           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE             FILED
                         APRIL, 1997 SESSION
                                                         May 22, 1998

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
STATE OF TENNESSEE,              )
                                 )     No. 01C01-9605-CC-00208
      Appellee,                  )
                                 )     Rutherford County
vs.                              )
                                 )     Honorable J. S. Daniel, Judge
JAMES CLAYTON YOUNG, JR.,        )
                                 )
                                 )     (Felony murder)
      Appellant.                 )



FOR THE APPELLANT:               FOR THE APPELLEE:

R. STEVEN WALDRON                JOHN KNOX WALKUP
TERRY A. FANN                    Attorney General & Reporter
202 West Main St.
Murfreesboro, TN 37130           DARYL J. BRAND
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493

                                 WILLIAM C. WHITESELL, JR.
                                 District Attorney General
                                 303 Rutherford County Judicial Bldg.
                                 Murfreesboro, TN 37130



OPINION FILED: ____________________




REVERSED AND REMANDED




GARY R. WADE, JUDGE
                                       OPINION



              The defendant, James Clayton Young, was convicted of felony murder,

a Class A felony. The trial court imposed a life sentence. The grand jury had returned

a three-count indictment that included charges of deliberate and premeditated murder,

felony murder in the perpetration of a rape or an attempted rape, and unlawful disposal

of a corpse. The defendant pled guilty to the unlawful disposal of a corpse and

received a one-year sentence to be served concurrently with the life sentence for felony

murder. Neither that conviction nor the sentence is at issue in this appeal. The trial

judge granted the defendant’s motion for judgment of acquittal on the first degree

murder charge and had instructed the jury on second degree murder, voluntary

manslaughter, reckless homicide, and criminally negligent homicide.



              In this appeal of right, the defendant raises numerous issues. For the

purposes of this appeal we have grouped related issues into the following categories:

              1.     Sufficiency of the evidence. (Trial issues 19,
                     20, 21, 22)

              2.     Denial of defendant’s Motion to Suppress
                     and use of audio-tape at trial. (Pre-trial issue
                     1, Trial issues 1 and 18)

              3.     Expert testimony. (Trial issues 8, 9, 10, 11,
                     12, 13, 14, 15)

              4.     Lay witness testimony. (Trial issues 2, 5)

              5.     Admission of photographs and video tapes.
                     (Pre-trial issues 2 and 3; Trial issue 6)

              6.     Testimony of Jad Starnes. (Trial issues 3 and
                     7)

              7.     Trial court’s comments. (Trial issue 4)

              8.     A defendant’s right to plead guilty. (Trial
                     issue 17)

              9.     Prosecutorial misconduct. (Trial issue 16)

                                            2
             10.    Right to a fair trial. (Trial issue 23)



             There were errors in the course of trial and, in our view, the cumulative

effect of these errors requires a new trial. The judgment is, therefore, reversed.



                                       I. Facts

             At approximately 3:00 p.m. on January 8, 1995, Rodney Vaughn was

driving to his mother’s house in rural Rutherford County when a construction worker

flagged down his vehicle. When Vaughn stopped, the worker, who was unable to

speak English, led him to a place where he could see what appeared to be a blanket

covering a body in a steep ravine some twenty feet from the road. Vaughn telephoned

911, met the sheriff’s officers who responded to the call, and led them to the body of

a young man clad only in blue jeans. A plaid sleeping bag covered the upper portion

of the body. No identification was found. An autopsy established ligature strangulation

as the cause of death. Marks on the body indicated that the feet and hands had been

bound. There was a small gash on the back of the head. The body had other marks

and bruises and the pubic hair had been recently shaved.



              During this period of time, Detective Melvin Cunningham of the

Murfreesboro Police Department had been investigating the disappearance of a

nineteen-year-old college student, Joseph Ladd. His employer notified his family when

Ladd did not report for work on the fifth and sixth of January. His roommates had not

seen Ladd. Shortly after initiating his investigation, Detective Cunningham interviewed

Warren Jones and the defendant. Both men acknowledged that they last saw Joey

Ladd on the evening of the third of January. Jones and Ladd, co-workers with the

defendant at the Garden Plaza Hotel in Murfreesboro, had gone to the defendant’s

apartment to drink some beer and talk. When Jones left at about 1:30 a.m., Ladd


                                            3
declined a ride, explaining that he would walk home. The defendant claimed that Ladd

left a few minutes after Jones departed.



                     When Detective Cunningham learned of the discovery of the

unidentified body, he went to the morgue and determined that the deceased met Ladd’s

general description. When Ladd’s roommate came to the morgue, he was able to

make a positive identification.



              The day after the body was found, investigators established that the

sleeping bag belonged to James Andrew Starnes, a friend of the defendant. Starnes

told the officers that he had probably left the bag at the defendant’s apartment.



                     At noon on January 10, Detectives Mark Warf and Cunningham

interviewed the defendant, a thirty-four-year-old college student at Middle Tennessee

State University, at his apartment. The defendant first claimed that the three men went

to his apartment after work, drank some beer, listened to music, and talked. He said

that at about 1:30 a.m., Jones left and that Ladd left shortly thereafter. The defendant

signed his statement and consented to a search of his apartment. The detectives

found a paint ball gun and other paint ball equipment, leather straps, hair clippers, and

some catalogs.1



                     Later that afternoon, the defendant telephoned Detective Warf and

told him that he had more information. When the detectives returned, the defendant



1
       The record of the hearing on the motion to suppress indicates that the
catalogs displayed pornographic material and a variety of sexual apparatus. The
wrapper that contained the catalogs showed that the defendant had received them
after Ladd’s death. The defendant told the police that he did not like the catalogs
and had planned on sending them back. The jury heard nothing about the content
of the catalogs.

                                           4
revealed that he was gay, but did not engage in homosexual relationships. He claimed

that only one person was aware of his homosexuality.



              After officers interviewed Warren Jones that evening, the defendant was

brought to the sheriff's department for further questioning. He arrived at the station at

about 11:30 p.m. The interview continued throughout the night, and at approximately

5:00 a.m. the defendant signed his second written statement. In this document, he

acknowledged that his actions caused in the death of Joey Ladd. The defendant did

not testify at trial. The interview at the sheriff's department was recorded. Both the

audiotape and the written statement were entered into evidence at trial.



               The defendant told officers that he and Jones, a twenty-four-year-old

student at Middle Tennessee State University, had become concerned about Ladd’s

excessive drinking and partying. They decided to approach Ladd after work and talk

to him about his reckless lifestyle. They recalled driving Ladd to his apartment on

Tuesday, January 3, at about 10:30 p.m. Jones followed in his own car. He related

that for the next two hours the men talked about paint ball, school, work, and girl

friends. According to Jones, Ladd drank an entire six pack of “tall boys” and then

began drinking Jagermeister. The defendant drank beer and then switched to orange

juice and vodka. At 1:30 a.m., January 4, Jones left because he wanted to write a

letter to his fiancée.



               The defendant claimed that he and Ladd continued to drink and that the

talk turned to sex. The defendant told the officers that he admitted his homosexuality

and that Ladd revealed that he had some unexplored bisexual interests. The defendant

said that he and the victim went into the bedroom and engaged in consensual sexual

activity. The defendant contended that he was unable to obtain an erection and the


                                           5
victim penetrated him anally. The defendant stated that he then used a finger to

penetrate the victim and at some point after the first sexual encounters, shaved the

victim’s pubic hair. The two men then discussed bondage, a topic that the defendant

acknowledged had been the frequent subject of his sexual fantasies. The defendant

obtained two pairs of handcuffs belonging to his roommate, a military policeman in the

Army Reserve. He claimed that his wrists and ankles were shackled by the victim.

When the defendant still was not sufficiently aroused, he then placed the cuffs on the

victim as he lay face down on the bedroom floor.



              By this time it was after 5:00 a.m. and the two had been drinking steadily

throughout the night. Still hoping to achieve an erection, the defendant placed one of

the victim’s socks in the victim’s mouth and secured it with duct tape. He admitted to

others that he took the victim’s rugby shirt, wrapped it around his head and neck and

while seated on the victim’s back, he began to ride “like a horse” pulling straight back

on the shirt with both hands. The defendant realized at some point the victim was

struggling and choking. By the time he stopped, the victim was silent. The defendant

recalled that he took out the gag, removed the handcuffs, and dragged the unclothed

victim onto the bunk bed.



              The defendant told officers that he thought the victim had passed out from

all the alcohol. Later the defendant realized the victim was not breathing. When he

was unable to locate a pulse, the defendant became frantic and, while conceding that

he should have called authorities, he did not.    The statement is not clear as to the

exact order in which the following events occurred, but, at some point, the defendant

dressed the body in underwear and jeans, placed it in a sleeping bag, and dragged the

body to the foot of the stairs where it would rest on cold concrete. The defendant

noticed that the victim had a cut on the back of his head as he placed the body in a


                                           6
sleeping bag. The defendant told officers that he may have banged the victim’s head

against the upper rail of the bunk bed when he was trying to get him into the bunk. He

took the victim’s wallet, drove around for a while, and eventually threw the wallet off a

slab bridge into a creek.2 At 3:00 p.m., the defendant reported for work, taking the

victim’s shirt, boots, socks, and backpack with him. He threw them into the dumpster

behind the hotel. 3



              When the defendant returned home from work that night, he dragged the

body to his car and placed it in the trunk. He told officers that he noticed that there was

blood on both the sleeping bag and the floor from the cut on the victim’s head. He

recalled that he drove to a secluded place near a paint ball field and dragged the body

to a ditch. He then covered the body with the sleeping bag and returned to his

apartment to clean the blood from the stairwell floor and that on the bumper of his car.



              At trial, Dr. Charles Harlan, the medical examiner, testified that death had

been caused by ligature strangulation and that the faint pale pink marks around the

neck were consistent with having been caused by a broad piece of cloth. Dr. Harlan

found no evidence of forced penetration, no scarring or tears to the anus. The victim’s

blood alcohol level was .19 at the time of his death. It was Dr. Harlan's opinion that if

the victim’s blood alcohol level had reached .21, he could have vomited or become

comatose. He stated that the bruises on the wrists and ankles were likely made by thin

bands and that the abrasions on the victim’s fingertips were probably the result of being

scraped across some firm surface. Dr. Harlan testified that the victim had a laceration

on the back of his head that was four-fifths of an inch in length. It was his opinion that


2
      A passer-by noticed the wallet floating in the water and retrieved it. When he
was unable to locate Ladd, he turned the wallet over to the sheriff’s department.
3
       These items were never recovered as they had been taken to the landfill prior
to the discovery of the victim’s body.

                                            7
the victim’s injuries could have been the result of a struggle although he conceded that

they could have been caused either just before or just after death had occurred.



                Both Jacob Cook, the defendant’s roommate for four years, and Jones,

his long-time friend, testified for the state. Neither man had any idea that the defendant

had homosexual proclivities. Cook, who was staying in Nashville with his parents at the

time of Ladd’s death, recalled being unable to find his handcuffs and asking the

defendant to look for them. Jones corroborated the defendant’s statements about

many of the events that occurred during the evening of January 3 and until 1:30 a.m.

the next day.



                James Andrew Starnes, another friend of the defendant, testified that he

had known the defendant both at work and at school. He had often been to the

defendant’s apartment along with other co-workers and college friends. Because he

had noticed that the defendant seemed uncomfortable around women, he once asked

if he was gay. The defendant acknowledged that he was.



                All three men testified that the defendant had never made any sexual

advances toward them. The defendant and Cook slept in the same room and Starnes

had frequently spent the night in his apartment.



                The state introduced photographs showing the bruises and other injuries

to the victim, photographs of the defendant’s apartment, a picture of the contents of the

defendant’s refrigerator, and a videotape of the body as it was found.



                At the conclusion of the proof, the trial judge granted the defendant’s

motion for a judgment of acquittal on the charge of first degree premeditated murder


                                            8
and announced that he would instruct the jury only on felony murder and second

degree murder, voluntary manslaughter, reckless homicide, and criminally negligent

homicide. Just before the case was sent to the jury, the defendant attempted to plead

guilty to second-degree murder. When the state objected, the trial court refused to

accept the plea. The jury then returned a guilty verdict of felony murder committed in

the perpetration either of a rape or of an attempted rape.



                           II. Sufficiency of the Evidence

                                           A.

              A peculiar problem arises in conjunction with our consideration of the

sufficiency of the evidence. The jury found the defendant guilty of felony murder

committed in the perpetration of a rape or in the perpetration of an attempted rape.

See Tenn. Code Ann. § 39-13-202 (a) (2) (1997). The evidence established two

distinct and separate sexual episodes. In the first, the defendant digitally penetrated

the victim’s anus. During the second episode, the defendant attempted unsuccessfully

to penetrate the victim with his penis. The defendant admitted that these actions

occurred. The issue at trial was consent. At various points in the trial, the state argued

that none of the sexual activity was consensual and that the defendant at first digitally

penetrated and then either strangled the victim while attempting to rape him a second

time or killed him to prevent his telling anyone about the homosexual encounter. In the

final sentence of the closing argument, however, the state asked the jury to return a

verdict of guilty of murder during the perpetration of an attempted rape. Both the

indictment and the jury instruction use the disjunctive, as does Code section 39-13-

202(a) (2), and the jury returned a verdict finding the defendant guilty of felony murder

in the perpetration of a rape or in the attempted perpetration of a rape. The judgment

form entered by the trial court reports that the defendant either raped or attempted to

rape the victim. Confusion is apparent in the briefs submitted to this court. The


                                            9
defendant argues that there is insufficient evidence of rape while the state argues that

there is ample evidence in the record to support a conviction based on attempted rape.

The trial court neither gave an augmented unanimity instruction nor required an election

of “offenses” to ensure that all twelve jurors agreed on the same set of facts for the

underlying felony.



              Although neither party raises the issue of jury unanimity, we briefly

consider the issue under the plain error standard in order to do substantial justice. State

v. Adkisson, 899 S.W.2d 626, 636 (Tenn. Crim. App. 1984); Tenn. R. Crim. P. 52(b).

