         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  November 19, 2002 Session

        STATE OF TENNESSEE v. WENDELL CLARKE CHAMBERS

                   Direct Appeal from the Circuit Court for Stewart County
                        No. 04-1303-CR-00     Allen W. Wallace, Judge



                     No. M2001-02674-CCA-R3-CD - Filed April 22, 2003


Following a jury trial, the defendant was found guilty of first degree premeditated murder and
reckless homicide. The reckless homicide conviction was merged with the murder conviction and
the defendant was sentenced to life imprisonment. The defendant appeals, arguing that the evidence
was insufficient to support his conviction and that the trial court erred in overruling his motions for
judgment of acquittal and in allowing a videotape and photograph of the crime scene into evidence.
Finding no error, we affirm the judgment of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID H. WELLES and JOE G.
RILEY, JJ., joined.

Jerry C. Colley, Columbia, Tennessee, for the appellant, Wendell Clarke Chambers.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Dan M. Alsobrooks, District Attorney General; and Carey J. Thompson, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                                               FACTS

       Carol Mathis, a dispatcher for the Stewart County Sheriff’s Department, testified that she
received a 9-1-1 call from the defendant, Wendell Clarke Chambers, at 10:44 p.m. on August 17,
2000, the defendant stating, in part:

               DEFENDANT: My girlfriend has been beaten to death and robbed.

               911: Your girlfriend? She hit you?
               ....

               DEFENDANT: No. No. We’ve been robbed. We’ve been robbed.
               Somebody knocked our door in and they beat us and robbed us. I
               don’t know her condition.

               911: Okay.

               DEFENDANT: Please, I need 9-1-1. I don’t know how she is. As to
               what’s wrong, I can’t see.

        Stewart County Sheriff’s Chief Deputy Derrick Wyatt testified that he was dispatched to the
defendant’s residence at 10:44 p.m. on August 17, 2000, in response to a breaking and entering
complaint. He arrived at the scene at the same time as Deputy Marcus Brigman and Patrolman
Donnie Deal. As the others stayed back, Chief Deputy Wyatt approached the front of the defendant’s
trailer where he was confronted with a screen door that was latched from the inside. When he
knocked and identified himself, the only response he received was from the defendant’s dog, which
was “throwing a fit” inside the screened-in porch. To enter the screened-in porch, he “pulled the
latch loose from the door,” and the barking dog “darted out the door.” Chief Deputy Wyatt described
what he encountered next:

               As I approached the entrance to the trailer, there was a storm door on
               the trailer. I observed it closed. And the main entrance door . . . was
               open approximately 18 inches. As I approached closer where I could
               see over the bottom of the storm door, I observed from about the
               knees down of two white . . . legs and what appeared to be
               bloodstains on the legs and around them.

He looked for blood tracks leading out of the trailer and saw none which, in addition to the door
being locked from the inside, led him to believe that the perpetrator might still be inside. Upon
entry, the officers saw a “white female that appeared to be deceased” lying face up on the floor and
a white male, identified as the defendant, lying face down against the couch. After a protective
sweep of the other rooms, officers determined that there was no one else in the trailer.

        Chief Deputy Wyatt testified that, because the defendant noticeably was breathing, he had
one of the paramedics enter the trailer to check on the defendant while he secured the crime scene.
They rolled the defendant over onto his back and began to medically examine him and ask what had
happened. In a conversation that went “in and out,” the defendant said that “a man broke into the
house, hit me in the head with a boat paddle,” and then the defendant “fell over face first in [sic] the
floor and . . . put his body in a jerking motion, . . . a floppy motion on the floor.” Chief Deputy
Wyatt described what happened next:




                                                  -2-
                         I looked at the EMTs because I have no idea what’s going on,
                and undoubtedly they did not either. They looked back at me with the
                same expression. [The defendant] did this for a few seconds, stopped
                as quick as it started . . . raised his head, looked at the EMTs and said
                I’m having a seizure, went right back into this, lasted again a few
                seconds. He stopped again just as quick as he started, kind of turned
                his head to the EMTs again and he says, look, I’m having a seizure,
                do you not know what a seizure is, went back into this motion again
                in [sic] the floor.

