         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    October 17, 2000 Session

                   STATE OF TENNESSEE v. LARRY COULTER

                 Direct Appeal from the Circuit Court for Rutherford County
                            No. F-43611    J. Steve Daniel, Judge



                      No. M1999-00784-CCA-R3-CD - Filed June 26, 2001


The appellant, Larry Coulter, appeals his conviction by a jury in the Rutherford County Circuit Court
of one count of first degree premeditated murder. For his offense, the appellant received a sentence
of life imprisonment in the Tennessee Department of Correction. In this appeal, the appellant
presents the following issues for our review: (1) whether the trial court erred in failing to disqualify
the office of the District Attorney General for the Sixteenth Judicial District from participating in
the appellant’s case; (2) whether the trial court erred in denying the appellant’s pre-trial motion to
suppress a statement that he made to officers of the La Vergne Police Department following his
offense; (3) whether the trial court erred in denying the appellant’s pre-trial motion to suppress the
fruits of a warrantless search of his home by officers of the La Vergne Police Department; (4)
whether the trial court erred in denying the appellant’s pre-trial motion to exclude from evidence
notes and letters written by the appellant to the victim prior to this offense; (5) whether the trial court
erred in denying the appellant’s pre-trial motion to exclude from evidence any proof of the victim’s
plans to move away from the Coulters’ mobile home; (6) whether the trial court erred in overruling
the appellant’s objection to testimony by Sybil Victory concerning a telephone conversation; (7)
whether the trial court erred in overruling the appellant’s Tenn. R. Evid. 615 objection to testimony
by Fawn Jones; (8) whether the trial court erred in overruling the appellant’s objection to testimony
by the State’s firearms identification expert concerning a bullet recovered from the victim’s body;
(9) whether the trial court erred in permitting each member of the jury to “dry-fire” the murder
weapon during the State’s case-in-chief; (10) whether the trial court erred in permitting a State’s
witness to testify by deposition pursuant to Tenn. R. Crim. P. 15; (11) whether the trial court erred
in permitting the State to impeach the appellant’s psychologist with a “learned treatise” without
satisfying the requirements of Tenn. R. Evid. 618; (12) whether the trial court erred in overruling the
appellant’s objection to rebuttal testimony by the State’s psychologist that violated Tenn. R. Crim.
P. 12.2(c); (13) whether the trial court erred in failing to charge the jury with certain special
instructions requested by the appellant; (14) whether the trial court erred in permitting the State to
alter or amend an exhibit immediately prior to the jury’s deliberations; (15) whether the evidence
adduced at trial is sufficient to support the jury’s verdict; and (16) whether the cumulative effect of
any errors requires the reversal of the appellant’s conviction and the remand of this case for a new
trial. Following a review of the record and the parties’ briefs, we affirm the judgment of the trial
court.
     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which THOMAS T. WOODALL and
ROBERT W. WEDEMEYER , JJ., joined.

Darrell L. Scarlett and Michael A. Myers, Murfreesboro, Tennessee, for the appellant, Larry Coulter.

Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General;
William C. Whitesell, Jr., District Attorney General; and J. Paul Newman, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION

                                       Factual Background
                On January 6, 1998, a Rutherford County Grand Jury indicted the appellant, Larry
Coulter, for first degree premeditated murder. The indictment arose from the shooting death of the
appellant’s wife, Robin Coulter, on December 3, 1997, at the Coulters’ mobile home in La Vergne,
Tennessee. At the appellant’s trial, the State established that the appellant and his wife had been
married for approximately two years. The Coulters had no children together, although Ms. Coulter
had a son by a prior relationship who was living with his grandmother at the time of this offense.
Both of the Coulters were employed, the appellant as a security guard by a local company named
Brentwood Security and Patrol and Ms. Coulter as a clerk by a local market known as “The Pantry.”

                 Tommy Thompson, the owner of Brentwood Security and Patrol, testified on behalf
of the State at the appellant’s trial. Thompson stated that, at the time of this offense, the appellant
had attained the rank of “captain” in Thompson’s company. The appellant’s duties included the
supervision of three or four patrol officers in addition to several officers assigned to stationary posts.
Thompson further testified that, due to his employment as a security guard, the appellant possessed
a “written directive” to carry a Taurus .38 Special revolver, was trained in the use of the Taurus .38
Special revolver, and was qualified as a “police sharpshooter.” According to Thompson, the
appellant did “an excellent job” for Brentwood Security and Patrol.

                 However, Thompson also recalled that, prior to the instant offense, the appellant
informed Thompson that he was experiencing marital difficulties and complained to Thompson
concerning his lack of sexual relations with his wife. Moreover, approximately two weeks prior to
his offense, the appellant exhibited a “change of attitude” at work. Mack Rinehart, III, another
employee of Brentwood Security and Patrol, specifically recalled that, during the weeks immediately
preceding Ms. Coulter’s murder, the appellant appeared to be “just a little bit down” and was “more
or less silent.”

                Christopher Alexander, a lieutenant with Brentwood Security and Patrol, confirmed
at the appellant’s trial that, prior to Ms. Coulter’s murder, the appellant was complaining of marital


                                                   -2-
difficulties. According to Alexander, the appellant appeared to be very bitter about his relationship
with his wife and frequently referred to his wife as a “b**ch.” Alexander further recalled:
                [W]ithin the last three months of [his wife’s] life, [the appellant]
                would make statements to myself and other people to the fact that she
                was giving him a hard time. And the statements he would make, If
                she tries to take my trailer, I’ll kill the b**ch. If she tries - - I’m
                getting tired of her. She won’t leave me alone. I can’t get no rest. I
                think I’ll just go on and kill the b**ch.
Alexander stated that he was so troubled by the appellant’s threats to kill Ms. Coulter that he visited
the appellant’s wife at her workplace one evening, informed her about the appellant’s threats, and
“warn[ed] her that she might not want to push [the appellant].”

                Two more co-workers of the appellant, Baron Hightower and Robert Cadwallader,
likewise testified that, on several occasions prior to killing Ms. Coulter, the appellant voiced his
dissatisfaction with his marriage. Specifically, the appellant expressed to his co-workers doubts
concerning his wife’s fidelity.

               Michael Hills, Ms. Coulter’s fifteen-year-old son, also testified at the appellant’s trial.
Hills recounted that he lived with his mother and stepfather for approximately one year until June
15, 1997. He recalled that, during much of this time, his mother and stepfather communicated
primarily through notes or letters, and, approximately six months prior to Hills’ departure, they
“discontinued sleeping together.” Moreover, as a further example of the ongoing discord between
his mother and stepfather, Hills testified that the appellant did not permit his mother to use the
telephone in their home “freely.” According to Hills, the appellant informed his wife that the
telephone “was in his name and she wasn’t allowed to use it.”

               Sybil Victory, a friend of Ms. Coulter, related to the jury that, at the time of the
appellant’s offense, she had known Ms. Coulter for approximately three years. During that time,
Victory had never met the appellant, spoken with the appellant, nor visited the Coulters’ home.
However, in June or July 1997, Victory telephoned her friend “at home.” A man initially answered
the telephone before surrendering the receiver to Ms. Coulter. During her ensuing telephone
conversation with Ms. Coulter, Victory could hear the same man screaming at Ms. Coulter in the
background. Victory recalled that “[the man] was yelling at [Ms. Coulter] in the background, that
she was not allowed to have phone calls, that was his phone, and he was yelling obscenities at her.”
According to Victory, Ms. Coulter referred to this man as “Larry” during the telephone conversation.
Victory further noted that, on the day following this telephone conversation, Ms. Coulter purchased
a pager by which friends and family members could contact her.

               Fawn Jones, a co-worker of Ms. Coulter at the Pantry, testified on behalf of the State
that, immediately prior to this offense, Ms. Coulter asked Jones for assistance in moving Ms.
Coulter’s belongings from the mobile home that she shared with the appellant to a new apartment.
Michael Hendrickson, an employee of Wherry Housing Cooperative in Smyrna, Tennessee,
confirmed that, on December 2, 1997, Ms. Coulter signed a lease for an apartment at the


                                                   -3-
Cooperative, paid the necessary deposits, and paid one month’s rent. Ms. Coulter listed only herself
and her son as occupants of the apartment.

                Additionally, the State introduced into evidence a video cassette recording of a
deposition of Rob McVicker, the Director of the Legal Affairs Division of the Domestic Violence
Program, Inc., in Murfreesboro, Tennessee. During the deposition, McVicker testified that, on
December 1, 1997, Ms. Coulter sought assistance from the Program and, consequently, filed a
petition in the Rutherford County Chancery Court requesting an order of protection against the
appellant. According to McVicker, the court granted Ms. Coulter’s petition.

                Sandra Jenkins, an employee of the Rutherford County Chancery Court, confirmed
that, upon Ms. Coulter’s petition, Judge James Clayton, Jr., signed an ex parte order of protection
against the appellant on December 2, 1997. Thomas Whittaker Davis, an officer with the Rutherford
County Sheriff’s Department, further verified that he served the appellant with the ex parte order in
the early afternoon of December 3, 1997.