A defendant has the fundamental constitutional right under Tennessee law to a

unanimous verdict before a conviction for a criminal offense may be imposed. State

v. Shelton, 851 S.W.2d 134, 137 (Tenn. Crim. App. 1993); State v. Brown, 823 S.W.2d

576, 581 (Tenn. Crim. App. 1991); see also State v. Brown, 762 S.W.2d 135, 137

(Tenn. 1988). Protection of this right may require special precautions by the trial court

to ensure that the jury does not reach a “patchwork verdict” based on different offenses.

State v. Forbes, 918 S.W.2d 431, 445-446 (Tenn. Crim. App. 1995). When the proof

shows the commission of multiple acts with multiple results, the results being separate

criminal offenses, and there are insufficient counts in the charging instrument to

accomodate all of the offenses shown, the usual precaution to assure jury unanimity

is to require the election of offenses. Shelton, 851 S.W.2d at 137; State v. Burlison,

501 S.W.2d 801 (Tenn. 1973); State v. Clabo, 905 S.W.2d 197, 205 (Tenn. Crim. App.

1995). However, where there is only one offense resulting from multiple actions of the

defendant, see State v. Phillips, 924 S.W.2d 662 (Tenn. 1996), the proper precaution

is giving to the jury an augmented instruction relative to the unanimity requirement.

State v. James R. Lemacks, No. 01C01-9606-CC-00227, slip op. at 12-13 (Tenn. Crim.

App., Nashville, June 26, 1997), pet. for perm. app. filed (Tenn. Aug. 25, 1997); Brown,

823 S.W.2d at 581-83.


                                            10
              Although the wording of the indictment, the trial court’s instructions, and

the jury verdict raise the specter of a “patchwork verdict,” we find that no “real potential”

for a non-unanimous verdict exists.4 Because of the peculiar facts in this case, a juror

who concluded that the first sexual encounter was non-consensual would have to arrive

at the same conclusion about the second encounter.



              The indictment, the verdict, and the judgment all refer to a “rape or

attempted rape.” In its closing argument, the state contended that the killing was during

an attempted rape. Both the state and the defense referred to the underlying felony as

“rape or attempted rape” throughout the trial. For example, defense counsel claimed,

“This is not a case of rape or attempted rape.” At one point, the state interjected that

it did “not have to prove a rape occurred, either a rape or attempted rape, and that’s the

charge in the indictment.” That instructions on attempt were not provided to the jury

might have added to the confusion about which of the two underlying felonies was

chosen to support the verdict.



4
        Although the definition of felony murder invited the jury to find the defendant
guilty of felony murder in the perpetration of a rape or in the attempted perpetration
of a rape, Tenn. Code Ann. § 39-13-202(a)(2), we do not intend to suggest that this
use of alternative theories in the statute, the indictment, and the jury instructions
raises unanimity concerns. Generally, alternative theories, mental states, modes of
committing the crime, or means by which the crime was committed may be
submitted to the jury without the necessity of precautions to assure jury unanimity.
Tenn. Code Ann. § 40-18-112 (1997); see also Schad v. Arizona, 501 U.S. 637, 111
S. Ct. 2491 (1991); State v. Daniel Joe Brown, No. 02C01-9611-CC-00385, slip op.
at 16-17 (Tenn. Crim. App., Jackson, Dec. 3, 1997). In a given case, such as the
present case, the coincidence of alternative theories and the defendant’s
commission of multiple criminal acts tends to disguise the basis for the appellate
court’s detection of a unanimity problem, see VanArsdall v. State, 919 S.W.2d 626,
633 (Tenn. Crim. App. 1995); Forbes, 918 S.W.2d at 445, that basis being the
multiplicity of the acts committed by the defendant. State v. Tidwell, 922 S.W.2d
497 (Tenn. 1996); Shelton, 851 S.W.2d at 137; Burlison, 501 S.W.2d 801; Daniel
Joe Brown, slip op. at 15-16; VanArsdall, 919 S.W.2d at 633; Clabo, 905 S.W.2d at
205; Brown, 823 S.W.2d at 581-82; but see State v. James R. Lemacks, No.
01C01-9606-CC-00227, slip op. at 11-13.


                                             11
              Nonetheless, “[a]s long as the jury unanimously agreed that the second

encounter was an attempted rape, it is irrelevant that some jurors may have believed

that the first penetration also occurred without the victim's consent.” Furthermore, it is

the felony that enhanced the homicide to one of first degree murder. To reach that

conclusion, the jury had to be unanimous in rejecting the defense of consent, which

was a prerequisite to the determination that the felony was committed.



              There are very limited instances wherein a harmless error analysis is

appropriate in the resolution of election or unanimity issues. In Shelton, our supreme

court found harmless error where the victim testified in detail about one incident of

sexual abuse and testified generally about other instances. Shelton, 851 S.W.2d at

138. Our supreme court was able to determine that “the jurors must have considered

the evidence of this particular incident in convicting the defendant of aggravated rape

... [and] the Burlison error as to this conviction was harmless beyond reasonable

doubt.” Id. Also, in Clabo, this court found harmless error where the victim testified

about and was questioned about “one precise incident.”            A panel of this court

concluded that “minor innuendos about another incident were harmless.” Id. at 205.

Thus, a harmless error analysis is appropriate only where the proof overwhelmingly

established the offense for which conviction is sought and proof of the other crimes is

marginal or tangential. See also State v. Daniel Joe Brown, No. 01C01-9611-CC-

00385, slip op. at 20 (Tenn. Crim. App., Jackson, Dec. 3, 1997) (finding the election

error harmless where although the evidence “technically” may have established two

separate incidents of reckless endangerment, there was proof in “great detail” about

only “one particular instance.”)



              In Brown, Judge Tipton, speaking for this court, made the following


                                           12
comment:

              In a case where the evidence shows that the defense is,
              simply, a denial that any offense occurred and that the
              evidence in favor of the state's position is of a similar
              quality as to each offense proven and is derived from the
              same witness(es), then it is extremely difficult to imagine
              that a potential exists of the jury splitting its findings. Such
              a clear cut case would not seem to call for an augmented
              unanimity instruction, since the accrediting of              the
              witnesses as to one offense would necessarily accredit
              them as to the others.

823 S.W.2d at 584 (emphasis added).



              This type of harmless error analysis was not embraced by our supreme

court in its two most recent opinions on this issue. See State v. Walton, 958 S.W.2d

724 (Tenn. 1997), and Tidwell v. State, 922 S.W.2d 497 (Tenn. 1996). In Tidwell, the

petitioner was convicted of 14 counts each of rape, incest and contributing to the

delinquency of a minor. 922 S.W.2d at 498-99. The victim testified that sexual activity

occurred with her father “approximately once a week” over a fourteen month period.

The victim testified in general terms. She was, however, able to testify with particularity

to incidents that occurred in December 1985 and in April 1986. Id. The defendant

confessed to having had sexual intercourse with the victim and acknowledged the last

incident occurred in January 1987. Id. The defendant filed a post-conviction petition

alleging ineffective assistance of counsel for failure to seek election of offenses. Id. at

499. Reiterating the rule announced in Burlison and affirmed in Shelton, our supreme

court reversed all of the convictions except for those in which the defendant had

confessed (the January 1987 incident) and those for which the victim testified to with

particularity (the December 1985 and April 1986 incidents). In Tidwell, the state had

argued that “non-unanimity was impossible” and that “jury unanimity is attained in such

cases because, although the jury may not be able to distinguish between the various

acts, it is certainly capable of unanimously agreeing that they took place in the number

and manner described.” Id. at 501 (discussing the state’s position). Our supreme court

                                            13
rejected the state’s argument that because “non-unanimity was impossible,” a reversal

of the convictions was not required:

             [The state’s] approach, in our view, is akin to a “grab-bag”
             theory of justice. To illustrate the operation of this theory,
             in any given case the State could present proof on as many
             offenses ... as it chose. Because all such offenses will
             have been “proven,” the jury may ... reach into the
             brimming bag of offenses and pull out one for each count.
             ... [S]uch an approach is contrary to our law.

Id.



             In Walton, the supreme court found plain error meriting a reversal

because “each juror was left to choose independently the acts of abuse upon which to

base a verdict. This is the grab bag result condemned in Tidwell. We have no means

here by which we can be assured that each juror relied upon the same evidence to

convict the defendant.” Walton, 958 S.W.2d at 727-28.



             A harmless error analysis on a unanimity issue must always be based

upon the particular facts of the case. As indicated, the defendant did not deny either

of the sexual encounters and the only issue was whether there was consent, a notion

unanimously rejected by the jury. This assures the “well established right under our

state constitution to a unanimous jury verdict....” Shelton, 851 S.W.2d at 137. This

conviction is either “grab bag” or “patchwork ” as precluded by the holdings in Walton

or Shelton. The particular facts here are much less vulnerable to confusion in the

context of a felony murder.



             The circumstances in Schad v. Arizona, 501 U.S. 624, 111 S. Ct. 2491

(1991), may be analogous. The United States Supreme Court concluded that a jury

need not agree on which overt act, among several possible alternatives, was the means

by which a crime was committed. The crime here was that of felony murder, a verdict


                                          14
upon which there was unanimous consent. That not only required a rejection of the

defense claim of consent but a conclusion that, at a minimum, each of the elements of

attempted rape was established beyond a reasonable doubt. These circumstances fit

within that limited, harmless error category on the issue of jury unanimity. 5



                                          B.

              The defendant does not deny that his actions caused the victim’s death.

He contends, however, that the evidence does not demonstrate that he forced the

victim to engage in the sexual activity during which the victim was killed.



              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. Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 2789 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985);

Tenn. R. App. P. 13(e). This rule is applicable to findings of guilt based upon direct

evidence, circumstantial evidence, or a combination of direct and circumstantial

evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).


5
       In State v. Tony Scott Walker, No. 02C01-9704-CC-00147, slip op. at 6
(Tenn. Crim. App., Jackson, Dec. 3, 1997), app. pending, Feb. 4, 1998, a panel of
this court held as follows:

              In order to prove felony murder, the State need not prove
              the actual commission of the underlying felony; rather,
              the State must prove only that murder was committed in
              the perpetration of or attempt to perpetrate the
              underlying felony. See State v. Allen, No. 02C01-9307-
              CR-00166 (Tenn. Crim. App., at Jackson, Aug. 24,
              1994). Moreover, we note that attempted robbery is a
              lesser included offense of robbery. See Bandy v. State,
              575 S.W.2d 278, 281 (Tenn. 1979). Accordingly, we do
              not agree with the appellant that the trial court's
              instruction provided alternative theories from which
              members of the jury could choose in finding the appellant
              guilty of murder committed in the perpetration of a felony.

                                           15
              In determining the sufficiency of the evidence, this court should not

reweigh or reevaluate the evidence. 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. Liakas v. State, 199 Tenn. 298, 286 S.W.2d 856, 859

(1956); Farmer v. State, 574 S.W. 2d 49, 51 (Tenn. Crim. App. 1978). On the contrary,

this court is required to afford the State of Tennessee the strongest legitimate view of

the evidence contained in the record as well as all reasonable and legitimate inferences

which may be drawn from the evidence. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978).



              The appellant was tried and convicted by a jury. A guilty verdict from the

jury, approved by the trial judge, accredits the testimony of the state’s witnesses and

resolves all conflicts in favor of the state. State v. Williams, 657 S.W.2d 405, 410

(Tenn. 1983); State v. Hatchett, 560 S.W.2d 627, 639 (Tenn. 1978). Since a verdict

of guilty removes the presumption of innocence and replaces it with a presumption of

guilt, the accused has the burden in this court of demonstrating why the evidence is

insufficient, as a matter of law, to support the verdict. State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982).



              A criminal offense may be established exclusively by circumstantial

evidence.   Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973); State v. Jones, 901

S.W.2d 393, 396 (Tenn. Crim. App. 1995); State v. Lequire, 634 S.W.2d 608 (Tenn.

Crim. App. 1981). Before an accused may be convicted of a criminal offense based

upon circumstantial evidence alone, the facts and circumstances “must be so strong

and cogent as to exclude every other reasonable hypothesis save the guilt of the

defendant.” State v. Crawford, 225 Tenn. 478, 484, 470 S.W .2d 610, 613 (1971);

Jones, 901 S.W.2d at 396. In other words, “[a] web of guilt must be woven around the


                                          16
defendant from which he cannot escape and from which facts and circumstances the

jury could draw no other reasonable inference save the guilt of the defendant beyond

a reasonable doubt.” Crawford, 225 Tenn. at 484, 470 S.W.2d at 613; State v. McAfee,

737 S.W.2d 304, 305 (Tenn. Crim. App. 1987).



                If properly instructed by the trial court, the assessment of whether the

direct and circumstantial evidence excludes other likely possibilities is a jury question.

Our scope of review is more limited. The credibility of the witnesses, the weight to be

given their testimony, and the reconciliation of conflicts in the proof are matters

entrusted to the jury as triers of fact. Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim.

App. 1978).



                In our view, a jury is entitled to accept that portion of the defendant’s pre-

trial statement or testimony that it deemed credible and reject that which it deemed to

be false. State v. Gilbert, 612 S.W.2d 188, 190 (Tenn. Crim. App. 1980)(citing Batey

v. State, 527 S.W.2d 148 (Tenn. Crim. App. 1975)). “In confessions or statements of

the kind voluntarily made by the accused the jury must take the whole of this statement

or confession and weigh it as they weigh the other evidence, rejecting some part if they

desire to do so and giving credit to other parts of the statement if they have a sufficient

reason to do so under all the evidence as it is introduced.” Espitia v. State, 288 S.W.2d

731, 733 (Tenn. 1956). This quote from the Espitia opinion is consistent with the

general rule:

                It is for the jury to say what weight shall be given to the
                several parts of the statement, for they may well believe
                that part which charges the prisoner, and reject that which
                tends to exculpate him.

20 Am. Jur., Evidence, § 488 (1939 & Supp. 1966); see 29A Am. Jur. 2d, Evidence, §

1431 (1994).