                       At that time the EMT, Mr. Wright, starts instructing that he’s
                not having a seizure, that he needs to sit up, explain to him what’s
                happening so he can take care of him.

The defendant appeared to have a scratch on his head and, aside from an open brown bathrobe, was
naked. The victim was “totally nude.” As to the defendant’s appearance, Chief Deputy Wyatt
testified that “[t]he first thing that jumped out to me was all the blood that was surrounding the body
and was also on the body of [the victim]. The first obvious thing that stood out was how clean [the
defendant] was.”

        Chief Deputy Wyatt searched the crime scene area for a visible sign of entry, the boat paddle,
and the weapon that had been used to kill the victim, who had stab wounds “all over her body.” In
the kitchen, he observed bloodstains on the cabinets, diluted blood in water in the ice cube trays in
the sink, and blood on dishes and utensils that were in the sink. Also in the sink were a chipped
plastic bowl and the corresponding chip, which appeared to have hair and blood on it. A “large black
handled knife with what appeared to be bloodstains on the handle” was found in a kitchen drawer.
A towel with what appeared to be bloodstains was found in the bathroom. Although the call he
received was for a forcible entry, Wyatt was unable to find any evidence of a break-in into the trailer.

        Deputy Marcus Brigman of the Stewart County Sheriff’s Department testified that he was
dispatched to the defendant’s residence on August 17, 2000, about a “possible home invasion.”
While Chief Deputy Wyatt was at the front door of the trailer, Deputy Brigman peered through a
back window, testifying: “At the foot of the door I seen [sic] a nude female body, I could see about
mid-torso down. She was covered in blood. There was blood all over the carpet.” The victim, who
had “a severe cut across her throat,” was “obviously deceased” and the defendant, who had “no
visible wounds,” was lying face down between the couch and the floor. Deputy Brigman entered the
kitchen where he observed blood on the cabinet and, in a drawer, found a “black long-handled knife”
with what appeared to be blood mixed with water on the handle. He could not find any evidence of
a break-in.

        Stewart County Sheriff John Vincent testified that, upon arrival at the scene, he paid
particular attention to search for bloody footprints or hand prints left in or out of the trailer and did
not see either. He found a bloody pair of men’s boxer shorts on a chair by the door. He testified that


                                                  -3-
a bloody knife found in the kitchen drawer “appeared to match wounds that was in the victim.”

       Paul Wright, a paramedic, testified that he was dispatched to the defendant’s trailer on
August 17, 2000, “on a possible home invasion call.” He explained how the defendant “was
conscious but . . . wasn’t acting that way”:

              A. I noticed his eyes twitching a whole lot and that’s not usually
              right with someone that’s unconscious. Their eyes will move, you’ll
              see them move, but it’s how a small kid will shut his eyes and try to
              keep them closed to try to fool you.

                    At that time I did a sternum rub and I got a reaction. I was
              trying to see if he was conscious or not because the only injury I saw
              was just a couple of scrapes here on his head.

              ....

                    If somebody’s unconscious, deep unconscious and you do a
              sternum rub, it’s irritating . . . it’s a standard way of checking to see
              if someone is conscious. If they’re unconscious, you won’t get any
              kind of reaction out of that person. If they’re conscious even to a
              slight . . . degree, they’re going to move their arms.

              ....

              Q. What else did you do to determine whether or not he was
              conscious?

              A. I tested motor sensor activity. If you take a person unconscious
              and take their hand above their head and you drop the hand . . . it will
              free fall and just land as anything would if you dropped it.

                     But if a person’s conscious, then it will be a controlled fall and
              if it will miss the head, then it’s controlled, it’s controlled movement.

              Q.     In response to the sternum rub, what did [the defendant] do?

              A. He moved to the side a little bit, turned his arms and he
              squeezed his eyes tighter.

              Q.     And when you dropped his arm, what did he do?

              A.     He controlled the fall beside his head.


                                                -4-
               Q.    And what did that indicate to you?