                At approximately 6:34 p.m. on the evening of December 3, 1997, the appellant
walked into the lobby of the La Vergne Police Department and informed the dispatcher, Cassandra
Lowery, that he had just killed his wife. Lowery testified at the appellant’s trial that the appellant
appeared to be lucid, albeit somewhat distraught, and there was “blood spatter” on his t-shirt.
Because there were no other officers present at the police station, Lowery immediately radioed for
assistance. Stace L. Thompson, an officer with the Criminal Investigation Division of the La Vergne
Police Department, arrived at the station soon thereafter.

                Thompson testified that, upon his arrival, he immediately approached the appellant.
In response to Thompson’s questioning, the appellant reiterated that he had killed his wife and also
disclosed that his wife was currently at the Coulter’s mobile home. At this point, Thompson briefly
searched the appellant for weapons, handcuffed him, and escorted him to a patrol car. The appellant
in turn directed Thompson to his home, where the officer discovered Ms. Coulter’s lifeless body
lying on the bed in her bedroom. A Taurus .38 Special revolver was lying on a table in the kitchen.

               Nick Watson, a detective with the La Vergne Police Department, testified that he too
was dispatched to the appellant’s mobile home on the evening of the murder. According to Watson,
his “primary duty was to look at the crime scene and look around Ms. Coulter’s bedroom.” In
performing this task, Watson also collected evidence, including among other items the Taurus .38
Special revolver located on the kitchen table and the pillows and pillow cases located on Ms.
Coulter’s bed. Watson noted that the cylinder of the revolver contained two empty shell casings and
four live rounds. Moreover, when paramedics moved Ms. Coulter’s body, the police discovered a
spent bullet in the box springs of Ms. Coulter’s bed, near the headboard. Watson subsequently
obtained a second spent bullet from the medical examiner who performed the autopsy of Ms.
Coulter. The detective submitted the Taurus .38 Special revolver, the two empty shell casings, and
the two spent bullets to the Tennessee Bureau of Investigation (TBI)’s crime laboratory in Donelson,



                                                 -4-
Tennessee. However, he acknowledged at trial that, after the TBI completed its testing, at least one
of the spent bullets and the pillows and pillowcases seized from Ms. Coulter’s bed were lost.

                Watson further testified that, several days following the appellant’s offense, the police
obtained a warrant to search the appellant’s home. Among the items seized pursuant to the warrant
was a receipt reflecting the appellant’s purchase of the Taurus .38 Special revolver in 1996.
Moreover, the police seized notes and letters that were written by the appellant and addressed to his
wife. Some of these letters were undated, but others were dated July, August, September, and
October 1997. In the letters, the appellant complained about Ms. Coulter’s refusal to engage in
sexual relations with him and her alleged infidelity. Additionally, the appellant discussed Ms.
Coulter’s plans to leave him. In this regard, he occasionally expressed impatience that she had not
yet found another place to live, inquiring on one occasion, “Why are you still here? . . . Why can’t
you just pack your things and go away!? Why must you stay!” Alternately, the appellant expressed
anger that Ms. Coulter was “collecting boxes, getting newspapers and calling about places to live.”
Primarily, the appellant begged Ms. Coulter to remain with him and continue their marriage,
indicating that he could not live without her.

                Harry E. Hollins, a sergeant with the La Vergne Police Department, testified at the
appellant’s trial that he was dispatched to the appellant’s mobile home at approximately 7:00 p.m.
on the evening of this offense, arriving sometime after Detective Watson. Following his arrival,
Hollins assumed the task of photographing the crime scene. As he performed this task, Hollins
particularly noted that there were several boxes in Ms. Coulter’s bedroom, and clothing was lying
“around the room,” apparently having been removed from closets or dressers. Hollins subsequently
observed that Ms. Coulter’s car, which was parked outside the mobile home, also contained clothing.

                 Later on the evening of the offense, Hollins returned to the police station and, along
with Officer Thompson, conducted an audio taped interview of the appellant. At trial, the State
played the audio cassette recording of the interview for the jury. According to the recording, the
appellant conceded during the interview that, prior to the murder, he and his wife were experiencing
marital difficulties. In this regard, the appellant noted that he and his wife had always slept in
separate bedrooms, but, one year prior to the murder, his wife informed him that she no longer loved
him. Moreover, approximately four months prior to the murder, the appellant discovered sexually
explicit letters written by his wife. On the basis of these letters, the appellant suspected that his wife
was engaged in a sexual liaison with another man. Despite persistent questioning by the appellant
during the ensuing months, Ms. Coulter refused to explain the letters. Rather, Ms. Coulter
repeatedly stated to the appellant her intention to leave him as soon as she was financially able to
support herself. She also informed the appellant that she would obtain a restraining order against
him when she moved.

               The appellant additionally confirmed that, on December 3, 1997, while Ms. Coulter
was at work, a police officer visited the Coulters’ home and served him with an ex parte order of
protection issued on behalf of Ms. Coulter. Upon serving the appellant with the ex parte order, the
officer recommended to the appellant that he temporarily leave his home until the court hearing on


                                                   -5-
the order of protection. The officer explained that, if the appellant remained in the same home with
his wife, he would be vulnerable to false accusations by his wife of threatening or assaultive behavior
and to consequent arrest.

                 According to the appellant, he was frightened by the officer’s comments. Therefore,
following the officer’s departure, the appellant telephoned his workplace in order to find out if he
could live at the company’s headquarters for several days. The company’s owner, however, was not
available. Therefore, the appellant left a message for his employer and went to his bedroom, where
he slept until 5:30 p.m.

               When the appellant awakened, his wife had returned home. The appellant briefly
confronted her concerning the order of protection, after which encounter Ms. Coulter went to her
bedroom and slept, and the appellant returned to his own bedroom. In his bedroom, the appellant
opened his closet and removed his gun from the “duty belt” that he wore while at work. He briefly
considered whether or not he should replace the gun in the duty belt and go to work. Instead, he
placed the gun on a table and reflected upon his wife’s behavior. The appellant especially felt
betrayed by Ms. Coulter’s acquisition of an order of protection. As the appellant continued to reflect
upon Ms. Coulter’s betrayal, he smoked several cigarettes and drank several sodas. He also picked
up his gun and laid it down several times.

                Finally, the appellant picked up his gun, obtained a pillow from his bed, and walked
to his wife’s bedroom. The bedroom was dark. Yet, instead of turning on the lights, the appellant
approached his wife’s bed, visualized his wife’s head, placed the pillow on what he believed to be
his wife’s head, and placed the gun against the pillow. According to the appellant, he could feel the
trigger of the gun. He then heard a “pop,” whereupon Ms. Coulter began screaming, and the
appellant felt something strike his legs. The appellant asserted during the interview that, at this
point, he could no longer feel the gun in his hand and was unsure of the location of the pillow. The
appellant heard a second “pop” before running to the kitchen.

               In the kitchen, the appellant placed the gun on a table and sat down for several
moments. Afterwards, he returned to his wife’s bedroom and turned on the lights. His wife
appeared to be dead; therefore, he retrieved his gun and returned to his own bedroom, where he
smoked another cigarette and contemplated suicide. Ultimately, however, the appellant decided to
surrender to the police. He put on his shoes, placed the gun on the kitchen table once more, and
drove to the police station.

              During the audio taped interview, the appellant asserted his belief that he had
murdered his wife because he had “snapped or something [-] it just . . . all pilling up on me and I just
went bazirk.” The appellant explained:
              Cause like I said I was feeling a lot of emotions I was scared I was
              angry uh I just didn’t know which way to turn and I was probably not
              man enough to take a hold of my emotions and uh done the wrong
              thing.


                                                  -6-
                  Dr. Charles Warren Harlan, the acting medical examiner for Rutherford County,
testified at trial that he performed the autopsy of Ms. Coulter. Dr. Harlan related that Ms. Coulter
suffered two entry gunshot wounds to the head and one exit gunshot wound to the neck. One of the
entry gunshot wounds was located on Ms. Coulter’s left cheek. The bullet that caused this wound
exited Ms. Coulter’s body on the anterior right side of her neck. Dr. Harlan noted that the gunshot
wound to the victim’s left cheek did not possess the characteristics of a “close” or “contact” gunshot
wound. However, he emphasized that the presence of an “intervening or intermediary material,”
such as a pillow, between the gun and Ms. Coulter’s head might explain the absence of such
characteristics. Dr. Harlan also observed that “[t]his particular bullet struck no vital structure.”
Indeed, he noted that, “[f]ollowing receipt of [the wounds to Ms. Coulter’s left check and neck] . .
. there would be no loss of physical ability for mobility, for the ability to walk, talk, etc.” He also
opined that Ms. Coulter would have been capable of screaming following the infliction of these
wounds.

