defe ndant tried to pull

her pants off an d rape her.



       On November 28, 1992, the victim was celebrating her birthday. Blaydes

arrived at her apartment around 7:40 p.m. to take her to Sonny & Cher’s, a local

bar, to me et som e friend s. The victim w as still dr essin g whe n he a rrived. W hile

he waited, she told him that she had received her ATM card that day, and he

noticed it lying on the table. They left and went to Sonny & Cher’s and various

other bars, then returned to her home around 12:00 or 12:30 a.m. on November

29, 1992. The victim had previously given Blaydes a key to her apartment, and

he used it to unlock the back door. He stayed approximately twenty minutes,

during which time they talked and had sex. W hen B laydes left, the vic tim wa s in

bed and h e told h er he w ould c all the next morning to make sure she got up for

work. He exited through the back door and locked it. Blaydes drove home,

arriving there at ap proxima tely 1:00 a.m . At this time, he was living with Helen

Wh itley, his girlfriend o f many ye ars. W hitley was in bed wh en he a rrived.




                                          -4-
       When Blaydes woke up at 6:00 a.m., he tried to call the victim but got no

answer. He dressed and went to the local Mapco for coffee. Blaydes stayed at

Mapco for approxima tely ten (10) minutes visiting with friends, and then left for

the victim’s ho me to make sure she was up for work. On his way, he noticed

three (3) patrol cars just down the street. Entering through the back door using

his key to unlock it, h e notic ed tha t no ligh ts were on. Bla ydes s aw the victim

lying on the floor, with the body partially in the bathroom and partially in a

hallway. He checked her nude body for a pulse. After not feeling any pulse and

seeing a telephone cord wrapped around her neck, he left and ran down the

street to get the police. Blaydes told Officer White, “I think this young lady killed

herself.”   The two returned to the victim ’s hom e whe re Offic er W hite ag ain

checked for a pulse. Blaydes looke d in her bedro om and noticed that there w ere

no linens on the bed and the mattress wa s bare. O fficer W hite told him not to

touch anything. When the paramedics arrived, they entered through the front

door, but Bla ydes d id not see a nyone u nlock it. Later tha t mornin g, he dro ve to

the police statio n where he gave a statem ent. Blaydes was arrested that day for

the victim’s murde r, but charg es were eventua lly dismisse d again st him.



       Pandora Whitley resided across the street from Helen Whitley.                On

November 28, 1992, Blayd es left Wh itley’s home to pick u p the victim for her

birthday party. D uring th e early morn ing ho urs of N ovem ber 29 , at app roxim ately

1:00 or 1:30 a .m., Pandora Whitley was up fixing formula for her baby when she

heard a car pull up. Through her kitchen window, she saw Blaydes get ou t of his

van and go into H elen W hitley’s hom e.




                                          -5-
      Helen Wh itley, who ha d marrie d Blayde s by the tim e of the trial, testified

that she heard Blaydes come home a little after 1:00 a.m. on November 29, 1992.

When she left around 4:00 a.m. to go to work, Blaydes was sleeping.



      Officer Steven White, patrolman with the Millington Police Department, was

on East National Street answering a domestic violence call on November 29,

1992, at app roxim ately 6:3 0 a.m . As he was c omin g bac k out to his car, Blaydes

ran up to him saying, “I think th is girl done k illed herse lf.” Blaydes, w hom W hite

knew to be usually calm and quiet, was very excited and shouting. In fact,

Blaydes was so upset that he could not give White the victim’s apartment

numbe r. White followed Blaydes back to the apartment, and Blaydes pointed out

where her body wa s located . White told Blaydes not to touch anything, and then

checked for the v ictim’s pulse. The victim had a telephone cord wrapped around

her neck and her body and was spattered with blood. White felt no pulse and

noticed that her skin was cool. As the body was in a stiffened condition with the

blood settling to the lower areas of her body, he believed the victim was dead.

Wh ite noticed the front door was closed and was surprised when the firemen

came through it because he thought it was supposed to be locked. After other

police officers arrive d, W hite took B laydes o ut to his squad car and later followed

him to the police station.



      Lieutenant Robert Fredres, a fireman with the M illington Fire D epartm ent,

was called to 7708 East National on November 29, 1992. He entered through

the front door which was not locked. Since the victim was already dead, he was

told to leave as his as sistance was no t necess ary.




                                          -6-
       Sergeant Tabrina Estes, assigned to the Detective Division of the

Millington Police D epartm ent, was called to the victim’s home to investigate a

homicide. Wh ile there, sh e photo graphed the evide nce an d the ap artmen t.

During her investigation, she noted that portions of an ink p en and its spring were

stuck to the victim’s body. The victim had clothing lying underneath her. She

found a knife stained with blo od an d bloo d spa tters on the wa ll, along with several

items of cloth ing sta ined b y blood and fe ces. T he victim ’s telephone was found

undern eath a wet sheet in the bathroom sink. A bent knife was found undern eath

the chair in the hallway, and plastic pieces of that knife were found undern eath

the victim. A bent fork was also found in a brown box in the hallway. She was

unab le to get any fingerprints from the scene. On the victim’s table, she found

an envelope for a Money Belt ATM card and a checkbook register, with a balance

of $32.16. During further investigation at the First Tennessee Bank, she found

a receipt from the ATM booth in the trash fo r $30.0 0 withd rawn fr om th e victim ’s

checking account on November 29, 1992. The victim’s ATM card was found by

an unide ntified b ank c ustom er in the front lawn at the First Tennessee Bank, and

that card was turned over to Sergeant Estes.