               A.    It indicated to me that it was very likely he was conscious.

               Q.    Did you do anything else to try to see what his condition was?

               A. Yes, sir, I rubbed his eyes and just made him squeeze down
               tighter, close them tighter.

Wright, who had by now determined that the defendant was conscious, ordered him to “open up his
eyes and talk.” The defendant opened his eyes and stated that he had been hit on the head with a boat
paddle. Wright found no injuries on the defendant other than two lacerations on his forehead.

        The defendant informed Wright that he had a “seizure disorder” and shortly thereafter “rolled
back over face down to the ground and started bouncing his hips up and down off the ground.” As
Wright stood back and watched, the defendant stopped shaking and asked, “Don’t you know what
a fucking seizure is?” before he “continued on with the voluntary movement of his pelvic area.”
According to Wright, legitimate seizures typically involve, among other things, uncontrollable
violent head-to-toe jerking, urination, defecation, and an inability to talk, none of which the
defendant experienced. Wright testified that, in his twenty years of employment as a paramedic, he
had seen “very many” real and fake seizures and, based on his training and experience, the defendant
did not have a real epileptic seizure. The defendant was transported to the hospital and, while in the
ambulance, asked about the victim and then about his dog, at which point he got “very, very upset.”

        Captain Dale Fulgram of the Stewart County Ambulance Service testified that he and Paul
Wright responded to the call at the defendant’s residence on August 17, 2000. As he tried to
examine the defendant, the defendant repeatedly exclaimed, “Quit treating me like a criminal. I
didn’t do anything wrong. I didn’t kill anybody.” Then, the defendant made a “humping motion
with his hips up and down on the floor” and, as Fulgram expressed confusion about what he was
seeing, the defendant said, “It’s an epileptic seizure, you dumb mother-fucker. Don’t you know a
seizure when you see one?” As Fulgram and other emergency medical workers were transporting
the defendant to the ambulance, the defendant said, “I’ll hack you up, mother-fucker.”

       Rebecca Brewster, a registered nurse at the Henry County Medical Center, testified that the
defendant had “a minor scrape across his forehead,” was “restless and angry,” and “smelled strongly
of alcohol” when he was brought in for treatment. The defendant said, “Don’t touch me, bitch”
when Brewster attempted to examine him. She described his appearance:

                     He was received to us initially nude except for a bath[robe]. He
               was clean. His skin was clean. He had a little dried blood on the
               abrasion [on] his head, but he had more blood dried around his
               fingernails and on his feet, the soles of his feet. And his toenails, his



                                                 -5-
               nail area, he had a lot of . . . what looked like blood inconsistent with
               such a minor abrasion . . . on his head.

The defendant initially refused to have his blood drawn, stating, “I know my rights. You cannot have
my blood to pin this killing on me. I want my lawyer.” The defendant’s blood alcohol level was
0.14%.

       Dr. Robert Stevenson testified that he was the treating physician at the Henry County Medical
Center and that the results of the CAT scan performed on the defendant’s head were “normal.”
According to his diagnosis, it was unlikely that the defendant had suffered any injury sufficient to
render him unconscious. Dr. Stevenson said if the defendant had been struck hard enough on the
head with a boat paddle to result in unconsciousness, he would “expect to find some area that’s [a]
swollen area of impact with some significant swelling.” Neither the CAT scan results nor the
photograph taken of the defendant an hour and a half after the incident showed such swelling.

         Special Agent Joe Craig, a Tennessee Bureau of Investigation (“TBI”) criminal investigator,
testified that he participated in the investigation of the defendant’s residence. He saw no evidence
of a forcible entry or bloody tracks leading out of the trailer although he “took careful detail in
looking” and “spent a pretty good amount of time with a flashlight out there looking for any
indication . . . of blood . . . on the deck . . . that would have been carried from the inside out.” He
testified that the fresh water in the sink indicated to him that someone, between the time the 9-1-1
call was made and the officers’ arrival, had cleaned or run the faucet. From the crime scene, he
collected as evidence from a kitchen drawer a black-handled fillet knife, which appeared to have
blood and hair on it; a chipped plastic bowl, also with blood and hair, from the kitchen sink; and a
pink bath towel, appearing to have blood on it, which he found draped across the shower rod in the
back bathroom. Also in the sink, he found a chip which fit the bowl.

