         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                       June 4, 2002 Session

         STATE OF TENNESSEE v. HOWARD JEFFERSON ATKINS

                    Direct Appeal from the Circuit Court for Tipton County
                             No. 3956 Joseph H. Walker, Judge



                      No. W2001-02427-CCA-R3-CD - Filed May 16, 2003



        Following a transfer of this case from juvenile court to circuit court for trial, a Tipton County
jury convicted the defendant, sixteen-year old Howard Jefferson Atkins, of first-degree premeditated
murder. The trial court subsequently ordered the defendant to serve a life sentence with the
possibility of parole. The defendant now brings this direct appeal of his conviction, challenging: (1)
whether the trial court properly denied his motion to suppress his pre-trial statements to police; (2)
whether the state’s peremptory strike of four female jurors violated Batson v. Kentucky, 476 U.S.79
(1986); (3) whether the state improperly extracted a promise from the jury during voir dire; (4)
whether the trial court erred by allowing the victim’s son to offer certain testimony regarding the
victim’s peaceable character; (5) whether the trial court erred by failing to give a curative instruction
following the victim’s son’s testimony; (6) whether the trial court erred by allowing testimony
describing the graphic nature of photos that the court ruled were inadmissible because of their overly
prejudicial nature; (7) whether the trial court erred by allowing the medical examiner to testify that
she had retained certain bones from the victim’s body for forensic pathology; and (8) whether the
evidence is sufficient to support the defendant’s conviction for first degree murder. After reviewing
the record and applicable law, we find that none of the defendant’s allegations merit relief and
accordingly affirm the judgment of the lower court.

                 Tenn. R. App. P. 3; Judgment of the Trial Court is Affirmed.

JERRY L. SMITH, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JAMES
CURWOOD WITT, JR., JJ., joined.

C. Michael Robbins and Leslie Ballin, Memphis, Tennessee, for the appellant, Howard Jefferson
Atkins

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; Elizabeth
Rice, District Attorney General; and James W. Freeland, Jr., Assistant District Attorney General, for
the appellee, State of Tennessee.
                                              OPINION

                                        Factual Background

         On April 16, 2000, the defendant, Howard Jefferson Atkins, returned home to his mother and
step-father’s house after a weekend with his father. His step-father, the victim, was outside his home
when the defendant returned, and the sounds of his mother crying were audible from outside the
home. The victim greeted the defendant by telling him to “[g]o in there and take care of your mother
like you always do.” The defendant testified that the victim had been abusing his mother throughout
their relationship, which spanned four years. The defendant also testified that the victim had been
emotionally abusive of him, as well, and had hit him on several occasions. After this exchange with
the victim, the defendant went inside and comforted his mother, who told the defendant that she
planned on divorcing the victim and wanted to leave the house soon. She later took a pain pill and
went to sleep in the defendant’s room.
         Some time that evening, the defendant went into the victim’s bedroom, where the victim was
asleep. The defendant claimed that he intended to speak with the victim and ask him to leave the
house for a few days so that he and his mother could leave the house peaceably. The defendant
initially brought a baseball bat and chair leg with him for protection from the defendant during this
conversation, but entered the victim’s bedroom with only the baseball bat. The defendant testified
that after several minutes of pleading, the victim refused his request and threatened to kill him.
According to the defendant, the victim then reached, or so the defendant believed, for a gun which
was kept in the night stand drawer. In reaction to this threat, the defendant swung at the victim with
his baseball bat, hitting him between nine to twelve times in the head, killing the defendant and
smashing his skull. The defendant then began to clean up the victim’s blood and moved his body
and bed mattress outside so that his mother would not awake to see the blood. The defendant then
called his father and confessed his crime, and his father advised him to call 911. The defendant did
so, and the police arrived shortly thereafter. Once the defendant opened the door, the police secured
him on the front porch and asked him if there were any firearms in the house. During the time the
defendant was on the front porch with a police officer, he made statements about the events that
transpired that night, specifically that he hit the victim because he feared for his life and feared that
the victim was reaching for a gun to shoot him.
         At trial, the state introduced the testimony of police officers who had searched the crime
scene and who testified that they did not locate a handgun in either of the night stands in the victim’s
bedroom or anywhere in the house. The state also introduced character evidence of the victim’s
peaceable nature, specifically testimony from his children, former wives, a cousin, a friend, and an
employee. The defense introduced testimony from the defendant’s father, former teachers, youth
ministers, and parents of his friends, all of whom testified regarding the defendant’s peaceable
character. Additionally, the defendant testified on his own behalf.
         At the close of proof, the jury found the defendant guilty of premeditated first degree murder,
and the trial court accordingly sentenced the defendant to serve life with the possibility of parole.
The defendant now brings this direct appeal of his conviction challenging, as outlined above, (1)
whether the trial court properly denied his motion to suppress; (2) whether the state’s peremptory
strike of four female jurors violated Batson; (3) whether the state improperly extracted a promise


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from the jury during voir dire; (4) whether the trial court erred by allowing the victim’s son to offer
certain testimony regarding the victim’s peaceable character; (5) whether the trial court erred by
failing to give a curative instruction following the victim’s son’s testimony; (6) whether the trial
court erred by allowing testimony describing the graphic nature of photos that the court ruled were
inadmissible because of their overly prejudicial nature; (7) whether the trial court erred by allowing
the medical examiner to testify that she had retained certain bones from the victim’s body for
forensic pathology; and (8) whether the evidence is sufficient to support the defendant’s conviction
for first degree murder. We will address in turn each basis for appeal.