       Dr. Vilette Hnilica, the medical examiner for Shelby County, performed the

autopsy on the victim. H er me dical opinion wa s that th e victim died o f multip le

types of injuries, any one of which could have caused her death. None of the

injuries were old er than a few hou rs, and all occurred while th e victim was s till

alive. Dr. Hnilica suspected that strangulation was the first injury and the other

injuries occu rred la ter, poss ibly due to a stru ggle. S he tes tified tha t the victim

suffered from stra ngulation with a fracture of the hyoid bone, and such fractures

only occur when tremendous manual force compresses unde rneath the m andib le

                                           -7-
and cuts off the blood su pply to the brain.            A hyoid bone fracture and

strangulation are “just a part of each other.” There were many bruises, abrasions

and scrapes around the victim’s neck, chin and upper trunk that related to the

strangulation effort.      There were no ligature marks on the victim’s body,

indicating that her stra ngulation was no t caused by a hanging.            Dr. Hnilica

explained that loss o f conscio usnes s from s trangula tion occurs betwee n thirty

(30) seconds and four (4) minutes. When this occurs, a perso n loses h er ability

to control the ir bowels a nd blad der. Evidence of fecal staining was found around

the victim’s anus, but, as the victim was nude, no evidence of urine staining was

found.



         The victim’s liver was smashed, or actually burst, at four (4) different sites.

A massive force with a blunt object was probably applied from either the front or

the back to smash the liver. Three (3) pints of free blood was found within the

body, ind icating the liver had “ble d out.”



         There we re twelve (12 ) individual sta b woun ds to the victim’s body. Two

(2) of the stab wounds went straight through the victim’s heart.             From her

examination, Dr. Hnilica determined that all of the stab wounds except for one (1)

were cause d by a thre e (3) to fou r (4) inch kn ife blade. These stabbings we re

chara cteristic of a single-edge blade with the sharp edge being down at the time

of the stabbing. One (1) stab wound was different in that it was rounded, poss ibly

caused by a pen.        The victim lacked defensive wounds on her hands and

forearms, which indica ted tha t she w as no t actively fighting or defe nding herse lf

with her han ds and that her bo dy was re latively stationa ry at the time of the

stabbing s.

                                           -8-
      There was a large bruise to the victim’s sternum area, an apparent blunt

force injury caused by something such as a knee, hand, board or brick. Four (4)

small puncture injuries were found on the victim’s back. These were tiny and

round, measuring only one-half (½) inch or less, and resembled the edge of

something sharp enterin g into th e skin.     She n oticed three (3 ) very sp ecific

patterns on the victim’s forehead, cheek, and the right side of her chest

undern eath her breast. Usually those patterned contusions match to some object

which caused them, but the autopsy did not reveal what object matched these

contusions. During the autopsy, Dr. Hnilica also took a com plete s exual a ssau lt

kit from the victim.



      Gail Delancey, manager at First Tennessee Bank, Millington, testified that

the victim’s ATM card was brought in by a customer who found it outside the

bank in the grass. After receiving the card, Delancey found out that it was the

card of the “girl who had been murdered.” She called the police, and gave the

card to Serge ant Este s. W hile Estes was at the bank inve stigating, they went

through the trash and found an ATM receipt for a withdrawal of $30.00 from the

victim’s checking account on November 29, 1992. Delancey also gave the police

the video from the ATM video camera.



      Pat Smith, the m anager of elec tronic banking a t the bank, exp lained th e

ATM transaction record of the victim’s ATM card for November 29, 1997. At

5:07:07 a.m., there was an inva lid requ est to w ithdraw funds from th e victim ’s

savings account in the amount of $36.00. At 5:07:44 a.m., there was a second

request from the same account for the amount of $32.00. Smith explained that

reques ts for withdrawals are only valid if in denominations of ten (10). Various

                                        -9-
other attempts were mad e acc ording to the A TM tra nsac tion rec ord, un til a

transaction was c omp leted a t 5:09:4 6 a.m . by a with drawa l from th e victim ’s

checking account in the amount of $30.00.



       Sheila Bramlitt, the loss prevention officer in the Corpo rate Sec urity

department of First Tennessee Bank, showed the videotape from the ATM booth

to officers of the Millington Police Department. Bramlitt noted that the Defendant

was the one performing the withdrawal from the victim’s account on the tape, and

that he was standing to the left of the booth where a person would not norm ally

stand to complete a transaction.



       Paulette Sutton, supervis or of the fore nsic sero logy lab at th e Unive rsity of

Tennessee, received a bed sheet from the victim’s home for analysis. It had

yellowish-tan stains. Several of the stains tested positive for semen and blood.

W hile none of the stains tested positive for urine, the sheet was wet when it was

found, and if the sheet had become satura ted en ough with wa ter, then the sta in

might not test positively for urine.



       Hoyt Eugene Phillips, a forensic scientist with the Tennessee Bureau of

Investigations (hereinafter “TBI”), testified that he is a latent fingerprint examin er.

In his examination of the telephone, fork, knives, pen, beer can and envelope, he

found a palm print inconsistent with either Blaydes or the Defendant and a shoe

print on the envelop e for the A TM ca rd.



       Linda Littlejohn, also a forensic scientist with the TBI, specializes in shoe

track comparisons and trace evidence. Upon examination of the victim’s robe,

                                          -10-
she determ ined that the cuts in the fabric were inconsistent with the serrated

edges of a knife rec overed fro m the vic tim’s apa rtment. When Littlejohn tested

Defe ndan t’s shoes, Nike Air Jordans, they matched the shoe print found on the

ATM envelop e.



      Same ra Zavaro, forensic scientist with the TBI a nd sero logy spe cialist,

examined the sexual assault kit taken from the victim during the autopsy. Wh ile

he found the presence of semen in the victim’s saliva and vagina, the amount

was so small as to make identification impossible. Human blood staining was

found on the clippings from the victim’s left hand fingernails. Human blood was

also found on the telephone, fork and bent knife.



      Anne Montgomery, the Associate Director of the Forensics Department for

GenTest Labora tories, performed the DN A ana lysis on the se xual as sault k it

taken from the victim and the susp ect kits take n from B laydes a nd the D efenda nt.

Montgom ery testified that DNA foreign to the victim was found underneath the

victim’s fingernails, and that DNA was consistent with the Defendant’s and

inconsistent with Blaydes. Blaydes could have been the sperm donor for the

semen stains found on the victim’s sheets, and the victim was the match for the

blood stains on the sh eet. The frequ ency of the particu lar DNA profile which

match ed the D efenda nt’s DN A is 1 ou t of 426.