                                              17
             The legislature defined first degree murder as “[a] reckless killing of

another committed in the perpetration of, or attempt to perpetrate any ... rape ....”

Tenn. Code Ann. § 39-13-202(a)(2) (Supp. 1994). Rape is defined as the “unlawful

sexual penetration of a victim by the defendant or of the defendant by the victim

accompanied by any of the following circumstances: (1) Force or coercion is used to

accomplish the act; (2) The defendant knows or has reason to know that the victim is

mentally defective, mentally incapacitated or physically helpless....” Tenn. Code Ann.

§ 39-13-503 (emphasis added) . As no specific mens rea is required by the rape

statute, “intent, knowledge or recklessness suffices to establish the culpable mental

state.” Tenn. Code Ann. § 39-11-301(c) (emphasis added) .



             To convict an accused of criminal attempt, the state must prove beyond

a reasonable doubt that an accused who acted with the kind of culpability otherwise

required for the offense

             (1)    [i]ntentionally engages in action or causes a
                    result that would constitute an offense if the
                    circumstances surrounding the conduct were
                    as the person believes them to be;

             (2)    [a]cts with intent to cause a result that is an
                    element of the offense, and believes the
                    conduct will cause the result without further
                    conduct on the person’s part; or

             (3)    [a]cts with intent to complete a course of
                    action or cause a result that would constitute
                    the offense, under the circumstances
                    surrounding the conduct as the person
                    believes them to be, and the conduct
                    constitutes a substantial step toward the
                    commission of the offense.

Tenn. Code Ann. § 39-12-101(a)(1),(2),(3) (1991).



             To find the defendant guilty of felony murder in this case, the jury had to

find beyond a reasonable doubt that the defendant, acting with the intent to commit a


                                          18
forcible rape, intentionally engaged in actions that would result in a rape, and that

during these acts, the defendant recklessly killed the victim. If the victim consented to

the sexual activity, no attempt to rape occurred, and the defendant cannot be convicted

of felony murder.



              The trial court instructed the jury that the essential elements for felony

murder were as follows:

              (1) The defendant unlawfully killed the victim, and
              (2) That the killing was committed in the perpetration of or
              the attempted perpetration of an alleged rape; that is, that
              the killing was closely connected to the alleged rape or
              attempted rape and was not a distinct or independent
              event, and
              (3) That the Defendant intended to commit the alleged rape
              or attempted rape, and
              (4) That the killing was the result of a reckless act by the
              Defendant.

While no instruction was provided on the statutory definition of attempt, the trial court

did provide the following charge on circumstantial evidence:

              Circumstantial evidence consists of proof of collateral facts
              and circumstances which do not directly prove the fact in
              issue, but from which that fact may be logically inferred.
              When the evidence is made up entirely of circumstantial
              evidence, then before you would be justified in finding the
              Defendant guilty, you must find that all the essential facts
              are consistent with the hypothesis of guilt, as that is to be
              compared with all the facts proven.

              The facts must exclude every other reasonable theory or
              hypothesis except that of guilt, and the facts must establish
              such a certainty of guilt of the Defendant as to convince the
              mind beyond a reasonable doubt that the Defendant is the
              one who committed the offense....



              In the light most favorable to the state, the pretrial statement establishes

that the victim penetrated the defendant with his penis and the defendant digitally

penetrated the victim. According to the defendant, the victim then passed out. When

the victim regained consciousness, the defendant handcuffed the victim's arms behind


                                           19
his back and also handcuffed the victim's ankles. At some point, he shaved his pubic

hair. The defendant stuffed a sock into the mouth of the victim, who was highly

intoxicated and lying face down on the floor, and then placed duct tape around the

victim's head and mouth as he attempted to talk. The defendant told officers he then

mounted the victim's back, attempting to achieve an erection, and then wrapped a

T-shirt around the victim's neck and pulled. The defendant did not respond to the

victim's struggles or his choking and did not release his hold until the victim lay

motionless.



              While a medical examination of the victim failed to indicate trauma to the

genital or rectal areas, the defendant admitted that he shaved the unconscious victim’s

pubic area without consent. The defendant, some fifteen years older than the victim,

claimed that the sexual penetration and the bondage were consensual but

acknowledged that the victim, who had no known history of homosexuality, was very

drunk. A medical examination established the victim’s blood alcohol level to be .19 at

the time of his death. The proof suggests that the alcohol level could have been higher

prior to his death; the defendant's concession that the victim had lost consciousness

before the second sexual encounter tends to corroborate that.



              When he discovered that the victim was not breathing, the defendant

disposed of the victim’s wallet in a nearby river and discarded his shirt, boots, and

backpack into the dumpster at his workplace. On the following evening, the defendant

drug the body to his car, placed it in the trunk, and drove to a remote location before

disposing of the body. The defendant cleaned any traces of the incident and, when first

questioned by police, the defendant denied any knowledge of the victim’s death or

whereabouts. A second statement to police was equally untruthful.




                                          20
              Initially, the evidence establishes at least a reckless killing.          By

continuously pulling on a T-shirt wrapped around the neck of the struggling, choking

victim, the defendant caused his death by consciously disregarding a substantial and

unjustifiable risk. The defendant acknowledged his failure to release his hold until the

victim ceased to move. The jury had a rational basis for determining the presence of

an adequate mens rea.



              Secondly, even though a medical examination was unsuccessful in

confirming any sexual penetration of the victim, the defendant’s statement, if believed,

established an intentional penetration or attempted penetration of the victim that

eventually resulted in the strangulation of the victim. The jury is entitled to utilize its

common sense in evaluating the entirety of the evidence. In our view, the jury had a

rational basis for determining that force or coercion was used or that the victim,

because of his level of intoxication, was too “mentally incapacitated or physically

helpless” to offer resistance. Tenn. Code Ann. § 39-13-503. Despite the vigorous

claims on the part of the defendant that the sexual encounters were completely

consensual, many of the surrounding circumstances suggest otherwise as to the

second encounter. Alcohol overuse had resulted in the loss of consciousness of the

victim at one point. The jury could have reached a verdict of guilt for a reckless killing

during the perpetration of a rape or attempted rape.



              Thirdly, the jury could have reasonably concluded from the evidence that

the defendant bound and gagged an unconscious victim, mounted the victim, and

pulled the T-shirt which was wrapped around his neck until he died. The jury could infer

that restricting the victim's freedom of movement, shaving pubic hair without permission

and subduing possible cries for help were substantial steps towards penetration of the

victim. It might properly determine that the restraint on the victim implied force or


                                            21
coercion. See State v. McKnight, 900 S.W.2d 36 (Tenn. Crim. App. 1994) (force could

be found from the defendant holding the victim down). There were unexplained injuries

to the fingertips of the victim. The jury could also have reasonably concluded from the

medical evidence that the victim was either “mentally incapacitated or physically

helpless.” It could have rationally disregarded the claim that the victim consented to the

encounter and at the same time accredited other portions of the defendant's statement.



              The concealment of the body and disposal of the body, the wallet and the

other personal items of the victim were all corroborative of guilt, tending to refute the

claim of consent. Ashcraft v. Tennessee, 327 U.S. 274, 278, 66 S. Ct. 544, 546

(1946)(willful concealment of material facts relating to crime is considered evidence of

guilt). So was lying to the police. “[S]tatements denying guilt followed by a confession

... may carry the strongest implications of a guilty knowledge.” Id. The evidence, when

considered in the light most favorable to the state, is sufficient to support a felony

murder verdict. A rational trier of fact, in the opinion of the majority, could have found

the essential elements of the crime beyond a reasonable doubt.



                 III. Issues Relating to the Defendant’s Statements

                             A. Motion to Suppress

              The defendant contends that both his final oral and written statements

were given in violation of his rights under the United States and Tennessee

constitutions. The state, on the other hand, argues that the defendant knowingly and

voluntarily waived his Miranda rights and that he never invoked his right to counsel as

a protection against self-incrimination. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.

1602 (1966). After a careful review of the record and the applicable law, we find the

actions of the authorities in this case did not violate the defendant’s constitutional rights

as guaranteed under the Fifth Amendment of the United States Constitution and Article


                                             22
1, Section 9 of the Tennessee Constitution.6



              Evidence presented at the hearing on the motion to suppress indicates

that at approximately 11:30 p.m on the night of January 9, 1995, the defendant agreed

to accompany two police officers to the station for further questioning in regard to the

death of Joey Ladd.        Although the equipment for videotaping the interview

malfunctioned, a tape recorder preserved the audio portion. The defendant read and

signed a standard form waiving his constitutional rights. About five minutes into the

interview and before he made any incriminating statements, the defendant said, “I’m

sorry, I’m just wondering if I should have a lawyer.”    This statement on the tape is

followed by a long blast of static that lasts for several seconds. When questioned about

what transpired during this time, Detective Warf conceded that he did not recall all that

he had said. However, he knew that he had asked the defendant, “Do you need an

attorney to help you tell the truth?” and that the defendant had replied, “No.” The

defendant, who testified at the suppression hearing, did not contradict Warf’s

testimony. He recalled nothing of what was said except the single question to which

the detective testified. The record indicates that the interview began sometime around

midnight and that the defendant began his written statement at approximately 3:00 a.m.

During the interview, the defendant refused the first offer of something to drink but



6
       We note that the defendant’s Sixth Amendment right to counsel is not
implicated in this case. Davis v. United States, 512 U.S. 452, ---, 114 S. Ct. 2350,
2354 (1994). A defendant's Sixth Amendment right to counsel attaches when
“formal adversary judicial proceedings ” begin. Moore v. Illinois, 434 U.S. 220, 266
(1977); Kirby v. Illinois, 406 U.S. 682, 688 (1972). The Court has not, however,
specified the precise point at which those proceedings begin. Generally, a mere
arrest will not trigger the Sixth Amendment right to counsel at a pretrial
confrontation. Moore, 406 U.S. at 228. In Tennessee, the initiation of adversary
proceedings begins with either a formal charge such as an arrest warrant, at the
time of the preliminary hearing if there was no formal warrant, or by indictment or
presentment. State v. Bush, 942 S.W.2d 489 (Tenn. 1997) (citing Mitchell v. State,
593 S.W. 2d 280, 286 (Tenn.), cert. denied, 449 U.S. 845 (1980)).



                                           23
accepted a second offer at the conclusion. The defendant did not ask to leave, and,

other than the one question concerning an attorney, the record contains no indication

that the defendant expressed any further desire to talk to an attorney or that he was

coerced in any way.



              At the conclusion of the suppression hearing, the trial court found that the

defendant made an equivocal request for an attorney, that the detectives made no

attempt to clarify the intent of the defendant’s statement, and that the defendant

proceeded to give his statement without duress or intimidation. Based on the totality

of the circumstances, the trial court concluded that the defendant gave his statement

knowingly and voluntarily after a valid waiver of his constitutional rights.



              The standard of review applicable to suppression issues is well

established. When the trial court makes a finding of facts at the conclusion of a

suppression hearing, the facts are accorded the weight of a jury verdict. State v.

Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994). These facts are binding upon this

court unless the evidence in the record preponderates against the findings of the trial

court. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); see also Stephenson, 878

S.W.2d at 544.

              Questions of credibility of witnesses, the weight and value
              of the evidence and resolution of conflicts in evidence are
              matters entrusted to the trial judge as the trier of fact. The
              party prevailing in the trial court is entitled to the strongest
              legitimate view of the evidence adduced at the suppression
              hearing as well as all reasonable and legitimate inferences
              that may be drawn from the evidence. So long as the
              greater weight of the evidence supports the trial court’s
              findings, those findings shall be upheld.

Odom, 928 S.W.2d at 23. The only question we must address is whether the police

officers’ failure to clarify the defendant’s ambiguous request violated his right to the

assistance of counsel, as recognized by Miranda and Edwards v. Arizona, 451 U.S.


                                            24
477, 101 S. Ct. 1880 (1981).



              It is undisputed that when a defendant clearly requests an attorney during

custodial interrogation, further questioning by the police in the absence of an attorney

is constitutionally prohibited. Edwards, 451 U.S. at 485, 101 S. Ct. at 1885. Our

supreme court has previously held that, “when a suspect makes an ambiguous or

equivocal request for counsel, further questions by officers must be limited to clarifying

the suspect’s desire for an attorney.” Stephenson, 878 S.W.2d at 548. However,

several months after Stephenson was decided, the United States Supreme Court

addressed the issue of ambiguous requests for counsel. The Court stated that

              Of course, when a suspect makes an ambiguous or
              equivocal statement it will often be good police practice for
              the interviewing officers to clarify whether or not he actually
              wants an attorney . . . . but we decline to adopt a rule
              requiring officers to ask clarifying questions. If the
              suspect’s statement is not an unambiguous or unequivocal
              request for counsel, the officers have no obligation to stop
              questioning him.

Davis v. United States, 512 U.S. 452, ____, 114 S. Ct. 2350, 2356 (1994) (emphasis

added). The declared effect of Davis is that “[u]nless the suspect actually requests an

attorney, questioning may continue.” Davis, 512 U.S. at ____, 114 S. Ct. at 2357.



              In State v. Huddleston, 924 S.W.2d 666 (Tenn. 1996), our supreme court

revisited the issue. In Huddleston, the defendant claimed that his refusal to sign the

waiver of rights form constituted an invocation of his Fifth Amendment right to counsel.

Id. at 669. The Huddleston court cited Davis for the proposition that when a suspect

does not make a clear and unambiguous request for an attorney, the police need not

terminate the interrogation. Huddleston, 924 S.W.2d at 669-670. The Tennessee

Supreme Court stated as follows:

              In Miranda, the Supreme Court did not adopt a rigid
              formula for invocation of the Fifth Amendment right to
              counsel. Recently in Davis v. United States, 512 U.S. 452,

                                            25
                114 S. Ct. 2350, 129 L.Ed.2d 362 (1994), however, the
                Court stated that “[i]nvocation of the Miranda right to
                counsel requires, at a minimum, some statement that can
                be construed to be an expression of a desire for the
                assistance of an attorney.” Id. ___ U.S. at ___, 114 S. Ct.
                at 2355. (internal quotations omitted). “Although a suspect
                need not speak with the discrimination of an Oxford don”
                the Court emphasized that a suspect “must articulate his
                desire to have counsel present sufficiently clearly that a
                reasonable officer would understand the statement to be a
                request for an attorney.”