                              Suppression of Defendant’s Statement

         The defendant complains that the trial court erred by denying his motion to suppress his pre-
trial statements made to the police during custodial interrogation. The defendant claims that he did
not fully understand the rights read to him pursuant to Miranda; he believed that he was entitled to
have an attorney present at trial but not during custodial interrogation. The defendant claims that
his youth, combined with his extreme nervousness at the time of his interview, his limited
understanding of his Miranda warnings based on knowledge gained through television programs, and
assurances by police that if he were to talk with police, everything would be “okay,” demonstrates
that the defendant did not make a knowing and voluntary waiver of his Miranda rights.
         Our standard of review for a trial court’s findings of fact and conclusions of law on a motion
to suppress evidence is set forth in State v. Odom, 928 S.W.2d 18 (Tenn. 1996). Under this standard,
“a trial court’s findings of fact in a suppression hearing will be upheld unless the evidence
preponderates otherwise.” Id. at 23. As is customary, “the prevailing party in the trial court is
afforded the ‘strongest legitimate view of the evidence and all reasonable and legitimate inferences
that may be drawn from that evidence.’” State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting
State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998)). Nevertheless, this Court reviews de novo the trial
court’s application of the law to the facts, without according any presumption of correctness to those
conclusions. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher, 989 S.W.2d
295, 299 (Tenn. 1999).
         As aforementioned, the defendant argues that the trial court erroneously denied his motion
to suppress the allegedly involuntary incriminating statement that he made to the police. The Fifth
Amendment to the United States Constitution provides in part that “no person . . . shall be compelled
in any criminal case to be a witness against himself.” U.S. Const. amend. V. Similarly, Article I,
Section 9 of the Tennessee Constitution states that “in all criminal prosecutions, the accused “. . .
shall not be compelled to give evidence against himself.” Tenn. Const. art. I, § 9. However, an
accused may waive this right against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444, 86
S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966). In Miranda, the United States Supreme Court held that
a suspect must be warned prior to any questioning that he has the right to remain silent, that anything
he says can be used against him in a court of law, that he has the right to the presence of an attorney,
and that if he cannot afford an attorney, one will be appointed for him prior to any questioning if he
so desires. Miranda, 384 U.S. at 479. The Supreme Court held that a suspect may knowingly and
intelligently waive the right against self-incrimination only after being apprised of these rights. Id.


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Accordingly, for a waiver of the right against self-incrimination to be held constitutional, the accused
must make an intelligent, knowing, and voluntary waiver of the rights afforded by Miranda. Id. at
444. A court may conclude that a defendant voluntarily waived his rights if, under the totality of the
circumstances, the court determines that the waiver was uncoerced and that the defendant understood
the consequences of waiver. State v. Stephenson, 878 S.W.2d 530, 545 (Tenn. 1994).

        In State v. Callahan, 979 S.W.2d 577 (Tenn. 1998), the Tennessee Supreme Court held:
        that juvenile waivers shall be analyzed under a totality-of-the-circumstances test that
        requires consideration of the following factors:
        (1) . . . all circumstances surrounding the interrogation including the juvenile’s age,
        experience, education, and intelligence;
        (2) the juvenile’s capacity to understand the Miranda warnings and the consequences
        of the waiver;
        (3) the juvenile’s familiarity with Miranda warnings or the ability to read and write
        in the language used to give the warnings;
        (4) any intoxication;
        (5) any mental disease, disorder, or retardation; and
        (6) the presence of a parent, guardian, or interested adult.

Id. at 583. The supreme court further provided that “[w]hile courts shall exercise special care in
scrutinizing purported waivers by juvenile suspects, no single factor such as mental condition or
education should by itself render a confession unconstitutional absent coercive police activity.” Id.
        In its order denying the defendant’s motion to suppress, the trial court found that the
defendant confessed to the instant crime voluntarily and after being fully advised of his constitutional
rights. Specifically, the trial court found that the circumstances surrounding the defendant’s decision
to waive his rights and make a statement to the police indicate that the defendant was not
intimidated, coerced, or deceived into relinquishing those rights. The defendant was given the
Miranda warnings, read them, and signed the waiver. The trial court characterized his demeanor as
“calm and cooperative” and noted that the defendant’s father was present with him during the
interrogation. The trial court also noted that while the defendant was sixteen-years-old at the time
of the interrogation, he is of above-average intelligence and “indicated no reason why he could not
comprehend what rights he was relinquishing.” The court further noted that the defendant was
questioned within a few hours of the incident and that the interrogating officer noted that the
defendant did not appear sleepy or in less than full command of his faculties. After reviewing the
record, we find that the evidence does not preponderate against these findings of fact and accordingly
accredit them. Applying them to the standard for determining the voluntariness of a defendant’s
statement outlined above, we find that the trial court properly denied the defendant’s motion to
suppress his incriminating statements made to police.




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                Propriety of Peremptory Strike of Female Prospective Jurors

       The defendant argues that the trial court allowed the state to exercise four impermissible
peremptory challenges of female prospective jurors because all four challenges were based on the
gender of the jurors. In Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986),
the United States Supreme Court held that “the equal protection clause forbids the prosecutor to
challenge jurors solely on account of their race.” Id. at 89. In J.E.B. v. Alabama, ex rel. T.B., 511
U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994), the Court extended the Batson prohibition to
peremptory strikes based on gender, as well. Id. at 130-31.
       More recently in State v. Spratt, 31 S.W.3d 587 (Tenn. Crim. App. 2000), this Court
addressed the policy reasons for prohibiting race- or gender-based peremptory strikes and the
procedure for invoking the protection created by Batson and J.E.B.