      Luetric ia Pringle, au nt of the D efenda nt and a distant co usin of Blaydes,

testified that she was called by Defendant on December 7, 1993 to come to the

office of the Distric t Attorney G eneral. The Defendant was there on unrelated




                                         -11-
charges. When she arrived, the Defendant told her that he was “fixing to sign a

confession saying that [he ] killed th is girl.” Ms . Pring le spe cifically testified that,

       I can remember him [Defendant] saying something about the girl b it
       his penis . And w hen s he bit h is pen is, he ju st wen t wild and started
       -- if I remember the stuff he was saying, that he started stabb ing her.
       And he told m e som ething abo ut she stab bed him in his han d. I
       don’t know wheth er it was the right or the left hand . . . I say -- I can
       remember saying, ‘C ollier, why you didn’t go to the doctor so you
       could have something if she stabbed you in your hand?’ Or if she
       bit you, why you didn’t go to the doctor so you could ha ve
       something. He said, I can remember something -- I can’t remember
       exactly what it was about, They got me, or something, so I’m going
       to go ah ead an d sign it.

W hile she could not remember d iscussing with him what he did with the ATM

card at tha t time, Pring le did talk ab out it with him later.



       Shelley Totherow, former coworker of the victim at Mapco, testified that the

victim came into the Mapco early in November 1992 looking tired, upset and not

well-groomed. The victim no longe r worke d at Ma pco, b ut cam e by to v isit

Totherow. Totherow stated that the victim alwa ys looked well when she we nt out,

but on that day she was wearing no makeup. Also, the victim was wearing baggy

clothes, which was not the way she typically dressed. When Totherow asked her

if something was wrong, she said that the night before she was out with a group

of peop le and tha t Defend ant was in that grou p. Defe ndan t appa rently had left

something at her house, and when the group took her home, the Defendant

walked in after her. The victim said that Defendant “had her up against the

refrigerator or a wall an d was trying to force h imse lf on he r.” The victim planned

to tell Blayde s that De fendan t tried to rape her.



       Four young w omen testified as to rapes th ey were subjecte d to by the

Defen dant. Such testimony was subm itted for p urpos es of p roving Defe ndan t’s

                                            -12-
identity, motive, and/or intent. Anglia Phillips, a thirty (30) year old female, lives

in Millington and knows the Defendant. On October 11, 1993, she went to the

Mapco for a snack. She saw Defendant while at the Mapco, and, as it was

raining, she acc epted Defendant’s offer for a ride home. Defendant instead

drove Phillips to an open field, nearly a quarter of a mile from the Mapco. When

she aske d whe re De fenda nt was going , he rep lied “jus t ride” and sped up.

Phillips testified that it was too fast for her to jump out, and she felt like he “was

fixing to do something anyway.” When Defendant pulled over at the field, he

reached across her and opened her door. Defendant said he was “go ing to teach

these bitches a lesson.” When he came around to the passenger’s side of the

car, he snatched her out and grabbed he r by the neck. He began to have sex

with her from behin d, and then s aid “I thin k this co ndom has b ust.” Sh e was able

to break away from him at that point and run across the street. Phillips explained

that his arm was around her neck during the rape and that if she had not let him

do what he wanted she pro bably wo uld have passe d out be cause it was too

much pressu re.



      Ange la Arnold, who lived in military base housing in Millington, testified that

on November 21, 1993, she saw the Defendant at a friend’s home. She already

knew the Defendant as a friend of her husband. That evening on her way to her

car, the Defendant asked for a ride home. Arnold agree d and let Defe ndant drive

as she h ad be en drin king. O n their way, Arnold state d her conce rn for a friend

whose car she noticed was not at home. Defendant said he probably knew

where her friend was and would drive her there. Defendant drove to “the tree”

in Edmu nd Orgill Park , but no one was there. The two got out of the car and




                                         -13-
listened to the radio. Defendant suddenly tried to kiss Arnold, and she refused.

Arnold to ld him sh e wante d to go ho me an d tried to op en her c ar door.



      Defendant closed the door and then grabbed her around the neck. She

blacked out when she could no longer breathe or see. When Arnold awoke from

unconsciousness, Defe ndan t was je rking her pants dow n beh ind the car wh ile

she was on her stomach. When she tried to get away, he grabbed her around

her neck. She saw red and black and then slipped back into unconsciousness.

When she woke up this time, Defendant had unsnapped her bodysuit and was

having intercourse with he r. Whe n he finally stopped , he said “You wasn’t any

good ,” and to ld her to put he r clothe s bac k on. A rnold d resse d and got ba ck in

the car. He then poured alcohol on her vagina and made her drink some alcoh ol.

Defendant drove to a store nearby and went inside, but Arnold was in such a

state of shock that she could not run or scream for help. When Defendant

returned, he drove around and then pulled over in a field of trees. He asked her

“if [she] wan ted to die.” Remembering how he had choked her earlier and fearing

that he would choke her to death, she removed her clothes upon his demand.

Defendant raped her twice, wearing a condom both times. Wh en Ar nold to ld him

she c ould not do it anymore, he drove her around and then threatened her that

“he didn’t want to see the co ps kn ockin g on h is doo r.” W hen A rnold got home,

she told her husband what had happened and he called the police.



       Dan ielle Fisher testified that she resided in Millington on August 11, 1993.

On that date, s he walk ed to the milita ry base to see her boyfriend. Returning

home that evening, she noticed som eone following a pproximate ly fifteen (15) feet

behind her.    She later identified this man as Defendant in a police lineup.

                                         -14-
Defendant grabbed her and put his arms around her throat and mouth, then took

her behind a house in that neighborhood. When she told him he was choking

her, he let g o and told he r to take off her c lothes . She re move d the b ottom half

of her clothes, and Defenda nt forced her to get on her hands and knees.

Defendant raped her from behind, then ejaculated on her buttocks and the

ground. Following the rape, he took her to the b ack o f the ho use a nd told her to

take off the rest of her clothes. H e used an outside hose to wet down h er shirt

and then direc ted her to wipe he rself off. Afterw ards, De fendan t took her back

to the area of the rape and to ld her to put he r clothe s in a pile, then to walk back

toward the direction from which they had arrived. Defendant vanished and she

ran to a house where someone let her call the police.