        TBI Special Agent Margaret Bash, a forensic serologist, testified that she performed DNA
tests on the evidence recovered from the defendant’s residence. She said that blood on the towel
found in the bathroom matched that of the defendant, and that on the blade and handle of the knife
from the kitchen drawer matched the blood of the victim. While the defendant was “the major
contributor,” the victim could not be excluded as “a minor contributor” of the genetic material found
on the chipped bowl taken from the sink. The genetic material on the chip from the bowl was “a
mixture” of that of the defendant and the victim.

        Dr. Charles Harlan, the assistant medical examiner and consulting forensic pathologist for
Stewart County, testified that he performed the autopsy of the victim, whose death was the “result
of multiple stab wounds and incisions.” An external examination of the victim revealed “multiple
incisions and stab wounds on various surfaces of the body,” contusions to the face and head, a
laceration to the face, and incisions on the hands. The incisions on the victim’s hands were
“consistent with someone grabbing a knife blade in a defensive type of maneuver.” The victim had
twenty-four stab wounds all over her body, including her neck, some of which were six inches deep.
Several of the stab wounds penetrated internal organs, including four to the liver and three to the


                                                 -6-
lungs. The stab wounds caused a “considerable loss of blood into body cavities,” amounting to forty
percent of the victim’s total blood volume, not including the blood lost externally. The injuries
would have “caused enough bleeding so that she would have died of blood loss in about ten (10)
minutes,” eight of which she would have been conscious. Dr. Harlan testified that the bloodstained
knife found in the kitchen drawer was “consistent with an object which could have produced all of
the wounds” on the victim.

         Testifying as the only defense witness, the defendant said that he and the victim were
drinking gin and scotch and watching television when they heard a vehicle enter their driveway. A
black male, whom the victim referred to as “Jimmy,” got out of the vehicle and approached the
trailer.1 The victim let the man inside and explained that she owed him $300 for a drug-related debt.
According to the defendant’s testimony, when he informed the man that he did not have the money,
the assailant “opened this long coat and he pulled this boat paddle out and he struck me across the
head.” The next thing the defendant remembered was waking up, seeing the victim in a pool of
blood, calling 9-1-1, and then passing out. Sometime thereafter, he regained consciousness, realizing
that he was surrounded by police and paramedics. He testified that he is an epileptic with a history
of seizures.

                                                   ANALYSIS

                                        I. Sufficiency of the Evidence

       The defendant argues that the evidence was insufficient to support his first degree murder
conviction, contending that the State failed to prove premeditation.

        In considering this issue, we apply the familiar rule that where sufficiency of the convicting
evidence is challenged, the relevant question of the reviewing court is “whether, after viewing 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, 61 L. Ed. 2d 560, 573 (1979); see also State v. Evans, 838 S.W.2d 185,
190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992); Tenn. R.
App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall be set
aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a
reasonable doubt.”). All questions involving the credibility of witnesses, the weight and value to be
given the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge,
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory
of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the
rationale for this rule:



         1
          Sheriff Vincent testified that a person looking out of the window on the front of the trailer would have been
unable to see a car pull up to the trailer.

                                                         -7-
                     This well-settled rule rests on a sound foundation. The trial
               judge and the jury see the witnesses face to face, hear their testimony
               and observe their demeanor on the stand. Thus the trial judge and
               jury are the primary instrumentality of justice to determine the weight
               and credibility to be given to the testimony of witnesses. In the trial
               forum alone is there human atmosphere and the totality of the
               evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)). A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

      The defendant was convicted of first degree premeditated murder, which is defined in
Tennessee Code Annotated section 39-13-202(a)(1), (d) (1997) as:

               (1) A premeditated and intentional killing of another;

               (d) 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.