       “The peremptory challenge is one of the oldest established rights of the criminal
       defendant.” United States v. Annigoni, 96 F.3d 1132, 1136 (9th Cir.1996). For more
       than one hundred years, the United States Supreme Court has recognized that
       peremptory challenges are “an essential part of the trial.” Lewis v. United States, 146
       U.S. 370, 376, 13 S. Ct. 136, 138, 36 L. Ed. 1011 (1892). The Supreme Court has
       also stated that the right of peremptory challenge is “one of the most important of the
       rights secured to the accused.” Pointer v. United States, 151 U.S. 396, 408, 14 S. Ct.
       410, 414, 38 L. Ed. 208 (1894). The importance of the right to make peremptory
       challenges is demonstrated by the extraordinary remedy courts have traditionally
       afforded to an accused who was deprived of the right: reversal of conviction, without
       a showing of prejudice. Lewis, 146 U.S. at 376, 13 S. Ct. at 138. “Peremptory
       challenges, along with challenges for ‘cause,’ are the principal tools that enable
       litigants to remove unfavorable jurors during the jury selection process.” Annigoni,
       96 F.3d at 1137. “The central function of the right of peremptory challenge is to
       enable a litigant to remove a certain number of potential jurors who are not
       challengeable for cause, but in whom the litigant perceives bias or hostility.” Id.
       “The function of the [peremptory] challenge is not only to eliminate extremes of
       partiality on both sides, but to assure the parties that the jurors before whom they try
       the case will decide on the basis of the evidence placed before them, and not
       otherwise.” Swain v. Alabama, 380 U.S. 202, 219, 85 S. Ct. 824, 835, 13 L. Ed. 2d
       759 (1965), overruled on other grounds, Batson, 476 U.S. 79, 106 S. Ct. 1712, 90 L.
       Ed. 2d 69.

Spratt, 31 S.W.3d 597-98.

               To invoke the protections of Batson and its progeny, the [proponent of a
       Batson challenge] must establish a prima facie case that a juror is being challenged
       on the basis of race. Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769, 1770-71,
       131 L. Ed. 2d 834 (1995); Batson, 476 U.S. at 93-94, 106 S. Ct. at 1721. Once the
       [proponent of the Batson challenge] has presented a prima facie case, the trial court


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        shall require the [opponent] to give a race-neutral reason for the challenge. Purkett,
        514 U.S. at 767, 115 S. Ct. at 1770-71; McCollum, 505 U.S. at 59, 112 S. Ct. at
        2359. “The race or gender neutral explanation need not be persuasive, or even
        plausible . . . . Unless a discriminatory intent is inherent in the [opponent’s]
        explanation, the reason offered will be deemed race neutral.” Purkett, 514 U.S. at
        767, 115 S. Ct. at 1770-71. If a race or gender neutral explanation is given, the court
        must then determine, given all the circumstances, whether the proponent has
        established purposeful discrimination. Purkett, 514 U.S. at 767, 115 S. Ct. at 1770-
        71; Batson, 476 U.S. at 96-98, 106 S. Ct. at 1723-24.

                “The trial judge must carefully articulate specific reasons for each finding on
        the record, i.e., whether a prima facie case has been established; whether a neutral
        explanation has been given; and whether the totality of the circumstances support a
        finding of purposeful discrimination.” Woodson v. Porter Brown Limestone Co.,
        Inc., 916 S.W.2d 896, 906 (Tenn. 1996). “The trial court’s factual findings are
        imperative in this context.” Id. “On appeal, the trial court’s findings are to be
        accorded great deference and not set aside unless clearly erroneous.” Id. (citation
        omitted). “Thus, specificity in the findings is crucial.” Id.

Spratt, 31 S.W.3d at 595-96.

         In the instant case, after the prosecutor exercised peremptory challenges to excuse four
female potential jurors from the venire, defense counsel objected. After the defendant argued to the
court that the prosecutor had dismissed these four jurors on the basis of their gender, the prosecutor
responded by explaining his rationale for having dismissed the four potential jurors. Specifically,
the prosecutor recounted that he struck two of the potential jurors because they had been “raised by
single parents or in dysfunctional sort[s] of households.” The prosecutor explained that the third
potential juror at issue knew one of the defense witnesses and that her son was a friend of the
defendant. The fourth potential juror, according to the prosecutor, did not have the intellectual
ability to follow some important arguments that would be raised by both the state and the defense.
At the conclusion of the prosecutor’s explanation, the trial court responded that it accepted the
prosecutor’s reasons and resumed empaneling the jury.
         The defendant now complains that (1) the prosecutor’s reasons for dismissing the four female
potential jurors were insufficient to establish a race-neutral motivation and (2) the trial court did not
state its findings supporting its decision to accept the prosecutor’s reasons for dismissing the
potential jurors with sufficient specificity, as required by Spratt. With regard to the defendant’s first
complaint, that the prosecutor’s reasons for dismissing the four potential jurors were unpersuasive,
we again note that “[t]he race or gender neutral explanation need not be persuasive, or even plausible
. . . . Unless a discriminatory intent is inherent in the [proponent’s] explanation, the reason offered
will be deemed race neutral.” Purkett, 514 U.S. at 767. We find that a discriminatory intent is not
inherent in the prosecutor’s reasons for dismissing the four jurors. Rather, the prosecutor explained
his motivation for dismissing each potential juror, and we find that the prosecutor’s reasons do not
inherently evidence a discriminatory intent.


                                                  -6-
        Turning next to the defendant’s argument that the trial court’s ruling lacked the specificity
required by Woodson v. Porter Brown Limestone Co., Inc., we agree that the trial court’s finding
overruling the defendant’s Batson objection was not made with the requisite specificity. As
discussed above, the bench conference in which the defendant’s objection was raised, discussed, and
overruled was fairly short. The defendant objected, arguing that the prosecutor’s peremptory strikes
of four female potential jurors established a prima facie case of discrimination. The prosecutor then
responded by outlining his gender-neutral reasons for excusing the four potential jurors, and the trial
court responded by stating that it accepted the prosecutor’s reasons and concluded the bench
conference. However, while we agree that specificity in the trial court’s findings would have been
appropriate and greatly aided our review of this issue on appeal, we nevertheless find that the trial
court acted reasonably by deciding to accept the prosecutor’s race-neutral reasons for dismissing the
potential jurors, therefore implicitly finding that the state did not act with purposeful discrimination.
Thus, this issue lacks merit.