      Sara Johnson lived in Millington on June 14, 1991. She knew Defendant

as a friend of a man she was dating.            On June 14, she was walking when

Defendant came by and asked if she wanted a ride. After she agreed, he went

to a store for beer and then drove to Richardson Landing in nearby Tipton

County. Defendant pulled over so that they could go to the bathroom. After

Johnson finished and was pulling up her pants, Defendant told he r “No, p ull your

pants down.” Johnson said she knew Defendant was not joking because of the

way he said it and the w ay he was a cting. Wh en she turne d to walk awa y,

Defendant came up behin d her a nd pu t his arms around her neck. Her eyesight

started going black and closing in. When she woke up, she was in the back seat

with her pants off, lying on her back. Defendant was on top of her having

intercourse. When he finished, he got out while she dressed. Johnson thought

he would kill her, but she still declined when Defendant deman ded mo re sex.

Defendant replied that “[she] knew how mean he could get,” and raped her again.

                                         -15-
Defendant drove her back into Millington, saying “You’re going to c all the cop s.”

Johnson denied that she would go to the police.


       The last witness fo r the State was Marjorie Featherstone, a sergeant in the

Detective Bureau of the Shelby County Sheriff’s Department. On December 9,

1993, the De fenda nt ask ed to s peak with he r while he was already in custody.

Defendant told her that he got into an argument with the victim, she pulled a knife

on him and cut his finger. He then took the knife away from her an d killed her.

He stated that he could not remember how he killed her because it had been so

long ago.


       The Defe ndan t offered no pro of at trial.



       Defendant was c onvicte d of first d egree murd er in the perpe tration of a

theft. At the time the offense was committed, first degree murder could be

committed by a “reckless killing of another committed in the perpetration of, or

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

theft, kidnapping or aircraft piracy.” Tenn. Code Ann. § 39-13-202(a)(2)(Supp.

1990) (emphasis added). A perso n com mits theft o f property if, with intent to

deprive the owner of property, the person “knowingly obtains or exercises control

over the property withou t the owner’s effective consent.” Tenn. Code Ann. § 39-

14-103. In Farm er v. State , 201 Tenn. 107, 296 S.W.2d 879, 883 (1956), the

Supreme Court stated that to sus tain a conviction for “felony” murder, the murder

must have been done in pursuance of the unlawful act and must not be mere ly

collateral to it.   The “killing must have had an intimate relation and close

connection with the felony and not be separate, distinct, and independent from

it.” Id. (citations om itted).

                                         -16-
       The evidence in the record indicates that the victim’s ATM card was lying

on the kitchen table in the victim’s apartment when Blaydes arrived on November

28, 1992. The victim told Blaydes that it had arrived that day in the ma il. There

is no evidence that the ATM card was removed while Blaydes a nd the victim we re

out that evening, nor p rior to Blaydes’ departure from the victim’s apartment

around 12:30 a.m. on November 29. Fro m the record , a reas onab le trier of fact

could find that Defendant entered the victim’s apartm ent ea rly in the morning on

November 29 and murdered her, first strangling her until she lost control of her

bowe ls and bladder, then stabbing her twelve (12) times and crushing her liver.

Defendant voluntarily admitted killing the victim to two individuals, his aunt and

a police o fficer.



       When the victim w as foun d, the ATM card was m issing. The A TM card

was found in the grass outside a branch of the victim’s bank, and a receipt

showing a withdrawal of thirty dollars ($30.00) from the victim’s checking account

was found in a trash can. Defendant’s shoe print was found on the envelope

containing the ATM card at the victim ’s apartm ent, and a videotape shown to the

jury identified Defendant as the one using the ATM ca rd to withdraw thirty dollars

($30.00 ) from the victim’s acc ount on Novem ber 29, 1 992.



       W hile the proof in this regard was largely circumstantial, the jury acted

within its prerog ative in returning a verdict of g uilt. See, e.g., State v. Matthews,

805 S.W.2d 776, 779-80 (Tenn. Crim. App . 1990).         A crime may be established

by the use of circ umsta ntial eviden ce. State v. Tharpe, 726 S.W.2d 896, 899-900

(Tenn. 1987). Upon review, this court finds that a ration al trier of fa ct cou ld have

concluded that the De fenda nt killed the victim and did s o in furthera nce of a th eft

                                          -17-
on the basis of this circumstantial evidence.           Before the money could be

withdrawn from the accou nt, the theft of the victim’s ATM card, which the victim

had lying on a ta ble in her a partme nt, was ne cessar y. See State v. Williams,

C.C.A. No. 02C01-9209-CR-00220, slip op. at 11-12, Shelby County (Tenn. Crim.

App., at Jackson, Oct. 12, 1994) (No Rule 11 application filed). The conduct

causing the dea th of the victim must b e done in furtherance of the underlying

crime and the death must be in consequence of it. Id., citing Comm onwealth v.

Redline, 137 A.2d 472, 476 (1958). The evidence is sufficient to support the

conviction beyon d a rea sona ble doubt that Defendant killed the victim during the

perpetra tion of a the ft. This issu e is withou t merit.



                 2. C ONSTITUTIONALITY OF “MISDEMEANOR MURDER”



       Defendant argues that the extension of the “felony” murd er rule to his

conviction of first degree murder in the perpetration of misdemeanor theft violates

the due process and equal pr otection c lauses o f the Fou rteenth Amendment of

the United States Constitution.         Our Supreme Court recently upheld the

constitution ality of this statu te. State v. Walker, 893 S.W.2d 429 (Tenn. 199 5).