Huddleston, 924 S.W.2d at 669-70 (emphasis added). Therefore, the court concluded

that if a defendant knowingly and voluntarily waives his Miranda rights, the police may

continue questioning the suspect until and unless the suspect clearly requests an

attorney. Id.



                We note that Huddleston was decided under the Fifth Amendment to the

United States Constitution. The opinion does not mention Article 1, Section 9 of the

Tennessee Constitution. W e are also aware that our supreme court has held that

Article I, Section 9 of the Tennessee Constitution provides similar but broader

protection for an accused than does the Fifth Amendment. See State v. Crump, 834

S.W.2d 265, 268 (Tenn.), cert. denied, 506 U.S. 905, 113 S. Ct. 298 (1992); see also

State v. Farmer, 927 S.W.2d 582, 593-594 (Tenn. Crim. App. 1996). 7            Crump,

however, was a case in which the defendant had invoked his right to be silent rather

than the right to counsel and was decided before the United States Supreme Court’s

decision in Davis.




7
        State v. Farmer was decided prior to the supreme court’s decision in
Huddleston. The opinion does not mention the United States Supreme Court’s
decision in Davis. Farmer, 927 S.W.2d at 593-594. The court cited Stephenson for
the proposition that when a suspect makes an equivocal request for counsel, the
officers must limit future questions to those needed to clarify the request. However,
the court remanded the case to the trial court for determination of whether the
defendant made a request for counsel, equivocal or not. Farmer, 927 S.W.2d at
594.

                                            26
              The right to counsel under the Fifth Amendment as established by

Miranda is a procedural safeguard and, unlike the privilege against self-incrimination

itself, is not independently a constitutional right. Michigan v. Tucker, 417 U.S. 433,

443-444, 94 S. Ct. 2357, 2363, 2364 (1974). We cannot say that our supreme court’s

statement that the Tennessee Constitution is more protective of the privilege against

self-incrimination than the Fifth Amendment is applicable in the context of a procedural

safeguard.



              In State v. Jack Jay North, Jr., No. 02C01-9512-CC-00369 (Tenn. Crim.

App., Nashville, Dec. 9, 1996), perm. app. denied (Tenn. 1997), the proof indicated that

the defendant asked the detective if he needed an attorney. Jack Jay North, Jr., slip

op. at 31. The court considered the request to be equivocal and, based on the

holdings in Huddleston and Davis, held, under the state and federal constitutions, that

“because the appellant knowingly and voluntarily waived his Miranda rights, [the police]

could continue questioning the appellant ‘until and unless [the appellant] clearly

request[ed] an attorney.’” State v. Jack Jay North,Jr., slip op. at 32. The Tennessee

Supreme Court denied North’s application for permission to appeal.8


8
        In State v. John M. Ake, No. 01C01-9603-CC-00094 (Tenn. Crim. App.,
Nashville, June 6, 1997), app. denied (Tenn. 1998), the lead opinion written by
Judge Joe G. Riley followed the lead of North and concluded that our supreme court
approved the holding of Davis in Huddleston and that the court gave no indication
that Article I, Section 9 of the Tennessee Constitution would require a different
result. John M. Ake, slip op. at 6. Therefore, Judge Riley found that the detectives
had no obligation to clarify the defendant’s ambiguous request and that neither his
federal nor state constitutional rights had been violated. Judge Thomas T. Woodall
concurred in the results but stated that the defendant’s request was sufficiently clear
that a reasonable police officer should have understood his statement to be a
request for an attorney. Id., slip op. at 4 (Woodall, J., concurring). Judge Joseph M.
Tipton wrote separately to dissent in the conclusion drawn in the lead opinion. He
did not agree that the defendant’s remarks were an unequivocal request for counsel
but argued that Stephenson remains binding authority with respect to Article I,
Section 9 of the Tennessee Constitution. John M. Ake, slip op. at 7 (Tipton, J.,
dissenting). However, all three panel members agreed that admission of the
defendant’s confession was, at most, harmless beyond a reasonable doubt. The
supreme court denied Ake’s petition for permission to appeal.


                                          27
              Although our supreme court did not tacitly overrule the Stephenson rule

requiring the police to clarify an equivocal request for attorney, it adopted the Davis rule

in the context of Huddleston. Moreover, even though the court agreed that “courts

should give a broad interpretation to a suspect’s request for counsel,” this statement

refers to the fact determination of whether a given request is equivocal and not to any

broader interpretation of a defendant’s rights to counsel under Article 1, Section 9 of

the Tennessee constitution than those that flow from the Fifth Amendment.9 Nothing

in either Huddleston or Stephenson implies that the Tennessee constitution provides

greater protection of a defendant’s right to counsel during questioning than does the

Fifth Amendment. Crump, as noted above, does not involve the right to counsel. The

supreme court declined to review the decision in North in which this court concluded

that Davis applied to the Tennessee Constitution as well the Fifth Amendment. Our

intermediate court is bound by the decisions of our supreme court.



              Therefore, we examine the trial court’s denial of the defendant’s motion

to suppress his statements according to the rule adopted in Huddleston. The trial judge

found that the defendant’s request was ambiguous and that the police officers who

were interrogating the defendant did not attempt to clarify the statement. The record

does not preponderate against these findings. In fact, the defendant apparently


9
       The entire statement reads:

              Because we agree that courts should give a broad
              interpretation to a suspect’s request for counsel, we
              conclude that the defendant’s question herein constituted
              an equivocal invocation of the right to counsel that limited
              further interrogation to questions clarifying his desire for
              an attorney. Agent Davenport clarified the defendant’s
              ambiguous statement by informing him that an attorney
              was immediately available if he wished to consult with
              him. . . As a result there was no violation of either the
              defendant’s federal or state constitutional right to
              counsel.

State v. Stephenson, 878 S.W.2d at 548.

                                            28
decided that he did not want an attorney because he proceeded to talk to the officers

for the next several hours without again requesting counsel.10 The trial judge also

found that the defendant knowingly and voluntarily waived his constitutional rights and

that the police did not coerce or intimidate him. The record supports these conclusions

as well.



              It would certainly be better practice for the interviewing officers to clarify

whether or not a defendant actually wants an attorney. Clarifying questions help

protect the rights of the suspect and will minimize the chances that a subsequent

judicial determination will suppress the confession. See Davis, 512 U.S. at ____, 114

S. Ct. at 2356. The static on the tape following the defendant’s comment is troubling;

however, both the detective and the defendant gave the same account as to what

followed, and the taped interview confirms the trial court’s finding that the defendant

was willing and even eager to unburden himself of the weighty guilt associated with the

events that led up to this homicide. The defendant, a well-educated, articulate adult,

never mentioned an attorney again during the four-hour interview. The defendant

knowingly and voluntarily waived his Miranda rights, and, absent a clear request for an

attorney, under Huddleston, the police were not required to clarify his statement nor to

cease questioning. The trial court did not err in denying the defendant’s motion to

suppress his statements.



                  B. Failure to Give Jury a Curative Instruction

              The detectives who questioned the defendant frequently asked compound

questions and interjected their own personal comments into their questions. For



10
       At the suppression hearing, the defendant testified that he thought his
statement had offended Detective Cunningham, but he does not say that he was
intimidated, coerced, or even cajoled into giving his statement without an attorney
present.

                                            29
example, at one point, the following colloquy took place:

              Detective Gage:        Now, I am just,
                                     I’m just totally
                                     wanting to know
                                     what happened
                                     on these fingers.
                                     You put him,
                                     wait, well we’ll
                                     get ba ck to
                                     those. When did
                                     you realize that
                                     he was dead?
                                     He’s kicking, he’s
                                     squirming, he’s
                                     fighting, he’s
                                     grunting and all
                                     of a sudden it
                                     stops. Now it’s
                                     going to get
                                     slower. It’s going
                                     to take less than
                                     five seconds for
                                     him to die or for
                                     him to pass out
                                     where he’s not
                                     struggling
                                     anymore. Ten,
                                     fifteen tops.

              Young:                 Yeah.

Before the taped interview was played for the jury, defense counsel requested that the

trial court instruct the jury that the comments and statements made by the detectives

during the interrogation to which the defendant made no direct response were not to

be taken as evidence. The prosecutor objected to the defense request because when

a witness responds “yes” to a question, the witness has adopted the statement. The

trial court did not give the instruction. On appeal, the defendant contends that the lack

of a curative instruction denied him a fair trial.



              The defendant correctly points out that the detective’s interviewing

techniques often failed to elicit clear responses. There were frequent interjections of

conclusory statements. On the other hand, courts frequently admit into evidence tape


                                             30
recordings of telephone calls, drug transactions, and interrogations involving not just

the defendant but other parties as well. Tennessee law does not require that a trial

court advise the jury to ignore all parts of a taped conversation other than the

defendant’s statements. The jury is to sort out the context of the recorded conversation

and judge the weight of what it hears. See State v. Beasley, 699 S.W.2d 565, 569

(Tenn. Crim. App. 1985); State v. Harris, 637 S.W.2d 896, 898 (Tenn. Crim. App.

1982); State v. Lee, 618 S.W.2d 320, 322-323 (Tenn. Crim. App. 1981); State v. Smith,

612 S.W.2d 493, 498 (Tenn. Crim. App. 1980).



              In this case, however, the trial court’s disinclination to redact the police

officers’ conclusory statements from the defendant’s confession or, in lieu of a

redaction, its failure to provide the jury with a curative instruction, was erroneous. In

State v. Jones, 598 S.W.2d 209, 223 (Tenn. 1980), abrogated by State v. Shropshire,

874 S.W.2d 634 (Tenn. Crim. App. 1993), superseded by statute State v. Latham, 910

S.W.2d 892 (Tenn. Crim. App. 1995), a taped conversation between a special agent

and the defendant was admitted at trial; the defendant’s statements were deemed

admissions and thus exceptions to the hearsay rule. The trial court classified as non-

hearsay the agent’s statements because they were not admitted for their truth. In fact,

the trial court found that the agent’s statements were actually false and no error

resulted from their admission. The supreme court cautioned that jury instructions and

redaction were necessary to avoid undue prejudice:

              Applying these rules to the instant case, we hold that the
              tape recordings and compared transcripts are admissible
              and may be presented in evidence by any witness who was
              present during their recording or who monitored the
              conversations, if he was so situated and circumstanced
              that he was in a position to identify the declarant with
              certainty, and provided his testimony in whole, or in part,
              comports with other rules of evidence.

                     In all such cases the jury should be instructed that
              only the statements, admissions and declarations of the
              declarant may be considered in the question of guilt or

                                           31
             innocence. Further any statement made by a nontestifying
             party to the conversation which tends to be prejudicial to
             the defendant must be redacted, unless admissible under
             some other rule of law.

Jones, 598 S.W.2d at 223 (emphasis added).



             In State v. Bowling, 649 S.W.2d 281 (Tenn. Crim. App. 1983), a panel of

our court held that admission of transcripts of the defendant’s confession that also

contained hearsay by police officers alleging that the defendant had committed other

acts of child abuse was erroneous. Id. at 283. In Bowling, this court ruled that the

“irrelevant and prejudicial comments and questions should have been redacted

because they were denied by [the defendant], not included in the indictment, and not

established in any manner by the State’s evidence.” Id. This court found the error to

be harmless because of the defendant's confession and the other proof presented by

the state:

             We do not condone in any fashion the manner in which the
             defendant’s confession was admitted into evidence. If the
             case against him had not been made out so positively by
             his own confession and the testimony of other witnesses,
             we think admission of his unredacted interview with the
             police officer, riddled with hearsay and innuendos ... would
             warrant reversal.

Id. at 284 (emphasis added).



             By the use of the standard established in Jones, a curative instruction

would have been warranted in this case. In our view, the following types of comments

made by police officers during the interview of the defendant should have been

redacted:

             Officer 1: The second incident his fingers.           He’s
             handcuffed. I want you to look at that finger right there.
             That’s going to be his right hand. All four fingers of that
             hand is ground off. Okay. Or rubbed off. This didn't
             happen on the pavement. This didn’t happen on the
             carpet. Where did this happen [be]cause you had to clean
             this off. This happened in your apartment? He was

                                         32
grabbing the chink in between the walls?
Defendant: No he couldn’t have. We were in the middle of
the floor.
Officer 1: Where did this happen on his fingers? Where
did you clean this mess up at in your apartment? He did do
this on carpet. This is not the best photo that we’ve got but
this stuff is gone. [Officer 2], this isn’t, this isn’t, this isn’t
worn rub on a carpet.
Officer 2: Ends of his finger is gone.
Officer 1: This is meats missing.
Defendant: I don’t know, I really don’t. I mean, I didn’t, I
didn’t clean anything up upstairs, I didn’t....
                              ***
Officer 1: Was there any oral sex?
Defendant: [no]
Officer 1: There was no oral sex between the two of you at
all?
Defendant: [no]
Officer 1: There was just an[a]l sex. Are you not into the
oral sex?
Defendant: No, no, no....
                              ***
Officer 1: Now, I, I am just totally wanting to know what
happened on these fingers. You put him, wait, we'll get
back to those. When did you realize that he was dead.
He’s kicking, he’s squirming, he’s fighting, he’s grunting
and all of a sudden it stops. Now it’s going to get slower.
It’s gonna take less than five seconds for him to die or for
him to pass out where he’s not struggling anymore. Ten,
fifteen tops.
Defendant: Yeah.
                              ***
Officer 1: And you, now did you roll him down onto the
sleeping bag or did you then get the sleeping bag. Now,
I’m sure in between there, there’s things like, oh, my God
what am I going to do and there’s some panic times and I
know you’re not going to say well, five minutes later I put
the sleeping bag, got the sleeping bag and put him in it, but
so we won’t, we won’t worry about what you were thinking
about in between.
                              ***
Officer 1: You got him out of the upstairs cause you didn’t
want to look at him? Tired of him lying around.
Defendant: No.
Officer 1: Not making fun now, I’m trying to lighten this up
a little bit, we’ve had a rough night.
                              ***
Officer 1: You wanted to, you wanted to tell somebody
maybe not Warren but you wanted to get this off your chest
but you didn’t have time. You were still in a panic about
what you were going to do with him. You got off work at
11:00 P.M.? Where did you go?
Defendant: I went back home.
                              ***

                                33
                Officer 1: W hat did you do for Joey anything?
                Defendant: What did I do for him?
                Officer 1: Uh-hum. Okay, you’ve just put Joey down this
                embankment and you’ve covered him up with the sleeping
                bag. Did you just jump back up that hill and run back to the
                car and leave? Did you say a prayer?
                Defendant: I [pause] cried from all of this.