        The presence of premeditation is a question of fact for the jury to determine based upon a
consideration of all the evidence. See State v. Suttles, 30 S.W.3d 252, 261 (Tenn.), cert. denied, 531
U.S. 967, 121 S. Ct. 401, 148 L. Ed. 2d 310 (2000). Premeditation may be inferred from
circumstantial evidence surrounding the crime, including the manner and circumstances of the
killing. See State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998); State v. Addison, 973 S.W.2d 260,
265 (Tenn. Crim. App. 1997). Several factors tend to evidence premeditation:

               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, and calmness immediately after
               the killing.

State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997) (citations omitted).


                                                 -8-
        The defendant argues that the State failed to prove premeditation, saying that it cannot be
established simply because death resulted from multiple stab wounds or attempts to conceal the
crime.

        Taken in the light most favorable to the State, the evidence showed the following: the
defendant, armed with a butcher knife, cut or stabbed the victim twenty-four times, with the cuts on
the front of her body spread from her lower abdomen to her neck, which had a five-and-one-half-inch
incision on the front and four-and-one-half-inch and three-inch incisions on the side and rear. She
had twelve incisions between her upper and lower chest and four in her back, in addition to what
were described as defensive incisions and contusions on her hands and wrists. The victim would
have been conscious for about eight minutes after the attack and lived for ten minutes. The knife
used to kill the victim apparently had been rinsed with water and put in a kitchen drawer, and the
defendant, in the bathroom, had washed off the victim’s blood. After calling 9-1-1 for assistance,
the defendant pretended to be having an epileptic seizure as he told responding officers, who found
the door latched from the inside, that he and the victim had been attacked by an intruder wielding
a boat paddle.

        In considering this issue, we will review decisions in which our supreme court determined
that a defendant’s premeditation had been shown by combinations of the use of a deadly weapon
upon an unarmed victim, coolness after the killing, and an attempt to conceal it. Our supreme court,
in Bland, 958 S.W.2d at 660, concluded that premeditation had been established by the defendant’s
shooting the unarmed victim three separate times during the chase, then going to watch the nearby
beating and robbery of another unarmed victim, whom the defendant shot twice, the defendant then
getting rid of the gun and going to his girlfriend’s house to sleep. These facts established the
defendant’s use of a deadly weapon to repeatedly shoot an unarmed victim and his calmness
immediately thereafter, thus showing premeditation.

        Similarly, in State v. Nichols, 24 S.W.3d 297, 299 (Tenn. 2000), as the victim and defendant
were arguing, the defendant “rose from the [kitchen] table, went toward the kitchen sink, and
retrieved a knife from the drain rack,” stabbing the victim “twice in her abdomen and once in her
upper left chest.” Later, “[t]wo freshly washed knives” were found behind the kitchen sink. Id.
Concluding that the State sufficiently had proven premeditation, the court noted the “violent and
physically abusive relationship” of the victim and the defendant and explained the significance of
the facts of the killing:

                     Viewing the evidence and inferences therefrom in a light most
               favorable to the State, this Court finds sufficient evidence to support
               the jury's finding of both premeditation and deliberation. . . . In
               committing the murder, Nichols rose from the table at which the
               couple were arguing, went toward the kitchen sink, selected a knife
               from the drain rack, and stabbed Oakley three times, each time
               inflicting a life threatening injury. Afterward, Nichols apparently
               washed the victim's blood from the knife.


                                                -9-
                     Each of these factors is relevant to either premeditation,
               deliberation, or both. See Pike, 978 S.W.2d at 914-15; Bland, 958
               S.W.2d at 660. Thus, the evidence before the jury, while not
               overwhelming, was sufficient to support findings of both
               premeditation and deliberation.

Id. at 302-03 (footnote omitted).