W hile Defendant challenges the issue on a slightly different basis d ue to h is

conviction of first degree murder in the perpetration of a misdemeanor theft, the

result is the same . The legislative intent of the statute is to be ascertained from

the natural and ordinary meaning of the langu age us ed. Carson Creek Vacation

Resorts, Inc. v. State, 865 S.W .2d 1, 2 (T enn. 19 93); National Gas Distributors,

Inc. v. State, 804 S.W.2d 66 (Tenn. 1991). The language of the statute is such

that first degree murde r is “[a] reckles s killing of an other co mm itted in the

perpetration of, or attempt to perpetrate any . . . theft . . .” Tenn. Code Ann. § 39-

                                           -18-
13-202(a)(2 ). Defendant asserts that because the amount stolen was only thirty

dollars ($30.0 0), the th eft can not res ult in a felony murder conviction. The clear

and plain meaning of the language in the statute is that a reckless killing

committed in the perpetration of any theft is considered first deg ree murd er,

regardless of the monetary value of the property which is the subject of the theft.

W hile the term “felony m urder” has long been a term used to describe the statute

in question, we note that the term “felony murder” does not appear in the current

version of the Cod e. See Tenn. Code Ann. § 39-13-202. This issue is without

merit.



         3. H EARSAY EVIDENCE OF D EFENDANT’S ATTEMPTED RAPE OF V ICTIM



         Defendant argues the trial court erred in admitting hearsay evidence of

victim’s claims that Defendant attempted to ra pe her prior to he r murder.

Specifically, Defen dant arg ues tha t the eviden ce was irrelevant, unduly

prejudicial, and the state of mind exception for hearsay was inapplicable.



         Blaydes testified that the victim told him the Defendant had been harassing

her and, on one oc casion, trie d to pull he r pants off and rape her. Ms. Totherow

testified that the victim came by her store in early November 1992 and she looked

like she had not slept. When Totherow aske d the vic tim if anything was wrong,

the victim told her that Defendant had followed her into her home and pushed her

against the wall where he attempted to rape her. On both occasions, Defendant

objected on the basis of hearsay. The trial court ruled such testim ony ad miss ible

under the state of mind exception to the hearsay rule.




                                         -19-
      Rule 803(3) of the Tennessee Rules of Evidence establishes the “Then

Existing Ment al, Em otiona l, or Physical Condition” exception to the hearsay rule:

      A statement of the decla rant’s then existing sta te of mind, emotion,
      sensation, or physical condition . . . but not including a statement of
      memory or belief to prove the fact remembered or believed unless
      it relates to th e execu tion, revoca tion, identification, or terms of
      decla rant’s w ill.

      Only the declarant’s state of mind may be proven by this hearsay

exception. See Advisory Commission Com men ts to Ru le 803(3), Tenn. R. Evid.

At trial, the State relied upo n the cas e of State v. Cravens, 764 S.W.2d 754

(Tenn. 1989 )(Tes timon y that vic tim m ade s tatem ent im plicatin g his death was

adm issible to sho w state of min d of victim , his fear and apprehension of death,

in view of claim of defendant that victim was aggressor and that homicide was

justifiable.). Defenda nt asserts in his brief tha t Cravens is not app licable, but,

rather, the case of State v. S mith, 868 S.W .2d 561 (Tenn . 1993), cert. denied,

513 U.S. 96 0 (1994 ), is controlling. (Harmless error to admit statements of

victim’s fear of defendant under state of mind hearsay exception as not directly

probative on issue of whether defendant committed murder.) In this case, the

State sought to prove the Defendant guilty of either premeditated and de liberate

first degree murder, first degree murder in the perpetration of rape, or first degree

murde r in the perp etration of th eft. To prove rape, the victim’s state of mind as

to her fear o f Defend ant was relevant to th e issue o f consen t. Defense counsel

sought to prove through cross-examination that the victim consented to sex and

that the doo r to her ap artmen t was no t locked. Evidence of the prior attempted

rape was probative to the theory of the State’s case-in-chief. Clearly, the

statem ents of the vic tim to Blaydes and Totherow fall within this hearsay

exception.




                                        -20-
       Nevertheless, given the fact that the jury found the Defendant guilty of

murder in the perpetration of a theft rather than in the perpetration of a rape, any

error by the trial court in admitting this testimony was harm less. See State v.

How ell, No. 03C01-9406-CR-00203, Knox County (Tenn. Crim. App., at

Knoxville, F eb. 12, 19 96), perm. to appeal denied (Tenn. 199 6).



                          4. S PECIFIC ACTS OF MISCONDUCT



       Defendant argue s the tria l court e rred in permitting fou r wome n to testify

regarding rapes co mm itted by the D efenda nt.         The tria l court adm itted this

evidence on the limited ba sis of the crimes’ un iqueness a nd “substan tial identity”

to the crime for which D efenda nt was o n trial. Rule 4 04(b) of th e Tennessee

Rules of Evidence provides as follows:

       Other Crimes, Wrongs, or Acts - Evidence of other crimes, wrongs
       or acts is not admissible to prove the chara cter of a perso n in order
       to show action in c onformity with the ch aracter trait. It may,
       however, be ad missible for other purposes. The conditions which
       must be satisfied before allowing such evidence are:

       (1) The court upon request must hold a hearing outside the jury’s
       presence;

       (2) The court must determine that a material issue exists other than
       conduct conforming with the character trait and must upon request
       state on the record the material issue, the ruling, and the reasons for
       admitting the evidence; and

       (3) The court mus t exclud e the e videnc e if its pro bative v alue is
       outweighed by the danger of unfair prejudice.

       When evidence that defendant committed another crime is offered as proof

of his identity as the perpetrator of the crime in question, the “modus operandi

of the other crime and of the crime on trial must be substantially identical and

must be so uniqu e that p roof tha t the de fenda nt com mitted the oth er offen se fairly



                                           -21-
tends to establish that he also comm itted the offe nse with w hich he is charge d.”

Bunch v. State, 605 S.W.2d 227, 230 (Tenn. 1980).                “To be relevant and,

therefore, admissible, it is not nec essary that the oth er crime be ide ntical in every

detail to the o ffense on trial; it is sufficient if evidence of the other crime su pports

the inference that the perpetrator of it, shown to be the defendant, is the same

person wh o comm itted the offense on trial.” Id. at 231.