                As to the second entry gunshot wound, Dr. Harlan testified that this wound was
located on the back of Ms. Coulter’s head. According to Dr. Harlan, this gunshot wound did possess
the characteristics of a contact gunshot wound. Moreover, the bullet that caused this wound passed
through significant portions of Ms. Coulter’s brain and caused her death. Because this bullet was
still lodged in Ms. Coulter’s brain at the time of the autopsy, Dr. Harlan was able to recover the
bullet and provide it to the police.

                Donald Carman, a special agent employed by the TBI at its crime laboratory in
Donelson, Tennessee, testified on behalf of the State that he specializes in forensic firearms
identification and that he examined the Taurus .38 Special revolver recovered from the kitchen table
in the appellant’s home, the spent bullet recovered from the box springs of Ms. Coulter’s bed, and
the spent bullet recovered from Ms. Coulter’s brain. Upon testing the evidence, Carman determined
that both bullets had been fired from the Taurus .38 Special revolver.

               Carman further testified that the Taurus .38 Special revolver appeared to be
functioning properly and could be fired “single action” or “double action.” He explained:
               Single action . . . mean[s] that I manually pull back on the hammer
               until it is cocked, then I pull the trigger like that. You could fire it
               that way. That’s single action.

               Double action would be where I just pull through the trigger itself.
Carman observed that, in order to fire the weapon “single action,” a person would need to apply four
and one-half pounds of pressure to the trigger. In contrast, in order to fire the weapon “double
action,” a person would need to apply a little more than twelve pounds of pressure to the trigger.

                The appellant did not testify on his own behalf at trial, nor did he present evidence
refuting the State’s claim that he had killed his wife. Rather, he attempted to demonstrate that, as
a result of a mental defect, he did not possess the mental state necessary to commit the offense of
first degree premeditated murder. In this regard, the appellant presented the testimony of Hershel


                                                 -7-
Dean Wolfe, a friend and former co-worker. Wolfe testified that, in 1992, he and the appellant were
employed as aircraft mechanics at “Cross Continent.” While at work, the appellant fell fifteen or
twenty feet from scaffolding and hit his head against a concrete floor, suffering severe injuries.
Wolfe noted certain changes in the appellant following the accident:
               Well, I’ll tell you, Larry is an even person. It’s hard to tell the
               difference before and after. Only he had some withdrawal. He had
               depression, and he complained a lot about headaches and his pain that
               he was having in his hands and the loss of the feeling that he had in
               his hands.
Wolfe further recalled that, following the accident, the appellant was less able to concentrate and
appeared to be suffering memory deficits. However, the appellant “did not evidence hallucinations,
delusions, or bizarre behavior,” nor did the appellant experience any blackouts.

                Following the appellant’s offense in this case, Wolfe visited his friend in jail.
According to Wolfe, the appellant stated during the visit that he could not recall the murder, but,
“when [he] came to from blacking out[,] . . . [Ms. Coulter] was dead and . . . the gun was on the
table, so he figured he must have shot her.” The appellant additionally informed Wolfe that he was
hearing voices and was experiencing dreams and visions, including seeing a “dark man.”

                Judy Marie Prince, an ex-wife of the appellant, also testified on his behalf. She
recounted that she was married to the appellant for four years, divorcing him in 1992. Prince
asserted that the appellant was a good husband. She recalled:
                He was very kind, very loving. I could go to the grocery store and
                come home, and he would have gone out and bought flowers and
                some other little gift, and it would be waiting for me on the table. We
                did things together. We were very close. Wherever I went, he
                usually went. It was very rare that he would let me go to the grocery
                store by myself. He always went with me. So we were just kind of
                one together.

                Prince conceded that, during her marriage to the appellant, he was very “jealous of
[her] time,” including the time that she spent with her children from a prior relationship. Moreover,
the appellant discouraged her from visiting other family members, again demanding her undivided
attention. Nevertheless, Prince maintained that the appellant never argued with her during their
marriage. Prince explained that the appellant was “very timid and like he was beat down. And he
wouldn’t even voice his opinion. Even if he didn’t like something, he wouldn’t voice his opinion.”
Instead, the appellant expressed his anger or discontent by “tighten[ing] the lids on [Prince’s] Coke
bottle[s].” Ultimately, Prince divorced the appellant because he was not adequately mature and
stable. According to Prince, the appellant opposed their divorce and begged Prince to remain with
him but never threatened her with violence.

               The appellant’s accident at “Cross Continent” and his resultant head injury occurred
following Prince’s divorce from the appellant. Nevertheless, upon the appellant’s release from the


                                                -8-
hospital, Prince cared for the appellant for several months. Prince recounted that, like Wolfe, she
noticed certain changes in the appellant. She related to the jury:
                I think the biggest [change] was his memory. And then his - - I don’t
                know if it was impatience or intolerance or he couldn’t wait. He
                acted impulsively. And then he couldn’t remember.
Prince testified concerning several specific incidents in which the appellant uncharacteristically
engaged in impulsive shopping. However, Prince acknowledged that, at the time of the murder, she
had not seen the appellant for approximately one year and had not spoken with the appellant on the
telephone for six months.

                Sonya Craig, Prince’s daughter, also testified at the appellant’s trial. She recalled
that, during her mother’s marriage to the appellant, she lived with them for approximately one and
one-half years. She observed that, during this time, she never heard the appellant threaten anyone
with physical harm or even raise his voice. Rather, the appellant was “passive” and generally
withdrew to his room whenever he was angry. In particular, Craig noted that, when she lived with
her mother and the appellant, she had a mentally handicapped child, and the appellant was able to
interact with the child without becoming frustrated. Craig conceded that she had not seen or spoken
with the appellant since “shortly after his accident at work.”

                Finally, the appellant presented the testimony of Judith Weiss, a licensed clinical
psychologist specializing in neuropsychology. According to Dr. Weiss, the appellant was referred
to her in 1993 because he had been denied workers’ compensation for a closed head injury that he
claimed to have suffered when he fell twenty feet from scaffolding at his workplace. Dr. Weiss
noted that the Diagnostic and Statistical Manual of Mental Disorders classifies closed head injuries
as mental defects. However, she recalled that, at the time of her evaluation, the appellant had not
been examined by a neurologist. Accordingly, “there [was] no documented medical record of any
brain injury.” Nevertheless, upon evaluating the appellant, Dr. Weiss diagnosed a closed head
injury. Due to Dr. Weiss’ diagnosis, the appellant was awarded workers’ compensation.

               With respect to closed head injuries, Dr. Weiss related to the jury that they invariably
entail some damage to the brain’s frontal lobe and to the frontal tips of the brain’s temporal lobes.
Moreover, she testified that closed head injuries are associated with “a shearing or tearing of little
fibers throughout the brain,” including the subcortical or “inner part” of the brain, and frequently
produce neurochemical imbalances. Due to these common results of closed head injuries, people
suffering such injuries exhibit similar symptoms.

                 Providing examples, Dr. Weiss noted that, because the frontal lobe “is the part of our
brain that is responsible for judgment and forethought,” individuals with closed head injuries “can
lose a significant amount of reasoning and judgment.” She further remarked that, because the
temporal lobes “are responsible for storing memory,” such individuals often suffer “memory
problems.” Additionally, due to “the shearing of . . . fibers,” people with closed head injuries suffer
“[h]eadaches, irritability, sensitivity to noise, sensitivity to light.” Finally, Dr. Weiss testified that
neurochemical imbalances may manifest as labile or unstable emotions, depression, anxiety, and


                                                   -9-
withdrawal. Indeed, depending upon the kind of neurochemical imbalance, a person may suffer a
“wide range of problems, ranging from depression to eating disorders to alcoholism to psychotic
disorders, schizophrenia.” In particular, she observed that neurochemical imbalances may contribute
to impulsive behavior:
                Just to react to some circumstance at the moment without thinking
                about it is more common in someone who’s had a closed head injury
                than to sit down and say if I do this, this is going to happen; if I do
                this, this will happen. It’s more likely that one does something and
                then looks at one’s hand and says what did you do.

                Dr. Weiss assured the jury that, prior to diagnosing the appellant with a closed head
injury, she interviewed the appellant on two occasions: March 24, 1993, and March 30, 1993.
During these interviews, Dr. Weiss obtained information concerning the appellant, including his
“lengthy history of successful employment,” the details of his accident at “Cross Continent,” and the
impact of the accident upon his life, including his daily activities. She also administered various
psychological tests, including the Wechsler Adult Intelligence Scale-Revised (WAIS-R), the
Woodcock-Johnson Test of Cognitive Ability-Revised, the Peabody Picture Vocabulary Test-
Revised, the Detroit Test of Learning Aptitude-Revised, the Goldman-Fristoe-Woodcock Test of
Auditory Discrimination, the Wide Range Achievement Test-Revised, the Peabody Individual
Achievement Test-Revised, the Halstead-Reitan Neuropsychological Battery, and the Sixteen
Personality Factor Test.