These types of comments impermissibly suggest directly to the jury the conclusions

made by the investigating officers who did not testify at trial. There is neither a

confirmation nor a denial by the defendant to many of the suggestive questions. The

compound nature of the officers’ statements make the responses particularly difficult

to interpret. The better practice would have been to redact the statements, editing

the accusations of the police while, at the same time, making a special effort to

preserve the nature and content of the defendant’s statements, admissions, and

declarations.



                Some of the factual conclusions reached by the officers, however, were

in some form or fashion supported by the defendant’s verbal and written statements or

circumstances otherwise made known to the jury. The only exceptions are the officer's

comments about the injuries to the victim’s fingertips, the precise cause of which state

experts could not determine, and the length of time it took for the victim to die. In the

context of the entire trial, this error, standing alone, would most likely qualify as

harmless. See Tenn. R. App. P. 36(b).



                While the pretrial statements of the defendant were critical, much of the

circumstantial evidence tended to discredit the veracity of the defendant and tended to

corroborate the state's theory of guilt. The circumstances of the killing presented a

difficult proposition for a rational, dispassionate resolution of the issues. Neither the

accusatory remarks of the officers nor the implications of condemnation fairly

substituted for actual statements of the accused.


                                            34
         C. Allowing the Tape-recorded Statement to go to Jury Room

              The defendant contends that, because Rule 30.01 of the Tennessee

Rules of Criminal Procedure provides that depositions may not be sent to the jury room

during deliberation, the trial court erred by sending the audio-tape of his statement

along with other trial exhibits. He argues that the tape-recorded statement is “just like

a deposition” and that he was unduly prejudiced by its submission to the jury.



              The rule states that “[u]pon retiring to consider its verdict, the jury shall

take to the jury room all exhibits and writings which have been received in evidence,

except depositions, for their examination during deliberations, unless the Court, for

good cause, determines that an exhibit should not be taken to the jury room.” Tenn.

R. Crim. P. 30.1 (emphasis added). The accompanying comments state that this rule

is mandatory in criminal cases and that a judge must send with the jury all exhibits

unless the judge determines that there is good cause for excluding them. Tenn. R.

Crim. P. 30, advisory commission comments. Therefore, absent a finding of good

cause, the rule clearly contemplates that a trial court will send all exhibits and writings

except depositions to the jury room during deliberations.



              We are not convinced by the defendant’s contention that a tape-recorded

statement is the equivalent of a deposition for the purposes of this rule. Depositions

are transcripts of sworn testimony given with the assistance of counsel and in the

presence of a court reporter. When a deposition is entered into evidence, it becomes

part of the body of testimony as though it had been presented at trial. If the deposition

were taken to the jury room during deliberations, a danger exists that the jury might

place too great an emphasis on this one portion of the testimony. A tape-recorded

statement is more akin to a videotape of a crime scene. The rule requires its presence


                                            35
in the jury room during deliberation unless the trial judge has good cause for excluding

it.



              Nonetheless, the defendant has, for the reasons stated herein,

demonstrated that good cause exists. The advisory committee proposed three reasons

under Rule 30.1 which might qualify as good grounds for the exclusion of an exhibit:

              1.     The exhibit may endanger the health and
                     safety of the jurors; 11

              2.     The exhibit may be subjected to improper
                     use by the jury; or

              3.     A party may be unduly prejudiced by the
                     exhibit’s submission.

Id. As indicated, the unredacted audiotape contained several accusations by the

police. The compound nature of many of the questions precluded unambiguous

responses. The tape qualifies as prejudicial. Absent any other error in the record, the

error may have been harmless.



                                IV. Expert Testimony

              Dr. Charles Harlan, the state medical examiner, conducted the autopsy.

The defendant complains that much of the doctor’s testimony was based on

speculation and conjecture and should have been excluded because the doctor failed

to give his opinion based upon a reasonable degree of medical certainty or probability.

The defendant also contends that the trial court erred in allowing Dr. Harlan to respond

to a hypothetical question proposed by the prosecutor and by refusing to allow his

answer to a hypothetical proposed by defense counsel. We first consider the general

standards applicable to the admission of expert testimony in Tennessee.




11
     We note that the trial judge declined to send the blood-stained sleeping bag
because it might be a hazard to the jurors’ health.

                                          36
                       A. Admissibility of Expert Testimony

              The specific rules of evidence that govern the issue of admissibility of

scientific proof in Tennessee are Tennessee Rules of Evidence 702 and 703 that state:

              If scientific, technical, or other specialized knowledge will
              substantially assist the trier of fact to understand the
              evidence or to determine a fact in issue, a witness qualified
              as an expert by knowledge, skill, experience, training, or
              education may testify in the form of an opinion or
              otherwise.

Tenn. R. Evid. 702.

              The facts or data in the particular case upon which an
              expert bases an opinion or inference may be those
              perceived by or made known to the expert at or before the
              hearing. If a type reasonably relied upon by experts in the
              particular field in forming opinions or inferences upon the
              subject, the facts or data need not be admissible in
              evidence. The court shall disallow testimony in the form of
              an opinion or inference if the underlying facts or data
              indicate lack of trustworthiness.

Tenn. R. Evid. 703.



              The Tennessee Supreme Court has recently considered the standard for

determining the admissibility of scientific evidence in two recent cases. See State v.

Shuck, 953 S.W.2d 662 (Tenn. 1997), and McDaniel v. CSX Transportation, Inc., 955

S.W.2d 257 (Tenn. 1997). Although the McDaniel court was considering whether

Tennessee would adhere to the admissibility standards of Frye v. United States, 293

F.1013 (D.C. Cir. 1923) or adopt the holding in Daubert v. Merrell Dow

Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 1286 (1993), the analysis in McDaniel is of

assistance in resolving the issues before us.



              In McDaniel, the supreme court concluded that to determine “the standard

of admissibility of scientific evidence requires an analysis of the unique language found

in Rules 702 and 703 of the Tennessee Rules of Evidence.” McDaniel, 955 S.W.2d at

264. Rule 702, the court noted, requires that the evidence “substantially assist the trier

                                           37
of fact,” while the federal rule requires only that the evidence “assist the trier of fact.”

Id. Therefore, the court concluded that the probative force of expert testimony must

be stronger before it is admitted in a Tennessee court than under the federal rules. Id.

Similarly, according to Rule 703, a Tennessee court “‘shall disallow testimony in the

form of an opinion or inference if the underlying facts or data indicate a lack of

trustworthiness.’” Id. (quoting Tenn. R. Evid. 703). Even if expert testimony tends to

provide substantial assistance to the jury, the testimony is admissible only if it is based

upon reliable facts or data. Shuck, 953 S.W.2d at 668.



              Generally, the admission of expert testimony is largely entrusted to the

sound discretion of the trial court. State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993).

The trial court’s decision may be overturned on appeal upon a showing that the trial

court abused its discretion. Id. Our supreme court has concluded that “an appellate

court should find an abuse of discretion when it appears that a trial court applied an

incorrect legal standard or reached a decision which is against logic or reasoning that

caused an injustice to the party complaining.” Shuck, 953 S.W.2d at 669 (citing Ballard

v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)).



              With these standards in mind, we have addressed the defendant’s issues

separately below.



                           B. Speculation and Conjecture

              The defendant argues that much of the medical examiner’s testimony was

inadmissible because he was not required to state his opinion based upon “a

reasonable degree of medical certainty.”         Specifically the defendant objects to the

following:

              Q:      Were there any other marks, doctor, that in
                      your opinion could have been caused by

                                            38
                      struggle?

              Q:      Will that type of mark be consistent with a
                      struggle against that bond?

              Q:      Sometime prior to death, could that blood
                      alcohol level have been higher?

              Q:      Based on the autopsy results, the blood
                      alcohol level, would it be possible for Mr.
                      Ladd to have been rendered unconscious
                      from alcohol sometime prior to his death?

We find that the trial court did not abuse its discretion in admitting responses to the first

two questions. Responses to the remaining questions should have been excluded.



              In both criminal and civil cases, medical doctors have traditionally been

asked to give an opinion as to the cause of an illness or injury based on “a reasonable

degree of medical certainty.”       However, the test adopted in Lindsey v. Miami

Development Corp., 689 S.W.2d 856 (Tenn. 1985), is more properly stated as requiring

proof “that it is more likely than not” that the actions caused the results. 689 S.W.2d

at 861. In Kilpatrick v. Bryant, 868 S.W.2d 594 (Tenn. 1993), the Tennessee Supreme

Court specifically affirmed the holding of Lindsey which requires a reasonable basis for

a conclusion concerning causation. Kilpatrick v. Bryant, 868 S.W.2d at 602. Causation

in fact, the court stated, is a matter of probability, not possibility. Id. (citing White v.

Methodist Hospital South, 844 S.W.2d 642, 648-49 (Tenn. App. 1992)).12 Expert

testimony that a certain thing is possible is no evidence at all, and speculation by an

expert is no more valid than the jury’s own speculation as to what is or what is not



12
       Both Lindsey and Kilpatrick were medical malpractice cases. However, the
same standards have been applied in worker’s compensation claims and in cases
involving automobile accidents. See e.g., Aetna Casualty & Surety Co. v. Long, 569
S.W.2d 444 (Tenn. 1978)(worker’s compensation for exposure to dust); Knoxville
Poultry & Egg Co., Inc. v. Robinson, 477 S.W.2d 515 (Tenn. 1972)(worker’s
compensation for bronchitis); Primm v. Wickes Lumber Co., 845 S.W.2d 768 (Tenn.
App. 1992)(motor vehicle accident); John Carl Reel and Melba Reel v. Itzel M.
Crawley, No. 03A01-9402-CV-0071 (Tenn. App., Knoxville, Aug. 2, 1994)(see
concurrence by J. Susano) (automobile accident).

                                             39
possible. Lindsey, 689 S.W.2d at 862. Medical testimony indicating that a certain

condition is “possible” generally will not satisfy the requirement of Rule 702 that an

expert witness’ testimony “substantially assist the trier of fact.” See Primm v. Wickes

Lumber Co., 845 S.W.2d at 770.



              In criminal cases, experts have at times testified to the cause of injuries

or other conditions “to a reasonable degree of medical certainty.”13 However, nothing

in Tennessee law requires that those or any other specific words be recited in order for

expert testimony to be admissible. In State v. Coker, 746 S.W.2d 167 (Tenn. 1987),

the supreme court upheld a trial court’s exclusion of a medical doctor’s testimony as it

fell short of the degree of medical certainty necessary for admissibility required in

Lindsey. Coker, 746 S.W.2d at 174 (citing Lindsey v. Miami Development Corp., 689

S.W.2d 856, 862 (Tenn. 1985)). The true test in Lindsey is whether the given conduct

or circumstances more likely than not caused the injury, condition or other result.

Kilpatrick v. Bryant, 868 S.W.2d at 602; see also State v. Mark Fortson, No. 268, slip

op. at 10 (Tenn. Crim. App., Knoxville, Feb. 2, 1990).



              Under the Rules of Evidence, the question is when is the medical

testimony so speculative that it is no longer of substantial assistance to the jury or is in

danger of being misleading or confusing. Tenn. R. Evid. 403, 702, 703. The supreme

court has applied the same standard in criminal cases as in civil cases. See Coker, 746

S.W.2d at 174. We must determine, therefore, whether Dr. Harlan’s responses were

sufficiently certain so that they could provide substantial assistance to the jury in

resolving a disputed question of fact or in understanding the evidence. See Primm v.


13
      State v. Maruja Paquita Coleman, No. 01C01-9401-CR-00029 (Tenn. Crim.
App., Nashville, July 31, 1997)(cause of death); Donna Bailey and Darrell Eugene
Helton v. State, No. 03C01-9207-CR-00226 (Tenn. Crim. App., Knoxville, Nov. 22,
1993)(cigarette burns); State v. James P. Anderson, No. 22 (Tenn. Crim. App.,
Knoxville, Nov. 9, 1990)(enlarged vaginal orifice).

                                            40
Wickes Lumber Co., 845 S.W.2d 768, 770-772.



              With respect to those questions in which the prosecutor asked whether

there were any other marks that could have been caused by a struggle and whether a

type of mark was consistent with a struggle against a bond, we find the doctor’s

responses were both sufficiently certain and of substantial assistance to the jury.

Although the prosecutor used the words “could have been,” the doctor’s responses

were clear and unequivocal. He described the various wounds in detail and responded

affirmatively that the marks found around the wrists and ankles were consistent with a

struggle against a bond. The testimony was relevant to the issues of intent, consent,

and other questions of material fact. The testimony was not so speculative that it was

not of substantial assistance to the jury. Although the doctor did not specifically state

that it was more likely than not that the wounds were the result of a struggle, we cannot

say that the trial court applied an incorrect legal standard or reached a decision which

is against logic or used reasoning that caused an injustice to the defendant. Melvin

Eugene Shuck, slip op. at 16 (citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn.

1996)).