       In the case sub judice, the trial court held a hearing outside the presence

of the jury and determined that the State was relying on identity as a basis for

admissibility.    Identity had become an issue during voir dire and opening

statements. The trial court also listed motive, intent, and absence of mistake or

fact as justification for adm issibility. In describing the uniqueness of the rapes,

the trial court stated as follows:

       The Defen dant go t these ind ividuals, the se wom en alon e. They
       happened in the area of our county, the Millington area. He was
       either a friend or had common friends with all of these victims except
       one. All of them knew him, as in the Peggy Birkhead matter. The
       choke-holds, from behind, ch oking the victim s in to
       unconsciousness. And in one occasion, the victim was coming to,
       finds herself behind her car, he beg ins to cho ke her into
       unconsciousness again. From what the Cour t’s experience is, and
       from what the Court’s heard on the Peggy Birkhead matter, she had
       come to more than once, I suggest. And also cleaning up the crime
       scene, as in the crime scen e at Pe ggy B irkhea d, as in the victim
       who was raped in the back yard of the apartments. Enough.
       The re’s certainly enough for the Co urt to allow th e prose cution to
       put these witnesses on.

       Not only were there unique characteristics in the modus operandi of the

rapes, but all four women positively identified the Defendant as the man who had

raped them. In addition to the similarities listed by the trial court, all of the women

raped were young, between the ages of eighteen (18) and thirty (30), and all of

the offens es oc curred during the eve ning h ours in an iso lated lo cation. The



                                           -22-
victims’ descriptions of the acts committed by the Defendant were similar, and

though there a re som e differe nces in the allegations, the similarities outweigh the

differences. See State v. McKnight, 900 S.W.2d 36, 52 (Tenn. Crim. App. 1994).



       Even if it were error to admit suc h testimony, any error would be harmless

as Defe ndan t was n ot con victed o f first deg ree m urder in the perpetration of rape

of the victim . This issu e is withou t merit.



                        5. IMPEACHMENT BY PRIOR BAD ACTS



       Defendant argues the trial court erre d in ruling tha t if Defend ant were to

testify, he could be impeached by evidence that he raped the four women. The

trial court based its ruling on Rule 608 of the Tennessee Rules of Evidence.

While Defen dant arg ued tha t the eviden ce wou ld be irreleva nt and p rejudicial, the

trial court stated:

       W ell, it would, bu t I don’t kno w of any e xception to the rule that
       would prevent it. It falls within the statutory definition. If the State
       wishes to pursu e it, I will allow the S tate to do it.

       The State followed the proper notice procedures to the Defendant and the

trial court held a hearing on the conduct’s probative value on cred ibility versus its

prejudicial effect. See Tenn. R. Evid. 608(b)(3). However, this evidence was

inadm issible as it does not relate to the Defendant’s character for truthfulness or

untruthfulness. Our court has previously held that specific instances of sexual

conduct are not probative of truthfulness or untruthfulness. State v. Ford, 861

S.W.2d 846, 84 9 (Ten n. Crim. A pp. 199 2); State v. Jackson, 697 S.W.2d 366,

371 (Tenn . Crim. A pp. 198 5). The Adviso ry Com miss ion Co mm ent to R ule 608

states: “To the extent that State v. Caruthers, 676 S.W.2d 935 (Tenn. 1984), can

                                          -23-
be construed as allowing cross-examination about a prior act of rape to impeach,

the proposa l [rule] would chang e that result.”



      Although the trial court’s ruling was in error, we find that this error did not

undu ly prejudice the Defe ndant.       A s the four women had already testified

regarding the prior acts of rape, the impeachment evidence of these sa me ac ts

would not have further influenced the jury to the Defendant’s detriment. After

considering the entire record in the case sub judice, we find this error was

harmle ss. Ten n. R. Crim . P. 52(a).



        6. JURY INSTRUCTIONS ON CIRCUMSTANTIAL EVIDENCE



      Defendant argues the trial court erred in refusing to instruct the jury “more

completely” on circumstantial eviden ce. W hile such request was refused by the

trial judge, the request was never submitted in writing as required by Rule 30 of

the Tenn essee Rules o f Crimina l Proced ure. Abs ent a written reques t, a trial

court’s refusal to g ive a spec ial instruction is not error. State v. Mackey, 638

S.W .2d 830, 836 (Tenn. Crim . App. 1982 ).



      Defendant argues that the S tate’s case was proven solely by circumstantial

evidence, and that failure to give the instruction was reversible error.        The

Defendant requested the trial court to charge the jury that before an accused can

be convicted of a criminal offense based solely on circumstantial evidence, the

“facts and circum stances m ust . . . exclude every other rea sona ble hyp othes is

save the gu ilt of the d efend ant.” A trial court has a du ty to give a co mplete

charge of the law a pplicable to the facts of the cas e. State v. Thompson, 519

                                         -24-
S.W.2d 789, 792 (Tenn. 1975). When all the proof is circumstantial, the trial

court has a duty to charge the jury as to the law of weighing circumstantial

evidence even if suc h an instru ction is not r eques ted. Id. However, when the

proof in a case consists of both direct and circumstantial evidence an instruction

on the law for weighing solely circumstantial proof must be given only if the

defendant reques ts it. Monts v . State, 214 Tenn. 171, 379 S.W.2d 34, 40 (1964 ).



      The proof in this case consists of both direct and circumstantial evidence.

The Defen dant’s sta temen ts to his aunt and a police officer are direct evidence

of his guilt. As the proof adduced at trial was both direct and circumstantial, the

trial court did not com mit reversible error by failing to ins truct the jury “more

completely” on circums tantial evide nce. State v. Teague, 680 S.W.2d 785, 790

(Tenn. 1984), cert. denied, 493 U.S. 874 (19 89); Thompson, 519 S.W.2d at 792.

This issu e has n o merit.