               Dr. Weiss conceded that the appellant performed well on a majority of the
psychological tests. However, she asserted that specific aspects of the appellant’s performance
supported her diagnosis of a closed head injury. For example, on the WAIS-R, the appellant
achieved a full-scale intelligence quotient (I.Q.) of ninety-three (93) or average. Yet, there was a
disparity of twenty-four points between the appellant’s verbal intelligence quotient, which was
eighty-three (83) or “low average,” and his performance intelligence quotient, which was 107 or
average. Dr. Weiss observed that such a significant disparity was unusual in an “unimpaired”
person, and the disparity suggested a “loss” in the appellant’s verbal intelligence quotient.

                Dr. Weiss also cited the appellant’s performance on specific subtests of the WAIS-R
in support of her diagnosis. While acknowledging that the appellant performed at a “high average”
level on subtests measuring logical sequencing and puzzle construction, Dr. Weiss noted that the
appellant experienced difficulty on the portion of the scale that measures “common sense reasoning.”
Moreover, the appellant experienced significant difficulties in completing the subtest measuring
“mental arithmetic,” difficulties that could reflect short-term memory deficits. Finally, the appellant
experienced difficulty reproducing “block designs,” even though “you would expect a mechanic to
do extremely well, above average.” According to Dr. Weiss, people with “some form of central
nervous system dysfunction, some form of brain damage, can have a great deal of difficulty with [the
block design] test.”




                                                 -10-
                The academic achievement tests also produced mixed results. The tests measured the
appellant’s reading comprehension as “average for an adult.” In contrast, the appellant performed
in the bottom sixth percentile of test subjects in reading words aloud out of context, in the bottom
fifth percentile in spelling, and in the bottom third percentile in arithmetic.

              Similarly, on the Woodcock-Johnson Test of Cognitive Ability-Revised, the appellant
performed at the highest possible level in following oral directions accompanied by a visual
component, yet performed at the level of a nine-year-old in simply repeating words. Moreover, the
appellant’s
              performance initially in . . . repeating . . . sentences was at the six year
              old level and the fourth percentile for someone his age, so that 96
              percent of people his age at the time I tested him would have done
              better in repeating sentences.
Dr. Weiss opined that these test results also reflected cognitive dysfunction.

                 Finally, the appellant performed well overall on the Halstead-Reitan
Neuropsychological Battery. However, Dr. Weiss noted that this battery of tests “was developed to
look at the outer surface of the brain, not subcortical damage.” She explained that, therefore, the
battery of tests is not particularly sensitive to closed head injuries. She further remarked that the test
in the battery that is most sensitive to such injuries is the Seashore Rhythm Test, which measures
“sustained auditory attention span, . . . how well you can listen over a period of time.” Dr. Weiss
related that the appellant experienced difficulties with this test “suggestive of problems with . . .
central auditory processing disorder, that the subcortical portions of the brain that deal with auditory
information are not working well as a result of the injury. And, therefore, auditory input is not
handled well by the brain.” The results of the Goldman-Fristoe-Woodcock Test of Auditory
Discrimination also “supported the presence of subcortical contribution to inability to handle
auditory information.”

                Dr. Weiss testified that people with closed head injuries may or may not get better
over time; however, “[h]istorically, reason and judgment and memory are the most difficult to
rehabilitate.” Moreover, Dr. Weiss testified that she interviewed the appellant again in 1999
following this offense, although she did not re-administer any psychological tests, nor did she
interview the police or the appellant’s co-workers, friends, and family members. She also reviewed
a report by Samuel N. Craddock, the State’s psychologist, concerning his recent evaluation of the
appellant. Dr. Weiss concluded that the appellant “continues to be impulsive and to use poor
judgment, to be irritable, to be withdrawn.” She stated that it was “highly improbable [that] he acts
with reflection and judgment.” Instead, “[the appellant] responds to things in the environment at the
moment without thinking about aftermath.”

                Accordingly, Dr. Weiss opined that it was “improbable” that the appellant was acting
with reflection and judgment at the time that he killed his wife. Indeed, she noted that the appellant
informed her during the 1999 interview that, at the time of this offense, “he basically went into
automatic pilot and really is not sure of how anything happened in terms of the shooting.” She


                                                  -11-
asserted that this claim was consistent with statements made by the appellant during his audio taped
interview with the police.

               In rebuttal of Dr. Weiss’ testimony, the State presented the testimony of Dr.
Craddock, a forensic psychologist at the Middle Tennessee Mental Health Institute (MTMHI). Dr.
Craddock testified that, following the instant offense, the appellant was admitted to MTMHI for four
days because he claimed to be experiencing depression and had threatened violence both to himself
and to other individuals. The appellant was provided medication and returned to the jail.
Subsequently, on October 27, 1998, the appellant was again admitted to MTMHI. On this occasion,
the court ordered Dr. Craddock to perform a forensic evaluation of the appellant in order to
determine both the appellant’s competency to stand trial and his mental condition at the time of the
instant offense. The appellant stayed in the residential unit at MTMHI for twenty-four days.

                In conducting a forensic evaluation of the appellant, Dr. Craddock was joined by other
members of the staff at MTMHI, including Dr. Rokeya Farooque, a psychiatrist; Rebecca Smith, a
social worker; and several nurses who recorded their observations of the appellant during his stay
in the residential unit. In addition to their own observations, members of the evaluation team
collected information from sources including the appellant, the appellant’s co-workers, the
appellant’s acquaintances or friends, the appellant’s mother, and the police. Dr. Craddock also
listened to the audio cassette recording of the appellant’s interview with the police. Moreover, Dr.
Craddock administered several psychological tests. He administered the Shipley Institute of Living
Scale, a test designed to measure vocabulary, reading comprehension, and reasoning. He
administered the Trail Making Test and portions of the Halstead-Reitan Neuropsychological Battery,
both of which are sensitive to cerebral “insult” or damage. He administered the Milan Clinical
Multi-Axial Inventory and the Personality Assessment Inventory, tests designed to detect personality
disorders. Finally, Dr. Craddock reviewed information that he had received from Dr. Weiss,
including the results of the Minnesota Multiphasic Inventory, Second Edition (MMPI-II), that Dr.
Weiss administered to the appellant on July 4, 1998.

                As to the results of the psychological testing, Dr. Craddock confirmed that the
appellant possesses average or near-average intelligence but, at the time of the forensic evaluation,
was also exhibiting symptoms of a “mental defect.” Thus, Dr. Craddock agreed with Dr. Weiss’
diagnosis of a closed head injury and further agreed that the appellant had thereby suffered some
impairment in reasoning and judgment. Specifically, Dr. Craddock noted that the Shipley Institute
of Living Scale measured the appellant’s reasoning at an eleven-year-old level. Dr. Craddock
recalled that the appellant “made a good effort on the test sensitive to brain damage. I don’t think
he was trying to be deceptive in that respect.”

                Dr. Craddock also testified that, at the time of the forensic evaluation, the appellant
appeared to be suffering a “mental disease.” Specifically, Dr. Craddock diagnosed the appellant with
an “adjustment disorder.” Moreover, Dr. Craddock observed in the appellant “[p]resent features of
anxiety and depression as well as features of a personality disorder with passive/aggressive, self-
defeating, and schizoid components.” However, the psychologist opined that, in contrast to the


                                                 -12-
appellant’s “effort on the test sensitive to brain damage,” the appellant exaggerated symptoms on
the tests designed to detect personality disorders.

                 Dr. Craddock noted that, notwithstanding any mental disease or defect, the appellant’s
behavior while residing at MTMHI was “unremarkable,” and the appellant experienced no
difficulties interacting with either members of the staff or other inmates. Indeed, Dr. Craddock
remarked that the appellant demonstrated “good judgment” by avoiding confrontations with other
inmates who were “mentally disturbed” or had “a history of acting out.” Dr. Craddock further
recalled:
                 I didn’t see any bizarre behavior. He was polite with me. He was
                 cordial. I thought we established a good rapport. . . . I did not hear
                 him express complaints. He seemed to be able to live with our
                 policies and, I enjoyed working with him.
Dr. Craddock elaborated that the appellant did not appear to be experiencing hallucinations during
his stay at MTMHI, nor did he complain of hallucinations. Rather, the appellant appeared to be alert
and oriented and made lucid and coherent statements to the psychologist.

                 Dr. Craddock concluded that, despite any mental disease or defect, the appellant “was
functioning within normal expectations or bounds” at the time of the instant offense and possessed
the capacity to form the requisite mental state, i.e., intent and premeditation. Dr. Craddock conceded
that he “was not saying whether he exercised that capacity. I’m saying he possessed the capacity.”

                Rokeya Farooque, the psychiatrist employed by the forensic services unit of MTMHI,
also testified on behalf of the State. Dr. Farooque confirmed that she participated in the evaluation
of the appellant. She recalled that, while residing at MTMHI, the appellant complained of difficulty
sleeping and of dreams. However, she observed:
                Mr. Coulter was very cooperative, pleasant with us. Whenever we
                interviewed, he talked coherently without any problem. He gave us
                whatever question we asked. He did not have any problem while he
                was with us or while he was in the unit. He was cooperative with us
                and talked about his dream problems, sleeping problems, that I treated
                with Vistaril.
Due to the appellant’s claims of a closed head injury, Dr. Farooque additionally ordered an
electroencephalogram (EEG) and a CT scan of the appellant’s head. Both the EEG and the CT scan
yielded results within normal ranges. In sum, Dr. Farooque concurred in Dr. Craddock’s
conclusions.