         The defendant argues that the holdings in State v. West, 844 S.W.2d 144 (Tenn. 1992), and
State v. Ricky A. Burks, No. M2000-00345-CCA-R3-CD, 2001 WL 567915 (Tenn. Crim. App. May
25, 2001), perm. to appeal denied (Tenn. Oct. 29, 2001), compel our finding that the evidence was
insufficient to prove premeditation. However, we respectfully disagree with the defendant’s
characterization of the holdings of these cases. In West, a single “distant gunshot wound” killed the
victim, with the defendant then waiting an hour and a half before calling police, during which time
he hid the weapon and went about his business. 844 S.W.2d at 147. The defendant claimed that he
was threatened by the victim, who was armed with a crowbar. The court concluded the defendant’s
indifference after the killing and his hiding of the murder weapon did not establish premeditation.
In Burks, the victim’s body, in a state of decomposition, was found on a couch on the front porch
of a vacant house. 2001 WL 567915, at *2. The medical examiner testified that there were
“multiple contusions” on her body and abrasions on her left arm and neck, consistent with a “weapon
of some sort.” Id. at *5. The cause of death was a subdural hematoma, caused by the “twisting and
tearing of the head and moving about of the head.” Id. The proof showed that the defendant had
severely beaten the victim on at least one prior occasion. On appeal, this court affirmed the trial
court’s entry of a judgment of acquittal for first degree murder and of a judgment for second degree
murder, concluding that premeditation was not established by the defendant’s repeated blows with
a deadly weapon to the victim.

        We distinguish the facts of both West and Burks from those of the matter which we now
review because, here, the defendant used a deadly weapon to inflict multiple wounds on the unarmed
victim in her neck, chest, abdomen, and back and who was conscious for approximately eight
minutes as she was bleeding to death, the defendant then taking elaborate efforts after the crime to
make it appear that an intruder was responsible, showing his calmness after the crime. Accordingly,
we conclude the holdings in Bland and Nichols are controlling, and the evidence taken in the light
most favorable to the State allowed a reasonable trier of fact to find beyond a reasonable doubt that
the defendant, with premeditation, killed the victim.

                    II. Overruling of Motions for Judgment of Acquittal

         The defendant argues that the trial court erred in overruling his motions for judgment of
acquittal on Count Two of the indictment which were made at the close of the State’s proof and at
the conclusion of all the evidence. In Count Two, the defendant was charged with felony murder for
the killing of another committed in the attempt to perpetrate aggravated rape. See Tenn. Code Ann.
§§ 39-13-202(2), -502(a) (1997). However, as to this count, the jury found the defendant guilty of


                                                -10-
the lesser-included offense of reckless homicide, which was merged into the conviction for first
degree murder. Accordingly, even if the trial court erred, as the defendant argues, in overruling the
motion for judgment of acquittal as to this offense, the error was harmless.

                III. Admissibility of Crime Scene Photograph and Videotape

       The defendant argues that the trial court improperly allowed a crime scene photograph and
videotape into evidence. He filed a motion in limine urging the trial court to exclude the videotape
and any photograph that depicted any part of the nude body of the victim on the grounds that the
evidence was inflammatory and unduly prejudicial.

        The contested photograph was taken before the body was disturbed and depicts the naked
victim on her back surrounded by blood. Several stab wounds to the midsection and a wound to the
throat are visible in the photograph. The videotape shows the entire crime scene before it was
disturbed, including the outside of the trailer, the screened-in porch, and apparently every room
inside, orienting the viewer to the general layout of the crime scene while intermittently focusing on
specific evidence, such as a bloodstain on the wall, for example. The victim’s body is briefly on the
screen several times incidental to the subject of focus in the shot. Twice the victim’s body is the
intended focal point. The first time, the viewer sees only the victim’s legs through the front door,
apparently showing how the scene would have appeared to the officers who arrived first; and, the
second time, the camera panned over the victim’s body a few times, giving a close-up view of her
wounds. Each of these two shots lasted roughly twenty seconds within approximately eleven and
a half minutes of video footage.

        The admissibility of authentic, relevant photographs, or a videotape of a crime scene or
victim, is within the sound discretion of the trial judge, and the court’s ruling on the admissibility
of such evidence will not be overturned without a clear showing of abuse of discretion. State v.
Teague, 645 S.W.2d 392, 397 (Tenn. 1983). To be admissible, a photograph or videotape must be
relevant to some issue at trial, and its probative value must outweigh undue prejudicial effect. State
v. Lacy, 983 S.W.2d 686, 694 (Tenn. Crim. App. 1997); Neil P. Cohen et al., Tennessee Law of
Evidence § 4.01[18] (4th ed. 2000). "Relevant evidence" means evidence having 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. Although
relevant, evidence may be excluded if its probative value is substantially outweighed by the danger
of unfair prejudice. Tenn. R. Evid. 403.