                 7. L ESSER GRADES/LESSER INCLUDED OFFENSES



      Defendant argues that the trial court erred by failing to instruct the jury on

the lesser included/lesser grade offenses of voluntary manslaughter and reckless

homicide. The offense for which Defendant was convicted occurred in November

1992. Reckless homicide did not become a criminal offense until 1993. Tenn.

Code Ann. § 39-13-215, enacted by Public Acts of 1993, ch. 306, § 2. As such,

Defendant could not have been convicted of an offense which did not exist at the

time of his criminal conduct. Therefore, there was no error committed by the trial

court in refusing to charge the jury regarding reckless homicide.




                                       -25-
       A trial court is not required to instruct the jury on lesser offens es in

circumstances where the evid ence in the re cord w ould not supp ort a conviction

for the lesse r offense . State v. T rusty, 919 S.W.2d 305, 311 (Tenn. 1996);

Johnson v. State, 531 S.W.2d 558 (Ten n. 1975); Owen v. State, 188 Tenn. 459,

221 S.W .2d 515 (1949); Powe rs v. State, 117 Ten n. 363, 97 S.W . 815 (1906).



       Voluntary manslaughter is defined as the “intentional or knowing killing of

another in a state of passion produced by adequ ate provocation sufficient to lead

a reasonable person to act in an irrational m anner.” T enn. C ode An n. § 39-13-

211(a )(em phas is added). As set forth above, the proof in this case showed that

the victim was killed in a violent manner. She was stabbed twelve (12) times,

with two (2) of the these w ounds through her hea rt. She received a blunt trauma

injury that literally burst her liver at four (4) sites. She was also strangled

sufficiently to fra cture he r hyoid bo ne.



       Defendant argues that the proof justified a charge of the lesser grade

offense of voluntary man slaughter. He cites the proof that he had told his aunt

that he “just went wild” and started stabbing the victim after she bit his penis.



       As a panel of this court ha s previously stated in re ference to volun tary

manslaughter, “[t]he resentment must bear a reasonable proportionality to the

provocation and not every provocation will reduce killing to manslaug hter.” State

v. Thompson, No. 03C01-9503-CR-00060, slip op. at 6, Cocke County (Tenn.

Crim. App., at Kno xville, De c. 12, 1 996)( Rule 11 application denied). In State v.

Williams, No. 02C01-9209-CR-00220, Shelby County (Tenn. C rim. App .,

Jackson, Oct. 12, 1 994)(N o Rule 1 1 applica tion filed), the defendant was

                                              -26-
convicted of felony murder of his father, and the offense was committed in the

victim’s home during the perpetration of a robbery. The victim was stabbed

sixteen (16) times. Based upon evidence of a struggle between the defendant

and victim, the defendant argued that the trial court erred by failing to instruct the

jury on “manslaughter.” Noting that the trial court provided instructions on second

degree murder and that the victim was stabbed sixteen (16) times , our co urt held

that the proof did not warrant an instru ction on either volun tary or involuntary

mans laughte r. State v. Williams, slip op. at 35.



      In the case sub judice, we conclude that the multiple injuries inflicted upon

the victim constitute an unreasonably high proportionality to the “provocation”

relied upon by Defendant, and as a result, an instruction on vo luntary

manslaughter was not warranted.



      Furthermore, we question as to whether voluntary manslaughter is a lesser

grade offense of the cha rge of m urder in the perpetra tion of theft in this case . It

is true that our supreme court has stated that “[v]oluntary manslaughter is a

lesser grade of first degree murder un der Tennessee statutes.” Trusty , 919

S.W.2d at 311. However, the analysis in Trusty was in the context of attempted

premed itated and delibera te first degree mu rder.



      Appr oxima tely two months after the supreme court’s opinion in Trusty was

filed, our supreme court filed its opinion in State v. Kimbrough, 924 S.W.2d 888

(Tenn. 1996), where the Court held that the offense of “attempted felon y-murder”

does not exist in Tennessee. Included in its analysis in Kimbrough, our supreme

court noted that “felony murder” differs from other types of murder by holding the

                                         -27-
defendant strictly liable even when the killing is unintended. The court further

quoted from 2 Charles E. Torcia, Wharton’s Criminal Law § 147 at 300-01 (15th

ed. 1994) that “felony-murder” involves “an intended felony and an unintended

homicide.” Id. at 890.



      Voluntary manslaughter requires proof of an intentional or knowing killing.

Tenn. Code Ann. § 39-13-211(a).          At the time of Defendant’s offense, the

gravamen of the offense of first degree murder committed in the perpetration of

theft was an intent to commit theft and a reckless killing during the perpetration

of the theft. The Tennessee Supreme Court concluded in Kimbrough that the

offense of “attempted felony murder” does not exist in Tennessee because an

“attemp t” is an intentional act and “one cannot intend to accomplish the

unintended [”felony murder”].”       Id. at 892.   In ligh t of Kimbrough, we are

constrained to conclude tha t under the pa rticular facts of this case, volunta ry

manslaughter is not a lesser grade of murd er in the pe rpetration of a theft.



      Also as voluntary manslaughter requires proof of an intentional or knowing

killing in a state o f passion caused b y adequ ate provocation (elements not

included within the crim e of m urder in the perpetration of theft), neither can it be

a lesser included offense o f murde r. See Trusty 919 S.W .2d at 311 .



      There fore, this issu e is withou t merit.



                               8. M OTIVE AND INTENT




                                         -28-
      Defendant argues that the trial cou rt erred in instru cting th e jury tha t it

could consider “crimes other than that for which [Defendant] is on trial” as

evidence to prove Defendant’s “motive and intent.” The “other crimes” evidence

consisted of the testimony of four women who each claimed the Defendant raped

and strangled them. The instruction the judge gave was as follows:

      If from the proof you find the defendant has committed crimes other
      than that for which he is on trial, you may not consider such
      evidence to prove h is dispos ition to commit such a crime as that on
      trial.

      This evidence m ay only be con sidered by you for the limited
      purpose of dete rminin g whe ther it pro ves: 1) the de fenda nt’s
      identity; that is, such evidence may be considered by you if it tends
      to establish the defen dant’s ide ntity in the case on trial; 2) motive;
      that is, such evidence may be considered by you if it tends to show
      a motive of the defendant for the commission of the offense
      prese ntly charged; 3) the defendant’s intent; that is, such evidence
      may be considered by you, if it tends to establish that the defendant
      actua lly intend ed to c omm it the crim e with which he is p resen tly
      charged.