                 Propriety of Promise Extracted by the State from the Venire

        The defendant argues that the state improperly extracted a promise from potential jurors that
if they were selected to serve as jurors during the defendant’s trial, they would not consider the
potential culpability of any other individuals besides the defendant. Recognizing that he failed to
object to this statement when made, the defendant argues that this Court should find that the state’s
statement constitutes plain error because it prevented the defendant from introducing a defense that
another was culpable for the defendant’s crime, specifically that the defendant acted under the
influence of his mother. The state counters by arguing first that the defendant has waived this issue
on appeal by failing to make a contemporaneous objection, secondly arguing that the statement does
not constitute plain error, and thirdly arguing that the statement did not deny the defendant his right
to present a defense.
        During voir dire, the prosecutor made the following statements to the venire:

                 Finally, and this happens on occasion, and because the State really does not
        know how the case will unfold from the defendant’s point of view, we know how the
        case is going to unfold from the State’s point of view, but there is a possibility that,
        in effect, someone else may be put on trial.
                 Do we understand that the trial, if you are chosen as a juror today, will be
        based strictly on the guilt or not guilty [sic] of that young man seated there with the
        sweater (indicating), Howard Jefferson Atkins, Jeff Atkins?
                 That is, you may hear and you may believe, I don’t know, but you may hear
        and may believe that someone in addition to Mr. Atkins is either criminally
        responsible or morally responsible or should have done a better thing. And I’ll be
        honest with you, it may be the mother, Karen Atkins. She may be put informally on
        trial for bad parenting or something.
                 Would you each promise to listen carefully to the proof as it develops against
        Jeff Atkins? And we’ll have enough other things to consider. We’ll have enough


                                                  -7-
       things to prove. Would you promise to leave anything on anybody else, their guilt
       or innocense or culpability or responsibility, leave that to some other time and some
       other place, and judge this case on the guilt or innocence, which gets down to
       whether the State has carried its burden of proof against that young man there in the
       sweater (indicating)? Would you do that?

 The record indicates that the prospective jurors gave affirmative responses at the end of this inquiry.
         We first note that, as the defendant correctly stipulates, he has waived this argument on
appeal by failing to make a contemporaneous objection to the prosecutor’s remarks at trial. See
Tenn. R. App. P. 36(a). However, this Court may still consider this issue if the defendant establishes
plain error. In order to review an issue under the plain error doctrine, five factors must be present:
(1) the record must clearly establish what occurred in the trial court; (2) a clear and unequivocal rule
of law must have been breached; (3) a substantial right of the defendant must have been adversely
affected; (4) the accused did not waive the issue for tactical reasons; and (5) consideration of the
error is necessary to do substantial justice. See State v. Adkisson, 899 S.W.2d 626, 641 (Tenn. Crim.
App. 1994); see also Tenn. R. Crim. P. 52(b).
         The defendant argues that the prosecutor’s remarks precluded him from presenting the
defense theory that he acted as his mother’s agent, as opposed to acting under his own will when he
killed the victim, and therefore that he is less culpable for the crime that he committed. It is hard to
discern the prosecutor’s intent when making the statements at issue. The defendant claims that the
prosecutor was attempting to extract a promise from the venire that they refuse to consider the
potential culpability of any other individual other than defendant for this crime. The state counters
that the prosecutor was not trying to extract an improper promise, but rather to explain that it is not
a jury’s job to find another guilty or innocent of the indicted charge, but to instead determine if the
state had met its burden of proving the guilt of the accused. After reviewing the prosecutor’s
statement to the venire, we note that regardless of his intentions, the prosecutor’s remarks were
misleading. The prosecutor asked the venire to preclude from its consideration the potential “guilt
or innocense or culpability or responsibility” of any other person other than the defendant, a subject
well within the purview of jury consideration. See State v. Kilburn, 782 S.W.2d 199, 204 (Tenn.
Crim. App. 1989) (“Where, as in this case, a defendant attempts to raise a third party defense, he is
allowed to present proof tending to show that another had the motive and opportunity to have
committed the offense. Where the proof is consistent with this hypothesis it is to be considered by
the jury.”)
         However, while we agree with the defendant’s contention that the prosecutor extracted an
improper promise from the venire, we do not agree that this error adversely affected a substantial
right of the defendant. The prosecutor’s remarks to the venire did not preclude the defendant from
introducing a defense theory that another was culpable for his crime. Rather, a defendant may
attempt to introduce evidence in support of a defense theory, and the trial court, not the prosecutor,
acts as the gate-keeper regarding the admissibility of that evidence. See State v. Dubose, 953 S.W.2d
649, 652 (Tenn. 1997). From our review of the record, it does not appear that the defendant
attempted to introduce evidence to support a defense theory that the defendant’s mother or someone
besides the defendant was culpable for his crime. The defendant’s mother did not testify at the
defendant’s trial. This appears to have been a tactical decision on the part of defense counsel,


                                                  -8-
designed to prevent the prosecution from impeaching the defendant’s mother with evidence
suggesting that she planted a handgun in one of her night stand drawers after the murder in an effort
to exonerate her son. Accordingly, because the defendant did not attempt to introduce such a defense
theory at trial and because the prosecutor’s comments, while improper, did not prevent him from
doing so, we find that this issue does not constitute plain error and therefore cannot form a basis for
relief.