               At the close of the trial and following deliberations, the jury returned a verdict of guilt
of first degree premeditated murder. Because the State sought neither the death penalty nor a
sentence of life imprisonment without parole, the trial court sentenced the appellant to life
imprisonment in the Tennessee Department of Correction.

                                             II. Analysis


                                                  -13-
a.       Motion to Disqualify the District Attorney General’s Office
                In appealing his conviction of first degree premeditated murder, the appellant first
challenges the trial court’s denial of his pre-trial motion to disqualify the office of the District
Attorney General for the Sixteenth Judicial District from prosecuting his case. The appellant asserts
that “the Trial Court’s ruling was fundamentally unfair, inappropriate and casts doubt over the
fairness of the entire proceeding and the entire judicial process if allowed to stand.” In support of
his claim, the appellant notes that his original attorney in this case was William Osborne, an assistant
district public defender for the Sixteenth Judicial District, and that, prior to the appellant’s trial,
Osborne accepted employment with the District Attorney General’s office in the same judicial
district. The State responds that the District Attorney General’s office utilized adequate procedures
to insulate Osborne from the appellant’s case. We must agree with the State.

        1.     Trial Court Proceedings
               The appellant filed his disqualification motion on October 8, 1998, and the trial court
conducted an evidentiary hearing on the motion on December 7, 1998. At the evidentiary hearing,
the appellant presented the testimony of Gerald Melton, the District Public Defender for the
Sixteenth Judicial District. Melton confirmed that his office was initially appointed to represent the
appellant in this case. According to the record, the appointment occurred on January 8, 1998.
Melton additionally recalled that he assigned the appellant’s case to William Osborne, an assistant
employed by his office, and also agreed to act as co-counsel.

                 Melton maintained that, during the course of Osborne’s representation of the
appellant, the attorney received confidential or privileged communications from the appellant, which
communications Osborne recorded in the appellant’s case file. In this regard, Melton emphasized
that Osborne was the lead attorney in the appellant’s case:
                 [Osborne] . . . undert[ook] the interviews with Mr. Coulter. I don’t
                 recall that I . . . ever met Mr. Coulter. . . . My primary involvement
                 [was] working with Mr. Osborne to do things toward the defense.
                 We collaborated with one another at different times and talked about
                 the facts of the case and talked about areas in which we would pursue
                 a defense, the possibility of various expert services, and things of this
                 nature.
Additionally, the record reflects that Osborne filed several motions with the Rutherford County
Circuit Court on behalf of the appellant, including a motion for a bill of particulars, a motion for
discovery, and a motion for a mental evaluation of the appellant. Osborne also filed a notice of the
appellant’s intent to introduce expert testimony concerning his mental condition at the time of this
offense.

               According to Melton, Osborne left the District Public Defender’s office in September
1998 in order to accept a position as an assistant district attorney general with the office of the
District Attorney General for the Sixteenth Judicial District. At that time, Melton and Osborne
discussed the potential development of conflicts of interest in numerous cases, including the instant
case. Moreover, at the request of the District Public Defender’s office, the trial court permitted that


                                                 -14-
office to withdraw from representation of the appellant and appointed attorney Darrell Scarlett to
represent the appellant. Melton explained that his office was concerned about a possible appearance
of impropriety due to Osborne’s employment by the District Attorney General’s office. The trial
court’s order appointing Darrell Scarlett includes the following notation: “Due to a conflict with the
District Public Defender, the above Attorney is appointed.”

               In addition to Melton’s testimony, the appellant presented the testimony of David
Jones, the Rutherford County Building Official. Jones testified that the District Attorney General’s
office occupied space on the third floor of the “Judicial Building.” According to Jones, this space
consisted of 2,111 square feet.

                 In rebuttal, the State presented the testimony of William Osborne, the appellant’s
former attorney. Osborne confirmed that, from June 1, 1996, until August 29, 1998, he was an
assistant district public defender in the Sixteenth Judicial District. He also confirmed that he initially
represented the appellant in the instant case and received confidential or privileged communications
from the appellant during the course of his representation. Finally, he confirmed that, on August 31,
1998, he accepted a position as an assistant district attorney general in the same judicial district.

                With respect to his change of employment, Osborne recalled that, prior to being
sworn in as an assistant district attorney general, he engaged in discussions with both Melton and
the District Attorney General, William C. Whitesell, Jr., concerning the procedures required to avoid
any conflicts of interest or any appearance of impropriety. Due to these discussions, Whitesell
determined that he would not assign Osborne to prosecute cases in the Rutherford County Circuit
Court, the court in which Osborne had provided representation as an assistant district public
defender. Moreover, on September 1, 1998, the day on which Osborne was sworn in as an assistant
district attorney general, Whitesell authorized Osborne’s circulation of a memorandum to the
attorneys and other staff members of the District Attorney General’s office. In this memorandum,
Osborne alerted staff members to his employment by the District Attorney General’s office and to
the danger of conflicts of interest due to his prior employment as an assistant district public defender.
Specifically, Osborne acknowledged his continuing duty to preserve the confidences of his former
clients. He also advised staff members of the need to shield him from exposure to any cases pending
in the Rutherford County Circuit Court in which he had participated as an assistant district public
defender or in which the District Public Defender’s office had participated during Osborne’s
employment by that office. Osborne concluded in the memorandum that any discussions pertaining
to those cases should be conducted outside his presence and that he should be denied access to the
files in those cases.

                Osborne additionally testified that, since becoming an assistant district attorney
general, he had not discussed the appellant’s case with anyone other than the appellant’s new
attorney, nor had he seen the prosecution’s file in the appellant’s case. Indeed, Osborne asserted that
he had had no contact with anyone in the District Attorney General’s office concerning the
appellant’s case. He conceded that he frequently encountered the prosecutors assigned to the



                                                  -15-
appellant’s case. He noted, however, that his office and the office of J. Paul Newman, the principal
prosecutor in the appellant’s case, were located on different floors.

               Osborne also conceded that the staff of the District Attorney General’s office
frequently drank coffee and conversed together in the mornings. However, he could only recall one
occasion on which he overheard staff members discussing the appellant’s case. Specifically, one
staff member inquired concerning the date of a court hearing in the appellant’s case. On that
occasion, Osborne immediately departed the room. Osborne assured the court that, should anyone
attempt to discuss the appellant’s case with him, he would immediately notify the court.

                 The State next presented the testimony of William C. Whitesell, Jr., the District
Attorney General for the Sixteenth Judicial District. Whitesell confirmed that, when he hired
Osborne, he discussed with Osborne potential conflicts of interest. Due to these potential conflicts,
Whitesell assigned Osborne to prosecute cases in the Rutherford County General Sessions Court
rather than in the Rutherford County Circuit Court. Whitesell also directed members of his staff to
avoid any discussions with Osborne concerning the appellant’s case and other cases in which
Osborne had participated as an assistant district public defender or in which the District Public
Defender’s office had participated during Osborne’s employment by that office. Whitesell noted
that, in light of the charged offense, “[the appellant’s] case was given special attention.” Indeed,
Whitesell asserted that, to his knowledge, the file in the appellant’s case was being kept at a location
outside the District Attorney General’s office. He assured the court that, should he become aware
of any impropriety, he would immediately notify the court. Finally, Whitesell conceded that,
notwithstanding the procedures employed by his office, some might perceive an appearance of
impropriety in the appellant’s case due to Osborne’s employment by his office.

                 Both the State and the appellant stipulated that, were Assistant District Attorney
General J. Paul Newman to testify, he would state that he obtained possession of the file in the
appellant’s case prior to Osborne’s employment as an assistant district attorney general. Moreover,
Newman would state that, since obtaining possession of the file, he had kept the file at his home with
the exception of one occasion on which he brought the file to the office in order to allow the
appellant’s attorney to view a videotape cassette. Newman assured the court that he intended to keep
the file at his home until the appellant’s trial.

                On December 22, 1998, the trial court denied the appellant’s motion to disqualify the
entire District Attorney General’s office. In its order, the trial court concluded:
                After careful consideration of the motion to disqualify the District
                Attorney General’s office in the prosecution of this case, I find that
                Mr. Osborne has not participated either directly or indirectly in the
                Coulter case. Further, I find that the Memorandum of procedure
                employed by the District Attorney’s office has effectively prevented
                the possibility that confidences of Mr. Coulter would be disclosed by
                Mr. Osborne to the others in the office intentionally or inadvertently.
                These affirmative actions overcome any appearance of impropriety.


                                                 -16-
               Therefore, the Motion is overruled. The District Attorney and his
               staff are ordered to strictly follow the Memorandum and to have no
               discussion either directly or indirectly with Mr. Osborne concerning
               the Coulter case. They are also not to discuss this case in Mr.
               Osborne’s presence. Mr. Osborne is ordered to continue protecting
               the confidence of Mr. Coulter as he has in the past. If it comes to the
               attention of the Defendant that this order has been violated they may
               raise this issue again with any supporting proof.