              The medical examiner’s responses to the two questions concerning the

victim’s blood alcohol level are more problematic. In the first, the prosecutor asked,

“Sometime prior to death, could that blood alcohol level have been higher?” The doctor

responded, “It might have been.” In the second, the prosecutor asked, “Based on the

autopsy results, the blood alcohol level, would it be possible for Mr. Ladd to have been

rendered unconscious from alcohol sometime prior to his death?” The response was,

“If he had, prior to his time of death, at any time reached an alcohol level of .21 or

greater, as I previously testified, then he would be subject to nausea, vomiting, and a

comatose state or passing out.”


                                           41
              First, the state’s questions lacked certainty as to the time frame covered.

Although the context of the case implies that the prosecutor is speaking of the night in

question, “sometime” is usually insufficient to limit the expert’s consideration to any

specific occasion. Second, a mere possibility, without more, is insufficient to qualify as

an admissible expert opinion. Lindsey, 689 S.W.2d at 852. In this instance, the

prosecutor’s questions invited speculation, and the expert’s responses, not surprisingly,

were indefinite and vague. Evidence that merely makes it possible for a fact in issue

to be alleged or which raises a mere conjecture or suspicion is an insufficient

foundation upon which to base a verdict. Fine v. State, 193 Tenn. 422, 428-429, 246

S.W.2d 70, 72 (Tenn. 1952). Such testimony cannot provide substantial assistance to

the jury and should not be admitted into evidence. The admission of such evidence is

contrary to the reasoning and logic of Rules 702 and 703. Standing alone, however,

these errors may have been harmless.




                                           42
                             C. Hypothetical Questions

              The defendant contends that the trial court improperly allowed the state

to ask a hypothetical question that assumed facts that were not in evidence and that

the trial court also erred in refusing to allow the defense to ask a hypothetical

concerning the effect of alcohol on the deceased and the defendant. We find that

neither question was a proper hypothetical question, and that Dr. Harlan’s responses

should have been excluded in both instances.



              It has long been the law in Tennessee that it is not proper for hypothetical

questions to assume facts that are not supported by the evidence. Pentecost v. Anchor

Wire Corp., 662 S.W.2d 327, 328 (Tenn. 1983); Bailey v. State, 479 S.W.2d 829, 835

(Tenn. Crim. App. 1972); Moon v. Johnson, 47 Tenn. App. 208, 222, 337 S.W.2d 464,

470 (1959); Griffin v. State, 578 S.W.2d 654, 658 (Tenn. Crim. App. 1978); Nix v. State,

530 S.W.2d 524, 530 (Tenn. Crim. App. 1975). An appellate court, however, is not

required to search the entire record to determine whether every possible fact is listed

in the question or whether every hypothetical fact is supported by the evidence

presented by the opposing party. Pentecost v. Anchor Wire Corp., 662 S.W.2d at 328-

329. The issue is resolved “by determining whether the question contained enough

facts, supported by evidence, to permit an expert to give a reasonable opinion which

is not based on mere speculation or conjecture and which is not misleading to the trier

of fact.” Id. at 329.



              Tennessee’s traditional rule is not inconsistent with the requirements of

the Tennessee Rules of Evidence. Neil P. Cohen, et al., Tennessee Law of Evidence,

§ 705.1, at 477 (3rd Ed. 1995). Although Rule 705 abolishes the requirement of using

a hypothetical question, the rule does not disallow them. Tenn. R. Evid. 705, advisory

commission comments. Rule 703 allows an expert to base an opinion on facts not in


                                           43
evidence if they are of a “type reasonably relied upon by experts in the particular field”

and are trustworthy. Tenn. R. Evid. 703. A trial court may disallow opinions and

inferences if the underlying facts or data are untrustworthy, incomplete, or misleading.

Cohen, Tennessee Law of Evidence, § 705.1 at 477. Of course, an expert’s response

to a hypothetical question “must substantially assist the trier of fact to understand the

evidence or to determine a fact in issue. . .” Tenn. R. Evid. 702. A question based on

untrustworthy or incomplete data or that is misleading will not be of any assistance to

the trier of fact.



               In this case, two hypothetical questions were proposed, one by the state

and one by the defense. The trial court allowed the former and disallowed the latter.

After Doctor Harlan had testified to the rate at which alcohol metabolizes in the human

body, the prosecutor asked the following question:

                Just hypothetically, then, Doctor, say a period of five hours
                passes from the time that a person quits drinking till the
                time they die and you receive a result like you did in this
                case, based on that, a person weighing approximately 200
                pounds, could you estimate what their blood alcohol
                content would have been at the point of equilibrium after
                they quit drinking?

Defense counsel objected that there were not enough facts in the hypothetical.14 The

trial court overruled his objection, and Dr. Harlan was allowed to testify that a person

whose blood alcohol level at death was .19 and who stopped drinking five hours prior

to death would have a attained a blood alcohol level of .265 grams after consuming the

last drink.



                The state’s hypothetical question is based on three facts: (1) that the


14
      In his objection, defense counsel noted that the hypothetical did not include
information about the kind of liquor being consumed but made no mention of the
time when the last drink was consumed. The state did not raise the issue of waiver,
and we have decided to address the issue on its merits in the interests of justice.
Tenn. R. App. P. 2.

                                             44
person quit drinking five hours prior to death, (2) that at death the person’s blood

alcohol level was .19 grams, and (3) that the person in question weighed approximately

200 pounds. The victim’s weight and his blood alcohol level are included in the autopsy

records and no one questions their trustworthiness.          Dr. Harlan testified to the

metabolization rate of alcohol, a fact usually relied upon by experts in the field.

However, the fact that this hypothetical person quit drinking five hours prior to his death

is unsupported by the record. The defendant testified that the two men continued to

drink throughout the night. Nothing contradicts this statement. Moreover, the record

does not clearly establish the time of death. We must determine whether the question

contained enough facts, supported by evidence, to permit Dr. Harlan to give a

reasonable opinion which was not based on mere speculation and which would be of

“substantial assistance to the trier of fact.” Id. at 329.



              This court has previously held that a trial court erred in allowing an expert

to answer a similar question when a vital factual component was not supported by the

evidence. Griffin, 578 S.W.2d at 658-659. In Griffin, the state asked an expert witness

to relate the minimum number of beers persons weighing 115 pounds and 160 pounds

respectively would require before reaching a specific blood alcohol level. The weight

of the defendants, however, was never placed in evidence, and this court held that the

expert’s response was inadmissible. Id.



              In this instance, a necessary fact to the resolution of a hypothetical

question was unsupported by the evidence. To answer the question, Dr. Harlan was

required to speculate both as to the time the last drink was taken and the time of death.

It is unlikely that the answer to such a hypothetical question would assist the jury in

understanding the evidence or in resolving any disputed factual issues. While the trial

court might have erred in permitting the doctor to respond, this error would not have


                                            45
warranted a reversal. The gravamen of Dr. Harlan’s testimony, in this regard, was to

establish the rate at which the victim was able to metabolize the alcohol.



              During cross examination, Dr. Harlan testified that intoxication reduces

one’s judgment, alters the ability to perceive changes in the environment, and increases

the time to react. Defense counsel then proposed the following question:

              So it’s entirely possible, isn’t it, Doctor, that if in this case
              we have two intoxicated men performing or engaging in
              bondage sex, it’s entirely possible for the one who is not in
              bondage at a given point in time not to appreciate the
              discomfort of his sexual partner since he is intoxicated.

The state objected because the doctor lacked “the information to base that conclusion

on.” When defense counsel conceded that “the information” was not yet in the record

but would come in later, the trial court sustained the objection. We cannot say that the

trial court abused its discretion in refusing to allow the doctor to respond. Although the

jury would ultimately hear the defendant’s statement concerning bondage sex, nothing

concerning the defendant’s degree of intoxication would ever be placed in evidence.

The defendant did not have a blood test during the early morning hours when Joey

Ladd died, and his level of intoxication is a matter of speculation and conjecture. The

trial court did not err in sustaining the state’s objection.



                              V. Lay Witness Testimony

              Over the defendant’s objection, the trial court allowed one of the

investigating officers to give his impression of the defendant’s demeanor during the

interview and to express his opinion as to the nature of the stains on the sleeping bag.

The defendant now argues that the admission of this testimony denied him a fair trial.

After carefully reviewing the record and the applicable law, we conclude that some of

Warf’s responses were improperly admitted.




                                             46
              Opinion testimony is generally limited to witnesses who qualify as experts

in the subject matter of their respective testimony. Tenn. R. Evid. 702. Lay witnesses

may express opinions when certain prerequisites are established. Tenn. R. Evid. 701.

This rule, as adopted on January 1, 1990, essentially incorporated existing Tennessee

law. State v. Sparks, 891 S.W.2d 607, 613 (Tenn. 1995).             Ordinarily, in order to

preserve the fact-finding function of the jury, a witness should state the evidentiary facts

and allow the jury to draw such conclusions as the facts warrant. Blackburn v. Murphy,

737 S.W.2d 529, 532 (Tenn. 1987). When lay opinion is admissible, Tennessee law

traditionally has required that an opinion be based upon a factual predicate found in

facts admissible in evidence. Sparks, 891 S.W.2d at 613.



              As the Advisory Commission to the Tennessee Rules of Evidence notes,

              The rule rather specifically circumscribes the area where a
              lay witness can testify to opinions as opposed to facts. The
              Commission believed that the instances would be rare
              where a witness could not convey thoughts to the jury by
              enumerating facts, leaving it to the jurors to draw
              inferences.

Tenn. R. Evid. 701, advisory commission comments. Before a lay witness may express

an opinion or an inference, the party presenting the witness must establish:

              (1) The witness has “personal knowledge” of the facts or
              subject matter that forms the basis for the opinion or
              inference, Tenn. R. Evid. 602;

              (2) The opinion or inference does not require a special
              knowledge, skills or training, Tenn. R. Evid. 701(a)(1);

               (3) The witness cannot readily and with equal accuracy
              and adequacy communicate what the witness has
              perceived to the trier of fact without testifying in terms of
              opinions or inferences, Tenn. R. Evid. 701(a)(2);

              (4) The opinions or inferences expressed by the witness
              will not mislead the trier of fact to the prejudice of the
              adverse party. Tenn. R. Evid. 701(a)(3).

See Sparks, 891 S.W.2d at 613; State v, Catherine Ward, No. 01C01-9307-CC-00224,

slip op. at 19 (Tenn. Crim. App., Nashville, Feb. 2, 1996).

                                            47
              Detective Warf testified that the stains on the sleeping bag appeared to

be blood or other bodily fluids. Such a characterization may be proper if there is no

other way to state such an observation clearly. State v. Brown, 836 S.W.2d 530, 550

(Tenn. 1992). The state relies upon State v. Mabon, 648 S.W.2d 271, 274 (Tenn. Crim.

App. 1982) and Schweizer v. State, 399 S.W.2d 743, 745 (Tenn. 1966), to justify the

admission of the detective’s opinion. In Mabon, however, the officer testified that he

observed what appeared to be blood on a door and on a walkway immediately after a

crime was committed, Mabon, 648 S.W.2d at 274, and the officer in Schweizer reported

that he noticed what appeared to be blood under the defendant’s right arm shortly after

the defendant’s arrest. Schweizer, 399 S.W.2d at 745. In the present case, the

prosecutor handed Detective Warf the sleeping bag and asked him what those stains

appeared to be.15 When the defense objected, the prosecutor replied that Warf had

nine years of experience as a police officer, and “in addition to that, that’s just

something that is within everyone’s common experience.”



              We agree with the prosecutor’s statement that almost everyone is familiar

with the appearance of blood stains. Therefore, the members of the jury were as

qualified as Detective Warf to determine the possible origin of a stain that appeared on

a tangible object that was admitted into evidence and that was viewed by the entire jury.

Although it may have been necessary for the officers in Mabon and Schweizer to

characterize what they had seen as “blood” because the jury could not see the stains,

such a characterization was not required in this case. Detective Warf’s opinion

regarding the source of the stains on the sleeping bag should not have been admitted.

This error would not warrant a new trial. The jurors could have easily reached the same

conclusions as Detective Warf.


15
       The prosecutor also asked the detective to look at a photograph of the
victim’s head, and the detective testified that the marks appeared to be dried blood.
The defendant has not raised any issue regarding this particular response.

                                           48
              The detective’s comments regarding the defendant’s demeanor during

questioning present a closer question. During redirect examination, Detective Warf

testified that sometimes the defendant became “vague,” that he “acted as though he

didn’t want to tell us everything,” and that “it seemed he didn’t want to answer a

question.” In a case decided prior to the adoption of the Tennessee Rules of Evidence,

a defendant’s statement was read aloud at trial. State v. Johnson, 743 S.W.2d 154, 158

(Tenn. 1987). The defendant’s attorney was present when the statement was taken,

and twice during the reading, the police officer referred to his notes and testified that

the appellant appeared to be nervous and asked to confer with his attorney prior to

answering the question. Id. Our supreme court held that “[g]enerally where the

answers to questions are admissible, the demeanor and behavior of the person giving

the statement may be commented upon by witnesses who were present.” Id. In a

more recent case, however, the supreme court held that under Rule 701 a police

officer’s statements that the defendant knew the wrongfulness of his conduct and could

conform his conduct to the law were not admissible. Sparks, 891 S.W.2d at 614. The

court found that the officer had only a very limited opportunity to observe the defendant,

and since the observations on which the officer based his conclusions were adequately

communicated to the jury in other evidence, the detective was in no better position to

draw a conclusion than were the members of the jury. Id. In addition the court noted

with approval the Advisory Committee’s note to Federal Rule of Evidence 701 that

“assertions which amount to little more than choosing up sides, should be excluded as

unhelpful to the jury.” Id.



              Detective Warf’s comments were unnecessary to the extent that he drew

conclusions from the hesitations and ramblings of the defendant’s responses. Warf

testified that “it seemed like he didn’t want to tell us,” that “he didn’t want to answer a

question,” and that “his response would become vague or he would jump to another


                                            49
issue.” These comments should have been disallowed. The detective, however, was

present at the interview and was able to see the defendant’s facial expression, body

movements, and posture. If the prosecutor had asked the detective to describe those

reactions, descriptions of the defendant’s demeanor may well have assisted the jury in

determining the weight and credibility of the defendant’s statements. While some of

the detective’s remarks were neither descriptive nor concerned with the defendant’s

demeanor,16 that the defendant “appeared calm” is admissible as reflective as

demeanor. The supervision of this kind of testimony is largely discretionary with the

trial court. The testimony that should have been excluded might have had minimal

impact on the jury. The subject matter does relate to the question of redaction, which

has been previously addressed. Thus, the failure to redact was exacerbated by some

of Detective Warf’s testimony.