      Admissibility of Testimony Regarding the Victim’s Character for Peaceableness

         The defendant argues that the trial court improperly allowed the state to introduce evidence
of the victim’s character for peaceableness. At the time that the state offered this proof, the defense
had not yet introduced evidence regarding the victim’s character. The defendant argues that this
testimony regarding the victim’s character was inappropriately introduced before the victim’s
character had been put at issue by the defense. The defendant objects to this testimony not solely
because it was introduced at an improper time, but rather mainly because the testimony is irrelevant
and immaterial in light of how remote the incidents recounted in the testimony were to the period
of time at issue in this case.
         Rebuttal testimony is “that which tends to explain or controvert evidence produced by an
adverse party.” Cozzolino v. State, 584 S.W.2d 765, 768 (Tenn. 1979). Furthermore, rebuttal
testimony includes “[a]ny competent evidence which explains or is a direct reply to, or a
contradiction of, material evidence” introduced by an adverse party. Nease v. State, 592 S.W.2d
327, 331 (Tenn. Crim. App. 1979); see also State v. Smith, 735 S.W.2d 831, 835 (Tenn. Crim. App.
1987). “Like any other evidence, rebuttal evidence must be relevant and material to the facts at issue
in the case.” State v. Lunati, 665 S.W.2d 739, 747 (Tenn. Crim. App. 1983). However, rebuttal
evidence should be introduced after the adverse party introduces the evidence to be rebutted, as
“[o]ne cannot rebut a proposition that has not been advanced.” Cozzolino, 584 S.W.2d at 768.
Nevertheless, the premature introduction of rebuttal evidence may be made harmless by the
subsequent introduction of evidence that could properly be rebutted by the prematurely offered
rebuttal proof. Id. The admission or rejection of rebuttal evidence is a matter within the discretion
of the trial court, and a trial court’s decision regarding the admissibility of rebuttal evidence will not
be overturned absent a clear abuse of discretion. State v. Scott, 735 S.W.2d 825, 828 (Tenn. Crim.
App. 1987). In the instant case, when the state’s first witness, Raymond Conway, the victim’s son
by his first marriage, was testifying, the prosecutor asked Mr. Conway questions regarding the
victim’s nature, specifically seeking information about his character for peaceableness and how he
had disciplined the witness and his siblings, half-siblings, and step-siblings when this witness lived
with the victim. The trial court allowed the state to offer this testimony over the defendant’s
objection after learning that the defense planned to introduce evidence regarding the victim’s
character for violence when presenting its case-in-chief. We agree with the defendant that the trial
court erred by allowing the state to introduce this evidence at this stage of the trial. The proper
procedure would have been for the court to order the state to reserve the presentation of its rebuttal




                                                   -9-
evidence until after the defense presented the issue that the testimony was offered to rebut.1
However, per Cozzolino, we find that this error was made harmless by the defendant’s introduction
of evidence concerning the victim’s violent actions later in the trial. See Cozzolino, 584 S.W.2d at
768.
         We next turn to the defendant’s contention that the trial court should not have admitted the
witness’s rebuttal testimony because it was both immaterial and irrelevant. The defendant argues
that the trial court should have sustained his objection to the proffered testimony because the witness
was testifying about events twenty-six years prior to the event at issue, the victim’s death. As noted
above, the witness, who is the victim’s son by his first marriage, testified about his relationship with
the victim and the victim’s treatment and discipline of him and other children while the witness lived
with the victim.
         Evidence must be relevant and probative to an issue at trial in order to be admissible. State
v. McCary, 922 S.W.2d 511, 515 (Tenn. 1996); see also Tenn. R. Evid. 402. Evidence is relevant
if it has “any tendency to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the evidence.” Tenn. R. Evid.
401. However, relevant evidence may be excluded at trial if the probative value of that evidence “is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury . . . .” Tenn. R. Evid. 403. The determination of relevancy is left to the discretion of the trial
court, and this Court will not overturn a trial court’s determination in this regard in the absence of
an abuse of discretion. State v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995).
         The defendant argues that the testimony at issue is irrelevant because it concerns a period of
time far removed from the victim’s death. However, we find that the testimony was relevant because
it addressed the peaceable nature of the victim and the manner in which the witness observed the
victim treat his former spouses and parent both his children and his step-children. This subject was
put at issue by the defense, who argued that the defendant killed the victim in self-defense because
the victim’s actions towards the defendant and the defendant’s mother had been menacing and
therefore put the defendant in fear of his life. The trial court did not abuse its discretion in finding
this evidence relevant.
         Moreover, during cross-examination, defense counsel asked the witness several questions
whose answers informed the jury that the witness was testifying about a period of time
approximately twenty-six years ago, that the witness had no contact with the victim seven months
prior to his death and had only limited contact with both the defendant and the defendant’s mother
while they lived with the victim. Therefore, we find that even if admission of this evidence had
been erroneous the thorough cross-examination allowed for the jury itself to determine the
remoteness and therefore the weight to be ascribed to it. Therefore any error would be at most
harmless.




         1
           Our ruling is limited to holding that the trial court erred in admitting the evidence before the defense put on
proof of the victim’s violent character. Had the state waited until after the defense proof of the victim’s character, the
state’s proof of peaceable character traits would have been admissible in rebuttal. See, Tenn. R. Evid. 404(a)(2).

                                                          -10-
         Necessity of a Curative Instruction after the Testimony of Ray Conway, Jr.