               I find that the original order appointing Mr. Scarlett is to be amended
               to reflect that his appointment was an accommodation to the District
               Public Defender’s office and to dispel any potential appearances of
               impropriety. I find that no actual conflict exist[ed] for that office to
               continue in the representation of Mr. Coulter.

        2.      Analysis
                In reviewing the trial court’s denial of the appellant’s motion, we initially note that
improper or unethical participation by a prosecutor or a prosecutor’s office in a criminal case may
implicate the basic constitutional rights of a defendant, “the orderly administration of justice, the
dignity of the courts, the honor and trustworthiness of the legal profession[,] and the interests of the
public at large.” State v. Phillips, 672 S.W.2d 427, 435 (Tenn. Crim. App. 1984); see also State v.
Willie Claybrook, No. 3, 1992 WL 17546, at *8 (Tenn. Crim. App. at Jackson, February 5, 1992).
In protecting these concerns, Tennessee courts generally turn for guidance to our Code of
Professional Responsibility, as adopted by our supreme court in Tenn. Sup. Ct. Rule 8, and to court-
created principles of professional conduct. State v. Ricky Raymond Bryan, No. M1999-00854-CCA-
R9-CD, 2000 WL 1131890, at **3-8 (Tenn. Crim. App. at Nashville, August 4, 2000). A trial
court’s application of these legal standards to a disqualification motion will not be disturbed on
appeal absent an abuse of discretion. State v. Culbreath, 30 S.W.3d 309, 313 (Tenn. 2000); State
v. Tate, 925 S.W.2d 548, 549-550 (Tenn. Crim. App. 1995); John M. Clinard v. C. Roger
Blackwood, No. M1998-00555-SC-R11-CV, 2001 WL 530834, at *1 (Tenn. at Nashville, May 18,
2001); State v. Steve Mason, No. 01C01-9603-CC-00103, 1997 WL 311900, at *6 (Tenn. Crim.
App. at Nashville, June 6, 1997); Claybrook, No. 3, 1992 WL 17546, at *12. An abuse of discretion
might comprise the application of an incorrect legal standard or a decision that is against logic or
reasoning and that caused an injustice to the complaining party. State v. Shirley, 6 S.W.3d 243, 247
(Tenn. 1999); State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997). In determining whether the trial
court has applied an incorrect legal standard, “‘appellate courts are not required to defer to a trial
court’s interpretation of the Code of Professional Responsibility or to its decisions regarding legal
standards applicable to a particular disqualification motion.’” Bryan, No. M1999-00854-CCA-R9-
CD, 2000 WL 1131890, at *2; cf. Clinard, No. M1998-00555-SC-R11-CV, 2001 WL 530834, at *2.

               For purposes of deciding whether a prosecutor or his office should be disqualified
from participation in a criminal case, this court and our supreme court have adopted the following
analytical framework: (1) Do the circumstances of the defendant’s case establish an actual conflict


                                                 -17-
of interest that requires the disqualification of a prosecutor? (2) Do the circumstances of the
defendant’s case create an appearance of impropriety that requires the disqualification of a
prosecutor? (3) If either theory requires the disqualification of a prosecutor, is the entire District
Attorney General’s office likewise disqualified? Culbreath, 30 S.W.3d at 312-313; Tate, 925
S.W.2d at 550; Mason, No. 01C01-9603-CC-00103, 1997 WL 311900, at *6.

                  In this case, it is obvious that an actual conflict of interest required Osborne’s
disqualification from any participation in the appellant’s case. Reviewing the applicable legal
standards, Tenn. Sup. Ct. Rule 8, EC 5-1 states that “[t]he professional judgment of a lawyer should
be exercised, within the bounds of the law, solely for the benefit of the client and free of
compromising interests and loyalties.” Citing this ethical consideration, our supreme court has
observed in turn that “an actual conflict of interest . . . includes any circumstances in which an
attorney cannot exercise his or her independent professional judgment free of ‘compromising
interests and loyalties.’” Culbreath, 30 S.W.3d at 312. Accordingly, Tenn. Sup. Ct. Rule 8, DR 5-
105(A) prohibits a lawyer from accepting proffered employment “if it would be likely to involve the
lawyer in representing differing interests.” DR 5-105 does not expressly address an attorney’s
successive (as opposed to simultaneous or multiple) representation of differing interests. Cf.
Tennessee Rules of Professional Conduct 1.9, 1.11 (Proposed Official Draft 2000). Nevertheless,
it is clear that actual conflicts of interest may arise in cases involving successive representation. See,
e.g., Clinard, No. M1998-00555-SC-R11-CV, 2001 WL 530834, at **1-3; State v. Frank A. Hoggett,
No. 01C01-9003-CR-00073, 1990 WL 172632, at *1 (Tenn. Crim. App. at Nashville, November 9,
1990); William R. Mills v. Donald E. Crane, No. 66, 1987 WL 9165, at **4-5 (Tenn. App. at
Knoxville, April 10, 1987). Moreover, it is clear that one of the primary concerns in such cases is
the possibility that the attorney may use or divulge on behalf of the new client confidential or
privileged information obtained from the former client. See Tenn. Sup. Ct. R. 8, DR 4-101.

                Indeed, broadly speaking, “a lawyer may not represent interests materially adverse
to those of a former client if the subject matter of the new representation is substantially related to
the subject matter of the previous representation.” John M. Clinard v. C. Roger Blackwood, No.
01A01-9801-CV-00029, 1999 WL 976582, at *7 (Tenn. App. at Nashville, October 28, 1999),
affirmed by Clinard, No. M1998-00555-SC-R11-CV, 2001 WL 530834, at *8. Under those
circumstances, a presumption arises that the attorney received confidential or privileged information
during his prior representation, raising the specter that the attorney will use or divulge the
information on behalf of the new client. Mills, No. 66, 1987 WL 9165, at *5. Of course, in this
case, it was undisputed that Osborne both had previously represented the appellant in the pending
prosecution and had received his confidences. As this court has previously observed,
                “[w]hen an attorney has once been engaged and received the
                confidences of his client, he cannot enter the services of those whose
                interests are adverse to that of his client or former client. . . . [Thus,]
                [a]n attorney cannot be permitted to participate in the prosecution of
                a criminal case if, by reason of his professional relation with the
                accused, he has acquired knowledge of facts upon which the
                prosecution is predicated, or which are closely interwoven therewith.”


                                                  -18-
Phillips, 672 S.W.2d at 430-431 (quoting Autry v. State, 430 S.W.2d 808, 809 (Tenn. Crim. App.
1967)); see also Tate, 925 S.W.2d at 553; State v. Locust, 914 S.W.2d 554, 557 (Tenn. Crim. App.
1995); Mattress, 564 S.W.2d at 680; Claybrook, No. 3, 1992 WL 17546, at *7. In short, having
defended the appellant in this case and received his confidences, Osborne could not then “switch
sides” and represent the State in prosecuting the appellant.

                We turn then to the primary issue in this appeal, namely whether Osborne’s
disqualification due to an actual conflict of interest likewise required the disqualification of the entire
District Attorney General’s office. As noted by our supreme court in Clinard, No. M1998-00555-
SC-R11-CV, 2001 WL 530834, at **2-3, Tenn. Sup. Ct. Rule 8, DR 5-105(D) provides:
                If a lawyer is required to decline employment or to withdraw from
                employment under a Disciplinary Rule, no partner, or associate, or
                any other lawyer affiliated with that lawyer or that lawyer’s firm may
                accept or continue such employment.
However, the court in Clinard, No. M1998-00555-SC-R11-CV, 2001 WL 530834, at *3 (footnote
omitted), also affirmed that, “[i]n these days of monolithic law firms and increased opportunity and
mobility for both clients and attorneys, a per se rule of vicarious disqualification is not feasible.”
Accordingly, as an exception to the DR 5-105(D) rule of vicarious disqualification, the court adopted
the case-by-case analysis employed by the United States Court of Appeals for the Seventh Circuit
in Schiessle v. Stephens, 717 F.2d 417, 420 (7th Cir. 1983), in determining whether an attorney’s
prior representation mandates vicarious disqualification. Clinard, No. M1998-00555-SC-R11-CV,
2001 WL 530834, at **3-4; see also See also Board of Professional Responsibility of the Supreme
Court of Tennessee, Formal Ethics Op. No. 89-F-118, 1989 WL 534365, at **2-3 (March 10, 1989).