       Some evidence of oth er crimes, if conside red by you for any
       purpose, must not be considered for any purpose other than that
       specifically stated.

       Defendant admits that no objection wa s made at trial regarding this jury

instruction and that the issue was n ot raise d in his m otion fo r a new trial. Th is

issue is, therefore, waived pursuant to Rule 3 of the Tennessee Rules of

Appe llate Procedure. Notwithstanding his failure to addre ss this issu e prior to

this time, Defendant asserts the charging of the ju ry with th is instruction rises to

the level of plain error.



       Wh ile appellate courts generally do not consider issues not raised at the

trial court level, if an error affects the “su bstantial rights of an ac cused,” then it

may be noticed at an y time if “necessa ry to do substantial justice.” Tenn. R.

Crim. Pro. 52(b); State v. Ogle , 666 S.W .2d 58, 60 (Tenn . 1984); State v. Butler,

                                         -29-
795 S.W.2d 680, 683 (Tenn. Crim . App. 1990 ). For a “substan tial right” to have

been affecte d, the e rror m ust ha ve pre judice d the a ppella nt; in oth er wor ds, it

must have affected the outcome of the trial court procee dings. United States v.

Olano, 507 U.S. 725 (1993). The Defendant bears the burden of persuasion, and

this burden has not been met. Even if the trial court erred in charging the jury as

to the Defendant’s motive, identity and intent, he was not convic ted of m urder in

the perpetration of rape. If any error was committed, it was harmless beyond a

reason able do ubt. This issue is with out me rit.



                         9. PRO SEC UTO R’S ARGUMENT



       Defendant argues that the trial co urt erred b y allowing th e prose cutor to

state in his closing argument to the jury that it was to consider evidence of the

other rapes to sho w Defend ant’s propensity to comm it the offens e of rape . In

Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758 (1965), the test to be

applied by an ap pellate court in reviewing instances of improper conduct was set

forth by our supreme court. The question is “whether the im prope r cond uct co uld

have affected the verdict to the prejudice of the de fendant.” Id. at 340, 385

S.W.2d at 759. In Judge v. State, 539 S .W .2d 34 0 (Te nn. C rim. A pp. 19 76), this

Court noted five factors ge nerally accepted as those to be considered when

making the determination of whether improper conduct affected the verdict to the

defendant’s prejudice. Those factors are as follows:

       1.     the conduct complained of viewed in context a nd in light of th e facts
              and circumstances of the case;
       2.     the curative me asures underta ken by th e trial court a nd the
              prosecution;
       3.     the intent o f the prose cutor in m aking the improp er statem ent;
       4.     the cumulative effect of the improper conduct and any other errors
              in the record; and,

                                          -30-
      5.      the relative strength or weakness of the case.

Id. at 344.

      The prosecutor’s remarks to which the Defendant objects to are as follows:

      And now you heard fro m seve ral wom en toda y, Angela Arnold,
      Anglia Phillips, Danielle Fisher, Sara Johnson, an d the J udge is
      going to instruct you as to what you can use their testimony for. And
      I believe that one of those things that you will be allowed to use that
      for is motive and intent. What was his motive for coming in there?
      What was his intent for coming in there? You can also use it for
      identity. And it was to rape her.

Defendant argue s that th e pros ecuto r’s comm ents about the Defenda nt’s motive

and intent are nothing more than an argument that Defendant had a p ropens ity

to commit other crimes if he had committed the prior crimes of rape. No objection

was made at trial regard ing the se co mm ents b y the pr osec utor, so this issu e is

waived p ursuan t to Rule 3 of the Te nness ee Ru les of Ap pellate P rocedu re.



      Notwithstanding the waiver, a review of the merits of this issue does not

show any prejudice to Def enda nt, in light of facts and circumstances of the case.

Defe ndan t was c onvicte d of m urder in the perpetration of theft, and not murder

in the perpetration of rape. The jury chose not to convict the Defendant of

murder in the perpetration of rape regardless of the prosecutor’s arguments.

Prior to mak ing the sta temen ts regarding motive and intent, the prosecutor told

the jury that the judge would instruct them as to the limited nature of the four

women’s testimony, thus the argument is not shown to have been made in bad

faith. The judge did later instruct the jury, as discussed in Defendant’s issue

number eight (8), that the evidence of the other rapes was only to be considered

for the limited purpose of determining whether it proved Defendant’s motive,

intent, or identity. In the absence of proof to the contrary, we must presume that

the jury followed the trial cou rt’s instruction . See State v. Compton, 642 S.W.2d

                                         -31-
745, 746 (Tenn. Crim. App. 1982); Frazier v. S tate, 566 S.W.2d 545, 551 (Tenn.

Crim. A pp. 197 7) (citations omitted) . This issu e is withou t merit.



                           10. CUMULATIVE ERRORS



       The Defendant argues that the cumulative effec t of the errors depriv ed him

of a fair trial and justifies a new trial. The Defendant cites Peop le v. Allen, 420

N.W.2d 499 (Mich. 1988), as authority. Upon review of Allen, we do not find this

case as binding authority in Tennessee. This court found only one error in

relation to the trial court’s ruling on impeachment of the Defendant by prior bad

acts, and ruled the error was harmless. Any holding that an error is harmless

nece ssarily contemplates that an analysis of the cumulative effect of harmless

errors has been made . State v. Ralph Parton, No. 117, slip op. at 8, Sevier

Coun ty (Tenn. Crim. App., at Knoxville, Apr. 10, 1991)(Rule 11 application

denied, Sept. 23, 199 1). Thus there is not such an a ccumu lation of errors in this

case capab le of having deprived Defen dant of a fa ir trial. Id. This issue is

without m erit.



       We affirm the ju dgme nt of the trial co urt.



                                   ____________________________________
                                   THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
GARY R. WA DE, Judge

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___________________________________
JOHN H. PEAY, Judge




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