         In a related issue, the defendant argues that the trial court erred by failing to give the jury a
curative instruction after it sustained his objection to improper testimony that the prosecutor elicited
from Ray Conway, Jr. The testimony at issue concerns Mr. Conway’s comments regarding how
much he loved his father and that his father did not deserve to die in the manner in which he died.
The defendant failed to request a curative instruction after the court sustained his objection to this
testimony and has therefore waived the issue on appeal. See Tenn. R. App. P. 36(a). However, he
argues that we should find that the trial court’s failure to give a curative instruction to the jury
constitutes plain error.
         As discussed supra, in order to establish plain error, this Court must find five factors present:
(1) the record must clearly establish what occurred in the trial court; (2) a clear and unequivocal rule
of law must have been breached; (3) a substantial right of the defendant must have been adversely
affected; (4) the accused did not waive the issue for tactical reasons; and (5) consideration of the
error is necessary to do substantial justice. See State v. Adkisson, 899 S.W.2d 626, 641 (Tenn. Crim.
App. 1994); see also Tenn. R. Crim. P. 52(b).
         The defendant complains that the trial court erroneously failed to give a curative instruction
to the jury after the following colloquy took place on the record:

        [Prosecutor]:           Is there anything else you want to share with the jury?
        [Mr. Conway]:           Yeah.
        [Defense Counsel]:      Object to the form of the question.
        [Mr. Conway]:           I would just like to say that I loved my father very much –
        [The Court]:            Excuse me just a second. The objection will be sustained. If
                                you would like to ask a specific question, you may.
        [Prosecutor]:           Did you ever see or observe your father do anything to merit
                                being beaten to death with an aluminum baseball bat?
        [Defense Counsel]:      I object.
        [Mr. Conway]:           He was never justified to die like this. I lived with him for
                                over 42 years –
        [The Court]:            The objection will be sustained.

        The defendant argues that the prosecutor’s insistence on eliciting irrelevant and prejudicial
testimony after the trial court sustained his objection and the fact that the testimony was designed
to appeal to the jury’s emotions and passions merited a curative instruction by the trial court. While
we agree with the trial court that the prosecutor’s questions were improper, we do not find that the
error was so egregious as to make a curative instruction mandatory. The crux of this witness’s
testimony was that the witness and the victim had a good relationship; the victim was never abusive
of the witness, nor did the witness observe the victim abusing others. Therefore, we cannot find that
the witness’s statements that he loved his father and that he believed his father did not deserve to die
in the manner in which he did were so different from his admissible testimony as to be so
inflammatory that a curative instruction was absolutely necessary. Accordingly, we find that the



                                                  -11-
defendant has not demonstrated that this Court should consider this issue in order to do substantial
justice. Thus, we again find no plain error and hold that this issue has been waived.


                         Propriety of Agent Roger Turner’s Testimony

         The defendant argues that the trial court improperly allowed Agent Roger Turner of the
Tennessee Bureau of Investigation to describe, in his testimony, the graphic nature of several
photographs of the deceased victim and crime scene although the court had earlier ruled these
photographs inadmissible. During Agent Turner’s testimony, defense counsel requested a bench
conference to review whether the trial court would allow the admission of certain graphic
photographs of the victim. Pre-trial, defense counsel had requested that certain photographs be
suppressed due to their highly prejudicial and inflammatory nature. The trial court granted defense
counsel’s motion and suppressed those photographs. After the trial court made its ruling, the
prosecutor asked the court for permission to allow him to ask various witnesses to describe the
scenes depicted in these photographs without allowing the jury to view the photographs. Defense
counsel stated that he would leave this issue to the discretion of the trial court, and the trial court
requested that an objection be made before the prosecutor elicited the descriptions from his witnesses
so that the court could rule on this issue at that time. However, defense counsel did not object when
the prosecutor asked Agent Turner to describe the scenes in the suppressed photographs.
         Because defense counsel never objected to Agent Turner’s testimony in which he described
these photographs, the defendant has waived this issue on appeal. See Tenn. R. App. P. 36(a).
However, the defendant argues again that this court should consider this issue by finding that the trial
court committed plain error by allowing Agent Turner to describe the scenes depicted in the
suppressed photographs.
         In an analogous case, State v. Eugene A. Turner, No. W1999-01866-CCA-R3-CD, 2000 WL
1473857 (Tenn. Crim. App. at Jackson, Oct. 2, 2001), this Court addressed the propriety of witness
descriptions of graphic photographs that were not introduced into evidence. Specifically, the Court
addressed the defendant’s challenge to the trial court’s decision to allow a TBI Agent and the state’s
forensic pathologist to describe crime scene photographs of the victims. Id. at *5. The defendant
argued that the descriptions of the crime scene photographs “were irrelevant and just as prejudicial
as the photographs” themselves. Id. Furthermore, the defendant argued that the descriptive
testimony was cumulative because the forensic pathologist testified about the nature and extent of
the victims’ injuries, making “the descriptions of the blood splatters and gruesome details of the
wounds” unnecessary. Id. This court concluded that the descriptions of the photographs should be
analyzed under the same standard used for reviewing a trial court’s decision to admit or suppress
photographs, leaving the admissibility of the photograph descriptions to the sound discretion of the
trial court. Id. The court’s ruling on this issue will only be overturned on appeal upon the showing
of an abuse of discretion. Id. However, “the testimony must be relevant to an issue at trial with its
probative value outweighing any prejudicial effect that it may have upon the trier of fact.” Id. After
determining the appropriate standard of review, the court then found that the descriptions of the
photographs were indeed relevant and therefore properly admitted because they “corroborate[d] the
medical testimony and [gave] the jury a proper description of the crime scene.” Id. at *6.


                                                 -12-
        We find that the analysis employed by the Turner Court is equally applicable to the case at
bar. Similarly to Turner, in the instant case the medical examiner testified about the nature and
extent of the victim’s injuries. We find that although the medical examiner described the victim’s
injuries, Agent Turner’s descriptions of the injuries depicted in pictures of the victim’s body were
not duplicative of the medical examiner’s testimony, but rather corroborated the medical examiner’s
testimony and gave the jury a description of the crime scene. Without viewing the graphic
photographs, the jury was given a description of the crime scene that the photographs depict. We
find that the trial court’s allowing Agent Turner to describe the crime scene was substantially less
prejudicial to the defendant than if the jury had been allowed to view the photographs in question.
Accordingly, we find that the defendant has not demonstrated that this Court should find that the trial
court committed plain error by allowing the admission of this descriptive testimony in order to
effectuate substantial justice. See State v. Adkisson, 899 S.W.2d 626, 641 (Tenn. Crim. App. 1994);
see also Tenn. R. Crim. P. 52(b).