          VI. Admissibility of Crime Scene Videotape and Photographs

              The defendant next contends that the trial court erred in admitting into

evidence a videotape showing the victim’s body at the site where it was found, various

photographs showing injuries the victim suffered, and a single photograph of the

contents of the defendant’s refrigerator.         He alleges that the video tape and

photographs were of little or no probative value and, therefore, should have been

excluded because their probative value is substantially outweighed by their prejudicial

effect.



              Photographs and videotapes of the victim of a homicide are generally

admissible in murder prosecutions if they are relevant to issues on trial. Our supreme

court has held that the “admissibility of photographs lies within the discretion of the trial


16
       “Demeanor” is defined as behavior toward others, outward manner, and
conduct, or bearing, mien, and facial appearance. Webster’s Third New
International Dictionary 599 (1993).

                                             50
court whose ruling . . . will not be overturned on appeal except upon a clear showing

of an abuse of discretion.” State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). In

Banks, the court listed the following factors that trial courts should consider in

determining the admissibility of photographs of murder victims: (1) the accuracy and

clarity of the photographs and their value as evidence; (2) whether the photographs

were taken before the body was moved, if the position and location is material; (3) the

adequacy of testimonial evidence in relating facts to the jury; and, (4) the need for the

evidence to establish a prima facie case or to rebut the defendant’s contentions.

Banks, 564 S.W.2d at 951. The modern trend vests great discretion in a trial court’s

ruling on the admissibility of photographs. Id. Photographic evidence may be excluded

if its probative value is substantially outweighed by the danger of unfair prejudice or

confusion of the issues or if the evidence would mislead the jury or is needlessly

cumulative. State v. Bates, 804 S.W.2d 868, 878-79 (Tenn. 1991); Tenn. R. Evid. 403.



              In this case, neither the photographs of the body nor the videotape were

gruesome or horrifying. The videotape contains no police commentary and shows the

scene where the body was found and its condition. The photographs of the body show

the bruising around the victim’s wrists and ankles, the damage to his fingertips, and a

shallow gash in his head.17 This information is relevant to the material issues of

premeditation, intent, and consent.      Although the photographs may have been

somewhat cumulative to other testimony we cannot say that they are needlessly

cumulative, that they misled the jury, or that they were unfairly prejudicial to the



17
        We recognize that some of the photographs were taken in the morgue after
the body had been moved and that this weighs against their admissibility. See
Banks, 564 S.W.2d at 951; State v. LeRoy Hall, No. 03C01-9303-CR-00065, slip op.
at 26 (Tenn. Crim. App., Knoxville, Dec. 30, 1996). In this instance, however, the
photographs were taken prior to the autopsy, and the victim had not undergone any
treatment that might have changed the appearance of the injuries. The nature of
the injuries was especially probative of lack of consent and the severity of the acts of
the defendant.

                                           51
defendant. Tenn. R. Evid. 403.       The trial court did not err in admitting either the

videotape or the photographs of the body.



              The picture of the contents of the defendant’s refrigerator, however,

should have been excluded. The photograph shows the bottom shelf of a refrigerator

which held three bottles and five cans of beer, a green bottle which was identified at

trial as Jagermeister, a large container of Coca Cola, and two other bottles which may

contain fruit juice. The officer testified that he took the picture one week after the

homicide occurred.      The state has not demonstrated that the contents of the

defendant’s refrigerator seven days after the victim’s death by strangulation has any

relevance to the issues in this case. The photograph could contribute no information

about events that occurred a week earlier and should not have been admitted.

Admission of the photograph was error.



                     VII. Testimony of James Andrew Starnes

                                A. “Lifestyle” Evidence

              When the state called James Andrew Starnes, the defendant’s close

friend, to testify at trial, the following occurred on direct examination:

              Q.     In addition to yourself, would you see other
                     people over at his apartment that you knew?

              A:     People from work, yes, sir, sometimes, not always.

              Q.     Other than you and the people at work, did
                     you see any other persons over at Mr.
                     Young’s apartment when you were there?

At this point, defense counsel objected.     When the trial court excused the jury, the

prosecutor stated as follows:

              I am seeking to elicit testimony that other people that
              worked with him were over there.

                    I am also seeking to elicit testimony that all of the
              people that went over there, like the alleged victim in this

                                            52
              case, were some ten to 12 to 15 years younger. And
              through Mr. Waldron’s cross-examination of the previous
              witness, he brought out that Mr. Young was concerned
              about the drinking habits of the alleged victim in this case,
              thought he needed to be counseled, but I want to show
              through this witness that he as well as others went over
              there on a regular basis at Mr. Young’s apartment and
              drank alcohol, and that this was a similar situation to what
              the victim in this case found himself in, and that this alleged
              counseling or getting him over there to counsel him about
              his partying was just a ploy to get him over to the apartment
              and to make his acquaintance.

                     And I think it is relevant to show that this was not an
              isolated event in the lifestyle that Mr. Young led.

Defense counsel argued that the testimony concerned prior bad acts and was

inadmissible under Rule 404(b). The trial judge responded that he did not view it as a

prior bad act. Defense counsel then responded that, in any event, the testimony was

irrelevant, and if it were marginally relevant to any issue in the case, the jury could draw

some highly prejudicial inferences from such testimony. The trial court overruled the

objection. The prosecutor then continued:

              Q.      Now, Mr. Starnes, back to the fall of 1994, I
                      believe you testified that you had occasion to
                      go over to Mr. Young’s apartment at least
                      twice a week?

              A:      Yes, sir.

              Q:      Would that be a fair statement?

              A:      Yes, sir.

              Q:      Would that be after work?

              A:      I worked from 6:00 a.m. to 2:00 p.m., so not
                      usually right after work.

              Q:      Tell us the time of day that usually you would
                      go over to Mr. Young’s apartment.

              A:      Like 7:00 o’clock or something.

              Q:      And when you went over to Mr. Young’s
                      apartment, other than you and Mr. Young, did
                      you see other people over there that you
                      knew?


                                            53
              A:     Occasionally, people from work.

              Q:     And did you see anybody else over there that
                     you didn’t know?

              A:     No, sir.

              Q:     Now what would you do when you were over
                     at Mr. Young’s apartment back in the fall of
                     1994.

              A:     Watch movies and drink beer.

Later the prosecutor continued:

              Q:     Now, Mr. Starnes, not to embarrass you, but
                     did you ever get drunk over at Mr. Young’s,
                     drink to that point?

              A:     Yes, sir.

              Q:     Did you ever see Mr. Young drink to the point
                     that he was intoxicated?

              A:     Yes, sir.



              The defendant contends that this testimony was elicited in violation of

Rule 404(b) of the Tennessee Rules of Evidence. The state argues that Starnes’s

testimony is evidence of habit and admissible under Tennessee Rules of Evidence 406.

We disagree. As discussed below, Starnes’s testimony clearly is not evidence of habit,

and Starnes’s responses regarding the defendant's lifestyle propensities should have

been excluded under Rules 403 and 404(b).



              Rule 406, which governs the admissibility of evidence of habit or routine

practices, provides in part:

              (a) Evidence of the habit of a person, an animal or of the
              routine practice if an organization . . . is relevant to prove
              the conduct of the person, animal, or organization on a
              particular occasion was in conformity with the habit or
              routine practice.

              (b) A habit is a regular response to a repeated specific
              situation. A routine practice is a regular course of conduct

                                           54
              of an organization.

Tenn. R. Evid. 406. Tennessee courts recognize the dangers of such evidence and

generally do not look on it with favor. Bridges v. CSX Transportation, Inc., 845 S.W.2d

760, 765 (Tenn. App. 1992). To be admissible, its relevancy and probative value must

clearly appear. Id. (citations to other sources omitted). Habit or custom is not probative

unless the action is of sufficient regularity to make it probable it would occur in almost

every instance. Cable v. Russell, 2 Tenn. Crim. App. 363, 369, 454 S.W.2d 163, 166

(1969).



              Nothing in Starnes’s testimony indicates that the actions he described

occurred with sufficient regularity to be considered habitual activity that would occur in

every instance or even in most instances. Such testimony was not admissible under

Rule 406. Of course, even if such “habit” evidence had been established, its relevance

to any material issue in the case is doubtful.



              Rule 404 governs the admissibility of character evidence. Although there

are exceptions, the rule is one of exclusion. State v. Bordis, 905 S.W.2d 214, 227

(Tenn. Crim. App. 1995); Tenn. R. Evid. 404(a). 18 Although usually applied to other

crimes, wrongful acts, or misconduct, the language of the rule does not require that the



18
       The rule provides:
                    (a) Character Evidence Generally.
                    Evidence of a person’s character or a trait
                    of character is not admissible for the
                    purpose of proving action in conformity with
                    the character or trait on a particular
                    occasion, except:

                            (1) Character of Accused.
                     Evidence of a pertinent character trait
                     offered by the accused or by the
                     prosecution to rebut the same.

Tenn. R. Evid. 404(a)(1).

                                           55
acts covered by the rule be either criminal or wrongful. It states that “[e]vidence of

other crimes, wrongs, or acts is not admissible to prove the character of a person in

order to show action in conformity with the character trait.” Tenn. R. Evid. 404(b)

(emphasis added). According to the clear language of the rule, evidence of an act that

may be neither criminal nor overtly wrongful is still subject to the requirements of Rule

404(b) if the state introduces the evidence to prove that a defendant acted in conformity

with a given character trait.19 See Woodson v. Porter Brown, 916 S.W.2d 896, 908

(Tenn. 1996)(evidence relating to carefulness excluded); State v. Christopher David

Wilson, No. 02C01-9502-CC-00045, slip op. at 18 (Tenn. Crim. App., Jackson, Dec.

1, 1997) (rule 404(b) not limited to other crime evidence). The rule excluding such

evidence is based on the recognition that the evidence may lead a jury to convict a

defendant for an apparent propensity or disposition to commit a crime regardless of the

strength of the evidence concerning the offense on trial. Bordis, 905 S.W.2d at 232;

State v. Tizzard, 897 S.W.2d 732, 743-44 (Tenn. Crim. App. 1994). In those instances

where the conduct or acts are similar to the crimes on trial, the potential for such a

result increases. Bordis, 905 S.W.2d at 232.



              Lifestyle evidence is character evidence subject to Rule 404(b). Id. The

defendant’s character was not an issue in this case. The defendant made no attempt

to deny that he was a homosexual or that he used alcohol. Although evidence of a

prior act is not admissible to prove propensity or disposition to commit a crime, it may

arguably be relevant to issues such as identity, intent, motive, or rebuttal of accident

or mistake. State v. Parton, 694 S.W.2d 299, 303 (Tenn. 1985); Tenn. R. Evid. 404,




19
         Similarly, Rule 405 does not apply solely to negative character traits nor to
specific incidents of wrongful conduct. The rule refers to “evidence of character or a
trait of character,” Tenn. R. Evid. 405(a), and to “specific instances of that person’s
conduct.” Tenn. R. Evid. 405(b).

                                           56
advisory commission comments. 20       Therefore, unless the evidence is relevant to a

material issue such as intent or motive, the testimony should have been excluded.



              We find nothing in Starnes’s testimony that is relevant to establishing an

intent, motive or any other relevant fact. Intent and motive should not be confused with

propensity. Parton, 694 S.W.2d at 303. Nor should evidence of what may be

perceived as an unwholesome lifestyle be allowed to cloud the issues that are before

the jury. Bordis, 905 S.W.2d at 214. In State v. Rickman, 876 S.W.2d 824, (Tenn.

1994), our supreme court quoted the Delaware Supreme Court with approval:

              We are no more inclined to endorse [the assumption that
              a defendant’s propensity for satisfying sexual needs is so
              unique that it is relevant to his guilt] than we are to consider
              previous crimes of theft as demonstrating a larcenous
              disposition and thus admissible to show proof of intent to
              commit theft on a given occasion.

Rickman, 876 S.W.2d at 829 (quoting Getz v. State, 538 A.2d 726, 734 (Del. 1988)).

In addition, the evidence in question is not relevant to rebutting the defense of

accident. Although the defendant argued that the death of the victim was accidental,

evidence concerning the defendant’s social activities does not speak to that issue.



              Even if the testimony had some minimal relevance to an issue that was

before the jury, Rule 404(b) would require the trial court to exclude the evidence as its

insignificant probative value is outweighed by the danger of unfair prejudice. Tenn. R.

Evid. 404(b)(3). The 404(b) balancing test differs from that in Rule 403 which calls for

the exclusion of relevant evidence if the probative value is substantially outweighed by



20
        The rule also requires the trial judge to hold a jury-out hearing, if requested,
and, prior to admitting the evidence, to identify the specific material, disputed issue
for which the evidence is being admitted. Tenn. R. Evid. 404(b)(1), (2). In addition
the trial judge must find that the probative value of the evidence is not outweighed
by any danger of unfair prejudice. Tenn. R. Evid. 404(b)(3). Obviously the trial
judge did not make the requisite findings in this instance because he believed that
the rule was inapplicable if the prior acts were not “bad.”

                                            57
the danger of unfair prejudice. Tenn. R. Evid. 403. Even under Rule 403, the

testimony should have been excluded because of its minimal probative value.



                        B. Failure to Comply with Rule 26.2

              The defendant also contends that the trial court should have stricken from

the record Starnes’s testimony quoting the defendant because the state failed to

comply with Rule 26.2 of the Tennessee Rules of Criminal Procedure. The rule

provides that after a witness has testified, the court shall, on motion, direct the party

calling the witness to produce any statement of the witness in that party’s possession.