                Having already determined that Osborne previously represented the appellant in the
pending prosecution and that Osborne received the confidences of the appellant during the former
representation, we have resolved the first two inquiries of the Schiessle analysis. Clinard, No.
M1998-00555-SC-R11-CV, 2001 WL 530834, at *4. Moreover, once a defendant has established
a substantial relationship between the pending prosecution and the matter in which the attorney was
previously representing the defendant, there arises a presumption that the attorney shared
confidential or privileged information with his new associates in the District Attorney General’s
office. Id.; see also Tate, 925 S.W.2d at 557; Claybrook, No. 3, 1992 WL 17546, at *11. In order
to rebut this presumption of shared confidences, the prosecution carries the burden of establishing
by clear and convincing evidence that appropriate screening measures have been undertaken to
insulate the “infected” attorney from the ongoing prosecution. Clinard, No. M1998-00555-SC-R11-
CV, 2001 WL 530834, at *4; see also Tate, 925 S.W.2d at 557-558; Claybrook, No. 3, 1992 WL
17546, at *11; cf. Tennessee Rules of Professional Conduct 1.10(c) (Proposed Official Draft 2000).

               Thus, any determination of whether a prosecutor’s disqualification must be imputed
to the entire District Attorney General’s office depends upon a case-by-case evaluation of the
screening mechanisms employed. Clinard, No. M1998-00555-SC-R11-CV, 2001 WL 530834, at
**4-5; see also Board of Professional Responsibility of the Supreme Court of Tennessee, Formal
Ethics Op. No. 87-F-111, 1987 WL 364065, at *2 (Sept. 16, 1987). The supreme court in Clinard,


                                                   -19-
No. M1998-00555-SC-R11-CV, 2001 WL 530834, at *4, set forth a non-exclusive list of factors
relevant to a court’s evaluation:
                1) the structural organization of the law firm or office involved,
                2) the likelihood of contact between the “infected” person and the
                specific attorneys and support personnel involved in the present
                representation,
                3) the existence of law firm or office rules which prevent the
                “infected” person
                        a) from access to relevant files or other information
                        pertaining to the present litigation and
                        b) from sharing in the fees derived from such
                        litigation.
See also Bryan, No. M1999-00854-CCA-R9-CD, 2000 WL 1131890, at *3 n.2; Claybrook, No. 3,
1992 WL 17546, at *10-12. In weighing the above factors, the question to be asked is “‘whether the
screening mechanisms reduce to an acceptable level the potential for prejudicial misuse of client
confidences.’” Clinard, No. M1998-00555-SC-R11-CV, 2001 WL 530834, at *4; see also
Claybrook, No. 3, 1992 WL 17546, at *10. Viewing the particular facts of the instant case in light
of the above factors, we conclude that the State adequately rebutted the presumption that Osborne
shared the appellant’s confidences with other staff members of the District Attorney General’s office.

                Notwithstanding our conclusion, the supreme court in Clinard, No. M1998-00555-
SC-R11-CV, 2001 WL 530834, at **6-7, further held that an appearance of impropriety may require
vicarious disqualification even if the disqualified attorney and his associates employ adequate
screening mechanisms. The court cited the ethical consideration set forth in Tenn. Sup. Ct. Rule 8,
EC 9-6 that “[e]very lawyer owes a solemn duty to . . . avoid not only professional impropriety but
also the appearance of impropriety.” The court then identified the following “subtle, but identifiable,
contours” of the appearance of impropriety standard. Clinard, No. M1998-00555-SC-R11-CV, 2001
WL 530834, at *6. First, the mere possibility of impropriety is insufficient to warrant
disqualification. Id. Second, “objective public perception rather than the subjective and ‘anxious’
perceptions of litigants governs.” Id. Third, the existence of an appearance of impropriety is to be
determined from the perspective of a reasonable lay person. Id. at 7. Fourth and finally, the
reasonable lay person is deemed to have been informed of all the facts, including whether and to the
extent screening mechanisms were employed. Id.

                We note that the court in Clinard, No. M1998-00555-SC-R11-CV, 2001 WL 530834,
at *7, was addressing factual circumstances in which a private firm “st[ood] as adversary” to an
associate’s former clients in the same litigation in which the associate had previously represented
the clients and gained their confidences. Applying the above appearance of impropriety standard,
the court concluded that the firm must be disqualified despite its employment of adequate screening
mechanisms. Id. at 8. In reaching its conclusion, the court remarked:
                To analogize to baseball, [the associate] has not only switched teams,
                he has switched teams in the middle of the game after learning the



                                                 -20-
               signals. That [he] has been benched by his new team does little to
               ameliorate the public perception of an unfair game.
Id. at *7.

                As in Clinard, Osborne “switched teams in the middle of the game after learning the
signals.” Id. Nevertheless, we believe it to be significant that the supreme court arrived at its
conclusion in Clinard in the context of an attorney moving between private firms and in the context
of civil proceedings. Therefore, the supreme court did not address the court of appeals’ observation
below that Tennessee’s intermediate appellate courts have taken different paths with regard to
imputed disqualification and the efficacy of screening mechanisms.                       Clinard, No.
01A01-9801-CV-00029, 1999 WL 976582, at *16. The court of appeals remarked:
                This difference can be explained, at least in part, by the distinction
                between lawyers in government service and those in private practice
                and by the difference between criminal proceedings and civil
                proceedings. The cases reflect an understanding that applying the
                imputed disqualification doctrine to district attorney generals’ offices
                in the same way that it is applied to private law firms would seriously
                hamper the prosecution of criminal cases.
Id. Correspondingly, this court recently observed in Bryan, No. M1999-00854-CCA-R9-CD, 2000
WL 1131890, at *6 (quoting United States v. Caggiano, 660 F.2d 184, 191 (6th Cir. 1981)), that
                [p]rivate and public practice have significant distinctions, such that
                screening procedures for attorneys in government service are
                generally viewed with less skepticism: “The relationships among
                lawyers within a government agency are different from those among
                partners and associates of a law firm. The salaried government
                employee does not have the financial interest in the success of
                departmental representation that is inherent in private practice.”
See also Tate, 925 S.W.2d at 556-557; Claybrook, 1992 WL 17546, at **9-10. Moreover, in
Claybrook, No. 3, 1992 WL 17546, at *9 (quoting ABA Comm. on Ethics and Prof’l Responsibility,
Formal Op. 342 (1976)), we noted “‘[t]he important difference in the adversary posture of the
government lawyer . . . recognized [in] Canon 7.’” See Tenn. Sup. Ct. Rule 8, EC 7-13.

                 Thus, this court has repeatedly observed that a prosecutor’s disqualification need not
be imputed to the “entire district attorney general’s office . . . so long as the attorney at issue does
not disclose confidences or otherwise participate in the prosecution.” Tate, 925 S.W.2d at 556; see
also Mattress, 564 S.W.2d at 680; Mason, No. 01C01-9603-CC-00103, 1997 WL 311900, at *6;
State v. Robert West, No. 01C01-9107-CC-00202, 1992 WL 62020, at **2-3 (Tenn. Crim. App. at
Nashville, March 31, 1992). In other words, “[e]arly and adequate screening in the case of actual
conflict or the appearance of impropriety should usually resolve [the] problem.” Tate, 925 S.W.2d
at 556. We have followed this principle even when a disqualified prosecutor was previously a
member of the defense “team.” For example, in Mason, No. 01C01-9603-CC-00103, 1997 WL
311900, at **5-6, under factual circumstances substantially identical to those in the instant case, we
declined to hold that an attorney’s “mere presence in the District Attorney[] [General’s] office while


                                                 -21-
in possession of privileged, confidential information pertaining to [the] appellant warranted
disqualification of the entire office” from prosecuting the appellant’s case. See also West, No.
01C01-9107-CC-00202, 1992 WL 62020, at **2-3. In sum, the trial court in this case did not abuse
its discretion in concluding that the screening mechanisms employed by the District Attorney
General’s office forestalled any actual or apparent impropriety.

                 In reaching our conclusion, we reiterate that, when an accused’s attorney joins the
prosecution, “[t]he potential for disclosure, inadvertent or otherwise, by the . . . attorney of a
criminally accused’s confidences and secrets threatens the foundation of the accused’s constitutional
rights,” including his privilege against self-incrimination, his right to the effective assistance of
counsel, and his right to a fair and impartial trial and due process of law. Claybrook, No. 3, 1992
WL 17546, at *11. In this regard, however, “the appearance of impropriety is not the central
concern. Primarily, it is a matter of an unacceptable risk of harm or disclosure which is at issue.”
Id.; see also Tate, 925 S.W.2d at 557. The screening mechanisms employed by the District Attorney
General’s office in this case adequately addressed this “central concern.” This issue is without merit.

b.      Fourth and Fifth Amendment Claims
                The appellant next challenges the trial court’s denial of his pre-trial motions to
suppress both his “statement” to officers of the La Vergne Police Department on December 3, 1997,
and the “fruits” of the warrantless search of his home conducted by police officers on the same day.
The appellant asserts that the officers violated his rights under the Fourth and Fifth Amendments to
the United States Constitution.