                          Propriety of Medical Examiner’s Testimony

         The defendant argues that the trial court erred by overruling his objection and allowing the
medical examiner to testify that pursuant to the autopsy of the victim’s body, the medical examiner’s
office retained the victim’s skull, the wrist bone, and some finger bones for forensic pathology. The
defendant submits that this statement was irrelevant to any issue before the jury and unduly
prejudiced him by conveying to the jury that the victim’s entire remains were not available for his
burial, thereby inflaming the passions of the jury.
         When evaluating a trial court’s ruling on a Tennessee Rule of Evidence 403 motion to
exclude evidence, the initial inquiry is whether the evidence offered was relevant to the case under
Tennessee Rule of Evidence 401.

       The determination of whether evidence is relevant, or, if relevant, should be excluded
       for one of the reasons set forth in Rule 403, addresses itself to the sound discretion
       of the trial court. State v. Hill, 885 S.W.2d 357, 361 (Tenn. Crim. App. 1994). In
       deciding these issues, the trial court must consider, among other things, the questions
       of fact that the jury will have to consider in determining the accused’s guilt as well
       as other evidence that has been introduced during the course of the trial.

State v. Dulsworth, 781 S.W.2d 277, 287 (Tenn. Crim. App. 1989). A trial court’s determination
regarding the relevancy of evidence will be reversed only upon a showing of abuse of discretion.
State v. DuBose, 953 S.W.2d 649, 654 (Tenn. 1997). Once a trial court determines that the evidence
is relevant under Rule 401, the court should not exclude the evidence unless “its probative value is
substantially outweighed by the danger of unfair prejudice.” Tenn. R. Evid. 403. Our supreme court
has stated that unfair prejudice is “[a]n undue tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one.” DuBose, 953 S.W.2d at 654 (citing State
v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978)); see also State v. McCary, 922 S.W.2d 511, 515
(Tenn. 1996).


                                                 -13-
        In State v. Banks, the supreme court recognized the “policy of liberality in the admission of
evidence in both civil and criminal cases.” Banks, 564 S.W.2d at 949. When implementing the
supreme court’s policy, the trial court must weigh the probative value of the evidence against its
potential prejudicial effect. Furthermore, this Court cannot substitute its judgment for that of the
trial court or declare error absent a finding that the trial court abused its discretion. State v.
Robinson, 930 S.W.2d 78, 85 (Tenn. Crim. App. 1995) (citing State v. Melson, 638 S.W.2d 342
(Tenn. 1982)).
        In the case at bar, the prosecutor initially requested that the trial court allow him to introduce
the preserved victim’s skull, which the medical examiner had brought with her to trial. After hearing
argument from both the prosecutor and defense counsel, the trial court denied the prosecutor’s
request, finding that the probative value of showing the jury the victim’s skull would have been
outweighed by its prejudicial effect. After the trial court made this ruling, the prosecutor then
requested that he be allowed to question the medical examiner about the victim’s finger bones, wrist
bone, and skull, which the medical examiner’s office had retained after the victim’s burial in order
to study them more thoroughly. The prosecutor argued that the information was relevant to the issue
of the thoroughness of the medical examiner’s autopsy and agreed that if allowed to ask these
questions, he would not ask the medical examiner to show the jury these bones or indicate whether
she had brought the bones with her to trial. The trial court subsequently granted the prosecutor’s
request.
        We find that the trial court properly allowed the medical examiner’s testimony on this issue
because the testimony, in context, demonstrated that the medical examiner’s findings were not
rushed, but rather the result of an extended period of study. Specifically, the medical examiner
agreed with the prosecutor’s assertion that keeping these bones after the remainder of the victim’s
body was released for burial allowed her perform the autopsy over an extended period of time. She
further elaborated that the pathological analysis and examination of the deceased’s tissues sometimes
takes weeks to perform and evaluate the results. Additionally, the retention of these bones allowed
her to carefully examine the fractures in these bones and determine the sequence and severity of the
blows that caused those fractures. Accordingly, we respectfully disagree with the defendant’s
contention that this testimony is irrelevant. Furthermore, we find that this testimony, which did not
include an introduction of the victim’s actual bones, was not so prejudicial to the defendant as to
outweigh the probative value of the testimony. Therefore, we find that this issue lacks merit.


                                        Sufficiency Challenge

        In his final issue, the defendant challenges the sufficiency of the evidence introduced at trial
to support his conviction for first-degree premeditated murder. When a defendant challenges the
sufficiency of the evidence, this Court is obliged to review that claim according to certain
well-settled principles. A verdict of guilty, rendered by a jury and “approved by the trial judge,
accredits the testimony of the” state’s witnesses and resolves all conflicts in the testimony in favor
of the state. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54,
75 (Tenn. 1992). Thus, although the accused is originally cloaked with a presumption of innocence,
the jury verdict of guilty removes this presumption “and replaces it with one of guilt.” State v.


                                                  -14-
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the
defendant to demonstrate the insufficiency of the convicting evidence. Id.
        The relevant question the reviewing court must answer is whether any rational trier of fact
could have found the accused guilty of every element of the offense beyond a reasonable doubt. See
Tenn. R. App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the state
“the strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that
may be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-
weighing or reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929
S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Moreover, we may not substitute our own “inferences for those drawn by the trier of fact
from circumstantial evidence.” Matthews, 805 S.W.2d at 779.
        In the instant case, the defendant specifically challenges the sufficiency of the evidence to
support a finding of premeditation. Tennessee Code Annotated section 39-13-202(a)(1) defines first
degree murder in pertinent part as “a premeditated and intentional killing of another.” Tennessee
Code Annotated section 39-13-202(d) provides:

       As used in subdivision (a)(1) “premeditation” is an act done after the exercise of
       reflection and judgment. “Premeditation” means that the intent to kill must have been
       formed prior to the act itself. It is not necessary that the purpose to kill pre-exist in
       the mind of the accused for any definite period of time. The mental state of the
       accused at the time the accused allegedly decided to kill must be carefully considered
       in order to determine whether the accused was sufficiently free from excitement and
       passion as to be capable of premeditation.