       The trial court excluded several photographs of the victim as cumulative but allowed into
evidence the disputed photograph, explaining:

               I can understand why . . . one of these pictures could possibly have a
               probative value with Dr. Harlan testifying in the case.

               ....


                                                -11-
               I’m going to admit 8e. While it’s a gruesome picture, I think it does
               have its probative value and I think the probative value is not
               substantially outweighed by its danger of unfair prejudice.

       The trial court also explained why the jurors would be allowed to view the videotape:

               [The State] has alluded to the fact that they’ve got statements from
               the defendant that’s going to be read, that he never went to the
               bathroom . . . . He didn’t go clean up. He got to the phone and made
               a 911 call and went right back off again. But we know that you
               represented to the jury and to me that his blood was found up there in
               the sink by DNA testing.

                     So when I take all that in effect I think this jury just must see
               that crime scene because . . . [t]his has a tendency to make the
               existence of a fact as a consequence of determination of an act more
               probable or less probable than it would be without the evidence. I
               think the jury needs to see it.

        Thus, the trial court found both the photograph and videotape to be relevant under Rule 401.
The trial court expressly determined that the photograph passed the Rule 403 balancing test, and it
was implicit in the findings as well that the probative value of the videotape was not substantially
outweighed by the danger of unfair prejudice.

        Arguing that the trial court erred in allowing into evidence the photograph and videotape, the
defendant relies on State v. Collins, 986 S.W.2d 13, 21 (Tenn. Crim. App. 1998), in which this court
concluded that the prejudice substantially outweighed any probative value of six color photographs
of a bruised, bloodied, nude, infant victim. The facts of that case are distinguishable, however, from
the facts before us as, here, only one photograph and a videotape were admitted; the victim was an
adult; and the evidence had probative value.

        Additionally, the defendant relies on State v. Banks, 564 S.W.2d 947, 952 (Tenn. 1978),
wherein our supreme court determined that the prejudicial effect of crime scene photographs
depicting the victim's battered head and body outweighed their probative value, the probative value
being “slight” because the photographs were taken after the body had been moved from the scene
so that the condition of the ground, which was relevant, was not shown. Id. Here, by contrast, the
photograph and videotape were of the undisturbed crime scene as it appeared when the police arrived
and showed the condition of the floor and the conspicuous absence of bloody footprints leaving the
trailer. The fact that the State sought to prove circumstantially, based upon evidence found
throughout the residence, that no intruder had come into the trailer, but the defendant had killed the
victim is a further reason for admission of the photograph and videotape.



                                                -12-
         We agree with the trial court that the photograph and videotape were properly admissible.
Both were probative as to whether an intruder had committed the murder and left the trailer without
tracking blood and whether the defendant made efforts to conceal that he had committed the crime.
Additionally, the photograph and videotape clarified testimony about the crime scene as well as Dr.
Harlan’s testimony as to the victim’s injuries. See Banks, 564 S.W.2d at 950-51 (traditional rule in
murder prosecutions is that photographs of the corpse are admissible, subject to Rule 403 balancing,
if they are relevant to the issues on trial, notwithstanding their gruesome and horrifying character);
State v. Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993) (crime scene videotape that depicted the
victims’ bodies as found was highly probative, admissible, and not cumulative when photographs
of the victims were also admitted); State v. Duncan, 698 S.W.2d 63, 69 (Tenn. 1985) (photographs
showing blood, a bloody trail, the victim's body as found, and a fatal throat wound were not
gruesome and served to supplement and clarify oral testimony describing the crime scene).

       Accordingly, we conclude that the trial court did not abuse its discretion in admitting either
the photograph or the videotape. This argument is without merit.

                                          CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the judgment of the trial court.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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