Tenn. R. Crim. P. 26.2(a) (emphasis added). Although the Tennessee Supreme Court

has strongly recommended that such statements be provided before trial in order to

expedite trials and avoid lengthy recesses, State v. Caughron, 855 S.W.2d 526, 535

(Tenn. 1993), nothing in the rule requires that either party provide a witness statement

prior to trial. Moreover, the record in this case indicates that the witness arrived in

Murfreesboro the day before he testified. Although the prosecutor admitted that a

statement existed, it could not have been produced much earlier.



              Rule 26.2(a) allows a defendant to move for the production of any

witness’s statement in the state’s possession after the witness has testified. If the

defense requests a recess in order to review the statement, the trial court may grant the

request to allow the defense a reasonable opportunity to study the statement and to

prepare for cross-examination. Caughron, 855 S.W.2d at 535; Tenn. R. Crim. P.

26.2(d). The defense never moved for the production of the statement. Instead,

counsel moved to strike Starnes’s testimony. Striking the testimony was neither

necessary nor appropriate under the Rules of Criminal Procedure, and the trial court

did not err in denying that request. See Tenn. R. Crim. P. 26.2.




                                           58
                          VIII. Comments by the Trial Court

              During the cross-examination of Detective Warf, the defense attempted

to impeach the witness by using his testimony given at the preliminary hearing.

Defense counsel referred to a specific page and line in the transcript. After obtaining

a response from the witness, defense counsel began to move on to the next question.

The trial judge turned to the prosecutor and asked, “General, is there any other potion

of that page you want read to put this in context?” The General declined, stating that

he would cover it on redirect. The defense contends that the trial court’s comment

implied that defense counsel was attempting to conceal information or to mislead the

jury. We respectfully disagree.



              Obviously a trial judge should take care not to express any thought that

might lead the jury to infer that the judge is in favor of or against the defendant in a

criminal case. Caughron, 855 S.W.2d at 536 (citing Brooks v. State, 187 Tenn. 67, 74,

213 S.W.2d 7, 10 (Tenn. 1948)). If the interjections and comments of a trial judge

clearly violate the mandate of impartiality, they may infringe upon a defendant’s right

to a fair trial. Caughron, 855 S.W.2d at 536-537; State v. Jerry Douglas Franklin, No.

01C01-9510-CR-00346, slip op. at 27-28 (Tenn. Crim. App., Nashville, Feb. 28, 1997).



              In this case, however, the trial court’s interjection was not a comment on

the evidence. As the trial judge explained when ruling on the motion for new trial, he

asked the question for the purpose of complying with Tennessee Rule of Evidence 106

which allows a party to read into the record any other portion of a writing or recorded

statement that should be considered contemporaneously with the segment introduced

by an adverse party. 21


21
       The defendant’s failure to make a contemporaneous objection to the court’s
question has waived this issue. Tenn. R. App. P. 36(a). However, we have chosen
to consider the issue on its merits. We note that, if a timely objection had been

                                          59
made, the trial court could have given the jury an immediate curative instruction.

                                         60
                        IX. A Defendant’s Right to Plead Guilty

                After the state rested, the trial court granted the defendant’s motion for

judgment of acquittal for premeditated and deliberate murder. The court agreed with

the state that Count I of the indictment was now a charge of second-degree murder.

The next morning, the defense rested without putting on any proof. After the judge

instructed the jury, defense counsel approached the bench and, out of the jury’s

hearing, told the trial court that the defendant wished to plead guilty to second-degree

murder. The state objected on the grounds that the state had not entered into any plea

agreement with the defendant. The trial court then refused to allow the defendant to

plead guilty.



                The defendant now contends that he had the right to plead guilty to the

charge of second-degree murder in the amended count of the indictment.          The state

argues, first, that a defendant has no absolute right to plead guilty and, second, that

even if the trial court had accepted his guilty plea, the charge of felony murder in Count

2 would still have gone to the jury. Upon conviction on Count 2, the state reasons, the

two convictions would have merged into one conviction for felony murder.



                As the state points out, the acceptance of the plea would not have

required the dismissal of the charge of felony murder because a plea to a lesser

offense does not bar the state from trying the accused for the greater. Parham v. State,

885 S.W.2d 375, 380 (Tenn. Crim. App. 1994). Although the double jeopardy

guarantees of the Fifth Amendment to the United States Constitution and Article I,

Section 10 of the Tennessee Constitution protect individuals against a second

prosecution or multiple punishments for the same offense, double jeopardy concerns

are satisfied by either vacating the lesser conviction or merging the lesser into the

greater. State v. Hurley, 862 S.W.2d 57, 69-70 (Tenn. 1993); State v. Zirkle, 910


                                            61
S.W.2d 874, 889 (Tenn. Crim. App. 1995); State v. Sledge, No. 02C01-9405-CR-

00089, slip op. at 17, 18 (Tenn. Crim. App., Jackson, Nov. 24, 1997); State v. Perry A.

Cribbs, No. 02C01-9508-00211, slip op. at 36 (Tenn. Crim. App., Jackson, Feb. 14,

1997).22 Therefore, even if the trial judge had accepted the defendant’s guilty plea, a

conviction for felony murder was still possible, and the case would have gone to the jury

on the second count of the indictment. The trial court did not abuse its discretion in

refusing to accept a futile guilty plea. See Goosby v. State, 917 S.W.2d 700 (Tenn.

Crim. App. 1995).



                             X. Prosecutorial Misconduct

             A. Improper Comment on Defendant’s Failure to Testify

              The defendant argues that the prosecutor improperly commented on his

failure to testify when he argued that only Mr. Ladd and Mr. Young were present that

night, and “we can’t hear from Mr. Ladd anymore. We can’t get his version.” A

prosecutor is strictly prohibited from commenting upon a decision made by a defendant

not to testify at trial. Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229 (1965); Tenn.

Const. Art. I § 9; State v. Shepherd, 862 S.W.2d 557, 572 (Tenn. Crim. App. 1992).

The prosecutor, however, did not comment on the defendant’s failure to testify. The

defendant’s statement conveyed to the jury the defendant’s version of events. The

prosecutor’s remark may have questioned the credibility of the defendant’s version by

pointing out that only one side of the story had been told, but it was not a comment on

the defendant’s failure to testify.




22
      We note that these cases are not in agreement as to those circumstances in
which the lesser conviction must be dismissed rather than merged into the greater.
For our analysis, it makes no difference. The result of either merger or dismissal of
the second-degree conviction would have the same result.

                                           62
                             B. Inflammatory Remarks

              The defendant also contends that a number of remarks in the

prosecutor’s closing argument were improper and calculated to inflame the passions

of the jury. As examples of those improper arguments, the defendant cites the

following:

              1.     The defendant was older than his co-workers
                     “that would frequent his apartment on a
                     regular basis to drink and do ‘whatever.’”

              2.     The defendant provided a place to party and
                     to drink in order to fulfill “that closet desire
                     because we have not heard about one young
                     lady that went over to his apartment. We
                     have not heard about any relationship with a
                     female.”

              3.     “Many other young men have gone to Mr.
                     Young’s apartment to engage in drinking.”

              4.     “He was in the habit of entertaining the young
                     men he worked with.”

              5.     “You saw a picture of his refrigerator, and
                     you saw what was in it. Beer, liquor, and this
                     stuff. And he was glad to do that because
                     that was a way that he could fulfill part, I
                     submit to you, the proof would show, of his
                     closet homosexuality.”

These comments, the defendant argues, are improper comments on the evidence and

were intended to elicit the prejudices of the jury against the defendant as a homosexual

and to infer that he enticed younger men to his apartment “to drink and do whatever.”

The state contends that the defendant’s failure to make a contemporaneous objection

to all but one of these remarks constitutes waiver and that, in any case, the arguments

were not improper as they were based on evidence admitted at trial. Defense counsel

objected only to the second remark described in the list above. When a party fails to

take whatever action is reasonably available to prevent or nullify the harmful effect of

an error, this court is not required to grant relief. Tenn. R. App. P. 36(a). However, in

the interests of justice, we will consider the defendant’s complaints concerning the


                                           63
prosecutor’s closing argument in full. Tenn. R. App. P. 2.



             Closing arguments are an important tool for both parties during the trial

process. State v. Clarence C. Nesbit, No. 02C01-9510-CR-00293, slip op. at 24 (Tenn.

Crim. App., Jackson, Apr. 22, 1997). Consequently, attorneys are usually given wide

latitude in the scope of their arguments. See State v. Bigbee, 885 S.W.2d 797, 809

(Tenn. 1994). Trial judges are accorded wide discretion in their control of those

arguments, see State v. Zirkle, 910 S.W.2d 874, 888 (Tenn. Crim. App. 1995), and a

trial court’s finding will not be reversed absent an abuse of that discretion. State v.

Payton, 782 S.W.2d 490, 496 (Tenn. Crim. App. 1989).



             Tennessee law requires that a prosecutor’s closing argument “must be

temperate, must be predicated on evidence introduced during the trial of the case, and

must be pertinent to the issues being tried.” Sparks v. State, 563 S.W.2d 564, 569

(Tenn. Crim. App. 1978) (quoting from Russell v. State, 532 S.W.2d 268, 271 (Tenn.

1976)).   In this instance, the district attorney general’s remarks were predicated on

evidence introduced during trial. The photograph of one shelf in the defendant’s

refrigerator was in evidence as was the testimony of Mr. Starnes about the occasional

gathering of co-workers at the defendant’s apartment at which they drank and watched

movies. However, the inferences drawn by the prosecutor from that evidence were

neither reasonable nor pertinent to issues before the jury. The statement that young

co-workers “would frequent his apartment on a regular basis to drink and do whatever”

was based on Mr. Starnes’s testimony that occasionally co-workers gathered at the

defendant’s place to drink and watch movies. Although these comments may have

had some minimal relevance to proving the elements of premeditation and deliberation,

those issues were no longer before the jury. Under count 1, the jury had to determine

whether the defendant acted knowingly, recklessly, or with sufficient provocation to


                                          64
justify a voluntary manslaughter conviction. In count 2, the jury had to decide whether

the victim was killed during the perpetration of a rape or an attempted rape and the

major issue was consent. The prosecutor’s comments regarding the defendant’s

lifestyle were completely irrelevant to those issues. The trial court would have acted

properly in sustaining objections to such comments.



                                    CONCLUSION

              While this was a complex trial with several important issues, the primary

consideration for the jury was whether the second sexual encounter was consensual.

The state theorized that the defendant took advantage of the unconscious victim and,

when discovered, killed to hide his crime. The level of intoxication of the victim was

especially relevant to the question of consent. The medical testimony was especially

important to the state. Portions of it should have been excluded.



              The mens rea of the defendant as to his intent to rape is critical to the

verdict.   The entire theory of the state depends upon the interpretation of the

unredacted statements made by the defendant to police. This is, did the totality of the

evidence suggest a forceful rape of a younger victim helpless to resist? Or could this

have been consensual sex between adults involving bondage that, due to the reckless

acts of the defendant, resulted in the unintended death of the victim? In our view, the

possibilities ranged from criminally negligent homicide to first degree murder. It was

the duty of the jurors to assess the various alternatives.



              There were, by our calculations, some eight relatively minor errors in the

course of the trial. Two of the errors pertained to the recorded statement of the

defendant, the single most important piece of evidence in the trial. The testimony of

Detective Warf as to the demeanor of the defendant during his interview with police is


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of concern but, as indicated, not enough, standing alone, to warrant reversal. The trial

court allowed accusatory speculation by the detective.           The audiotape of the

statements allowed the jury to assess the defendant’s voice or pauses in speech and

then arrive at its own conclusions. The implications of the officers during the interview,

while perfectly understandable, tainted somewhat the desired neutrality in the

assessment of the facts.       The lifestyle testimony, particularly as it related to

drunkenness and homosexuality, invited speculation. During closing argument, the

prosecution linked that lifestyle (entertaining young men, providing them with alcohol,

and doing “whatever”) to the defendant’s intent to fulfill his “closet desires” and “closet

homosexuality.” In essence, the state asked the jury to conclude that this death had

resulted from an intended rape because the defendant had a demonstrated a desire

and propensity to generally engage in this type of risky conduct.



              In our view, any one of these errors would not have warranted a new trial.

Their cumulative effect, however, casts doubts upon the reliability of the verdict. See

Taylor v. Kentucky, 436 U.S. 478 (1978); State v. Zimmerman, 823 S.W.2d 220 (Tenn.

Crim. App. 1991). Despite the considerable evidence of guilt, the facts present a close

question between first degree murder and a lesser degree of homicide. The trial court

instruction to the jury implied that. Under these very unusual circumstances, a new trial

is warranted. See State v. McCray, 922 S.W.2d 511 (Tenn. 1996).



              We acknowledge that the issues in this case placed incredible demands

upon the skills of the trial judge, who is among the very best in our profession. While

it is difficult to assess the cumulative effect of several relatively minor errors, we are

hesitant to classify them as collectively harmless. In our view, the crucial question for

this jury to answer was the grade of homicide. While there is sufficient evidence to

show a felony murder, there is also evidence of second degree murder, a criminally


                                            66
negligent homicide, or perhaps, other grades of the offense. See Gladson v. State, 577

S.W.2d 686, 687 (Tenn. Crim. App. 1978) (where irrelevant and prejudicial evidence

erroneously admitted, the court could not conclude the evidence did not cause the jury

"to reject the plea of self-defense or ... consider the offense of manslaughter"). A new

trial can provide the best answer to the various possible alternatives.



              Upon remand, the trial court must establish the status of count 1.

According to our review, no verdict was entered on count 1 which the trial court reduced

to a charge of second degree murder. It appears that the charge in count 1 is still

pending; the count should be concluded by appropriate order. Our interpretation is that

count 1 has, in effect, been mistried.



              Accordingly, the judgment of the trial court is reversed and the cause is

remanded for further proceedings as contemplated by this opinion.



                                                 _______________________________
                                                 GARY R. WADE, JUDGE

CONCUR:



_______________________________
DAVID H. WELLES, JUDGE



_______________________________
CURWOOD WITT, JUDGE




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