Tenn. Code Ann. § 39-13-202(d). Therefore, in order to convict the defendant of his indicted offense,
the State was required to prove beyond a reasonable doubt that the defendant attacked the victim
with “premeditation.”
          “[W]hether premeditation is present is a question of fact for the jury, and it may be inferred
from the circumstances surrounding the” commission of the crime. State v. Billy Gene Debow, Sr.,
No. M1999-02678-CCA-R3-CD, 2000 WL 1137465, at *4 (Tenn. Crim. App. at Nashville, Aug. 2,
2000); see also State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997); State v. Anderson, 835 S.W.2d
600, 605 (Tenn. Crim. App. 1992). Some relevant factors that tend to support the existence of
premeditation include: “the use of a deadly weapon upon an unarmed victim; the particular cruelty
of the killing; declarations by the defendant of an intent to kill; evidence of procurement of a
weapon; preparations before the killing for concealment of the crime, [ ] calmness immediately after
the killing,” and evidence that the victim was retreating or attempting to escape when killed. Bland,
958 S.W.2d at 660; see also State v. West, 844 S.W.2d 144, 148 (Tenn.1992). “[T]he fact that
repeated blows (or shots) were inflicted on the victim is not sufficient, by itself, to establish first-
degree murder.” State v. Brown, 836 S.W.2d 530, 542 (Tenn. 1992).
          After a thorough review of the record, we find that there was sufficient evidence introduced
at trial to support a finding that the defendant acted with premeditation. First, the state introduced
evidence that the defendant used a deadly weapon, namely his baseball bat, on an unarmed victim.
See Bland, 958 S.W.2d at 660. He had carried the bat and another club to the bedroom with him for


                                                 -15-
the confrontation with the victim. While the defendant argued that he believed that the victim was
reaching for a weapon when he hit the victim, the jury apparently chose not to accredit this testimony
and to reject the defendant’s self-defense theory, as evidenced by their verdict of first degree
premeditated murder. Furthermore, the police performed a thorough search of the victim’s night
stands, where the defendant claimed the victim stored a gun, the victim’s bedroom, and the entire
house. During their search, the police did not recover a handgun. Accordingly, we find that a
rational trier of fact could have found that the defendant used his weapon on an unarmed victim.
See Tenn. R. App. P. 13(e); Harris, 839 S.W.2d at 75.
         Secondly, the state also introduced evidence that the victim’s killing was particularly cruel.
See Bland, 958 S.W.2d at 660. According to the medical examiner, the victim sustained between
nine and twelve forceful blows, which mutilated his face, caving in his skull and exposing brain
matter. The medical examiner also testified that the victim lived for two to three minutes after the
initial bleeding began. Furthermore, she characterized some of the victim’s injuries as defensive
wounds, indicating that the victim made some attempts at self-defense after the attack began. Based
on this evidence, we find that a rational trier off act could have found that the defendant killed the
victim with particular cruelty. See Tenn. R. App. P. 13(e); Harris, 839 S.W.2d at 75.
         Third, through his own testimony, the defendant recounted that he procured a weapon,
namely his baseball bat, and brought that weapon with him to the victim’s room. See Bland, 958
S.W.2d at 660. The defendant claimed that he brought this weapon with him to the victim’s room
as a measure of protection. However, as noted above, the jury chose not to accredit the defendant’s
self-defense theory and instead convicted the defendant of first-degree premeditated murder.
Accordingly, viewing the evidence in the light most favorable to the state, we find that a rational trier
of fact could have found that the defendant procured a weapon and brought it to the murder scene.
See Tenn. R. App. P. 13(e); Harris, 839 S.W.2d at 75. Evidence of planning activity is paramount
to a finding of premeditation beyond a reasonable doubt. See State v. Ricky A. Burks, No. M2000-
00345-CCA-R3-CD, 2001 WL 567915, at *18 (Tenn. Crim. App. at Nashville, May 25, 2001) (“The
absence of planning activity and the absence of the events immediately preceding the killing militate
against proof of premeditation or that the Appellant killed according to a preconceived design.
Absent the element of premeditation, the Appellant’s conviction for first-degree murder cannot
stand.”).
         Finally, the state also introduced evidence that the defendant exhibited calmness after the
killing. See Bland, 958 S.W.2d at 660. According to his testimony, after the killing, the defendant
did not awaken his mother, but began to clean up the crime scene. The defendant cleaned up the
victim’s blood and moved the victim’s body and blood-soaked mattress outside into the yard.
Approximately an hour after the incident, the defendant called his father, who advised him to call
911. The defendant then did so and greeted the police at the door when they arrived during his 911
phone call. Viewing this evidence in the light most favorable to the state, we find that a rational trier
of fact could have found that the defendant exhibited calmness after the murder. See Tenn. R. App.
P. 13(e); Harris, 839 S.W.2d at 75.
         In sum, based on all of the above factors, we find that the record supports a finding that the
defendant acted with premeditation when killing the victim. Therefore, the defendant’s sufficiency
challenge lacks merit.



                                                  -16-
                                         Conclusion

      For the foregoing reasons, we find that none of the defendant’s allegations merit relief.
Accordingly, the judgment of the trial court is AFFIRMED.



                                                    ___________________________________
                                                    JERRY L. SMITH, JUDGE




                                             -17-