       1.      Trial Court Proceedings
               The appellant filed his motions to suppress on February 22, 1999, and the trial court
conducted an evidentiary hearing on the appellant’s motions on February 26, 1999. At the
suppression hearing, as at trial, the State established that the appellant appeared in the lobby of the
La Vergne Police Department on the evening of December 3, 1997. Officer Lowery approached the
appellant and asked if she could assist him, whereupon he informed her that he had “just killed his
wife.” Lowery immediately retreated to the dispatchers’ office, radioed her sergeant, and asked that
he come to the station. She then reemerged from the office and asked the appellant to seat himself
on a bench in the lobby, indicating that another officer would soon be available to speak with him.
While the appellant was waiting on the bench, Lowery obtained from him his home address and
dispatched an officer to that address.

               Almost immediately thereafter, Officer Thompson arrived at the police station and
approached the appellant. Thompson asked the appellant “what had happened.” When the appellant
responded that he had killed his wife, Thompson briefly searched the appellant for weapons and
handcuffed the appellant. Afterwards, “[t]here was some communication in reference to the address
which [the appellant] had reported.” Ultimately, the appellant offered to guide Thompson to his
home.




                                                 -22-
               Accordingly, Thompson escorted the appellant to a patrol car and placed him in the
prisoner compartment of the vehicle. Thompson testified at the suppression hearing that the prisoner
compartment of the vehicle is separated from the front seats by a “shield.” The upper portion of the
shield consists of “Lexan,” and the lower portion consists of “a stainless steel metal material.”
Nevertheless, Thompson stated that, as he began to drive toward the appellant’s home, he overheard
the appellant begin “making some statements . . . [that the appellant] couldn’t believe he [had] killed
[his wife].” Thompson immediately interrupted the appellant and provided a Miranda warning.

               Before conveying to the appellant the requisite litany of constitutional rights,
Thompson obtained confirmation from the appellant that he could hear Thompson through the
“shield” and also that he “spoke, wrote, read, and understood English” and did not suffer from “any
medical problems that would impair him from understanding [Thompson].” Thompson then
informed the appellant
               that he had the right to remain silent, that if he gave up the right to
               remain silent, anything that he said would be used against him in
               court. He had the right to talk to a lawyer for advice before he said
               anything or I asked him any questions. If he couldn’t afford to hire
               a lawyer, one would be appointed for him without cost to him, if he
               wished one. He also had the right to stop answering any questions at
               any time in order to talk to a lawyer.
After informing the appellant of his constitutional rights, Thompson inquired if the appellant
understood his rights. The appellant responded affirmatively. According to Thompson, the patrol
car’s siren was not activated during the provision of the Miranda warning.

                Following the above exchange, Thompson obtained from the appellant more detailed
directions to the appellant’s mobile home, arriving at the mobile home at approximately 6:52 p.m.
Almost simultaneously, Corporal Mark Sloan, another officer of the La Vergne Police Department,
arrived at the Coulters’ home. The appellant directed both officers to an unlocked door, and the
officers entered the mobile home, loudly announcing their presence. Thompson testified at the
suppression hearing that his “most immediate concern” was determining whether anyone inside the
Coulters’ home required medical assistance. Thompson especially feared that Ms. Coulter might be
“alive and dying.” Additionally, Sloan was familiar with the Coulter family and indicated to
Thompson that a child might be present inside the home.

                Upon entering the Coulters’ home, the officers initially found themselves inside the
living room. Thompson also observed a “little kitchenette” to the left of the living room. A gun was
lying on a table in the kitchenette. No one responded to the officers’ repeated calls, and the officers
quickly determined that no one was present in either the living room or the kitchenette. Continuing
their search, they entered a hallway that appeared to lead to additional rooms. In the hallway, the
officers opened the first door that they encountered, revealing a darkened room. When Thompson
turned on the lights in the room, the officers observed Ms. Coulter’s body lying on a bed and “a
considerable amount of blood about the bed, spattered on the wall.”



                                                 -23-
                Sloan briefly examined Ms. Coulter, confirming that she was dead. Thereafter, Sloan
remained inside Ms. Coulter’s room, while Thompson returned to the living room and notified both
the police station and the “Rutherford County EMS coroner” about the discovery of Ms. Coulter’s
body. Thompson also went outside and erected a barrier around the mobile home using crime scene
tape. Finally, at approximately 7:00 p.m., Thompson returned with the appellant to the police
station. At the suppression hearing, Thompson confirmed that, to his knowledge, the police did not
have a warrant to search the appellant’s home on December 3, 1997.

                At approximately 7:07 p.m. on the same night, Detective Watson arrived at the
Coulters’ home, where he encountered Sloan and two additional officers. Watson immediately
entered the mobile home, viewed Ms. Coulter’s body, and began collecting evidence. Watson
recalled at the evidentiary hearing that, overall, he was at the crime scene for “close to an hour.”
During this time, Sergeant Hollins also arrived at the appellant’s home, and Hollins and Sloan
photographed the crime scene. Like Thompson, Watson testified at the suppression hearing that, to
his knowledge, the police never obtained a warrant to search the Coulters’ mobile home on
December 3, 1997. Watson conceded that he could have obtained a warrant.

               The evidence collected by Watson on the night of the murder included the gun found
on the kitchen table, a purse found on the floor of Ms. Coulter’s bedroom, and the sheets, pillows,
and pillowcases located on Ms. Coulter’s bed. Additionally, as later indicated at trial, Ms. Coulter’s
body was moved, uncovering a bullet hole in Ms. Coulter’s mattress. Upon further investigation,
Watson and Sloan discovered a spent bullet “under the mattress in the springs.”

               Meanwhile, at the police station, Thompson “booked” the appellant into the jail.
During booking procedures, Thompson asked the appellant if he wished to make a telephone call,
but the appellant refused Thompson’s offer. Thompson also read to the appellant an “admonition
and waiver of rights” form. The appellant confirmed that he understood his rights and, at
approximately 7:03 p.m., signed a written waiver of those rights.

                 Thompson testified at the suppression hearing that, following the appellant’s waiver
of his rights, the officer
                 entered into some conversation [with the appellant] about [the
                 appellant’s] background, where he was from, some personal things,
                 date of birth, what kind of work he did, what kind of illnesses he had
                 had in his life, any medications, if any, that he was taking at the time.
According to Thompson, the appellant recounted that he had previously been employed in the
aircraft industry and had sustained injuries during an accident at his workplace. However, the
appellant assured Thompson that he “was okay now.”

                Subsequently, Sergeant Hollins arrived at the police station. Hollins introduced
himself to the appellant and obtained permission from the appellant to conduct an audio taped
interview of the appellant. The interview commenced at 8:35 p.m., approximately one and one-half



                                                -24-
hours after the appellant’s waiver of his Miranda rights, and concluded at approximately 9:08 p.m.
Both Hollins and Thompson participated in questioning the appellant.

                Following the State’s presentation of evidence at the suppression hearing, defense
counsel argued in support of the appellant’s motions to suppress. With respect to the appellant’s
motion to suppress “the statement he gave to members of the Lavergne Police Department on or
about December 3, 1997,” defense counsel solely addressed statements made by the appellant to
Hollins and Thompson during the audio taped interview. Essentially, counsel asserted that the
appellant did not knowingly and voluntarily waive his Miranda rights before agreeing to participate
in the audio taped interview.

                  As to the appellant’s motion to suppress “the fruits of the search of his home on or
about December 3, 1997,” defense counsel conceded that Thompson and Sloan could enter the
Coulters’ mobile home without a warrant for the purpose of determining Ms. Coulter’s medical
condition and for the purpose of determining “if anyone else was lurking around.” Moreover, the
appellant appeared to concede that the police were entitled to seize anything in plain view of the
initial responding officers and only asked that any photographs taken of the crime scene and
“anything else they seized that was not in plain view, such as the bullet hole, the fragment, and so
forth, . . . be suppressed.” With respect to the photographing of the crime scene and the search for
and seizure of items outside the plain view of the officers, the appellant asserted that,
                  once they determine [Ms. Coulter’s] condition and determine that no
                  one else is there, they’ve got to get out, seal the scene, and go get a
                  search warrant, which they didn’t do.
In passing, the appellant disputed any claim that the appellant consented to a search of his home.

                In responding to the appellant’s motion to suppress his statement to officers of the
La Vergne Police Department, the prosecutor initially noted, “I didn’t hear anything about the
volunteered statement at the police station, and I assume by that that there’s not any opposition to
that.” Nevertheless, “to be on the safe side,” the prosecutor noted that volunteered or spontaneous
statements “made under these . . . type of conditions” are admissible. Additionally, the prosecutor
asserted that the appellant’s later waiver of his Miranda rights at the police station was knowing and
voluntary, emphasizing Thompson’s provision of the Miranda warning to the appellant on two
separate occasions.

               In response to the appellant’s motion to suppress evidence obtained pursuant to the
December 3, 1997 warrantless search, the prosecutor asserted that the officers’ entry into and search
of the appellant’s mobile home were justified by exigent circumstances. Moreover, the prosecutor
argued that the ensuing seizures of evidence were encompassed by the plain view doctrine.
Alternatively, he noted that the police would inevitably have discovered the seized items.

                At the conclusion of the suppression hearing, the trial court first denied the
appellant’s motion to suppress his statement to officers of the La Vergne Police Department. Like
the prosecutor, the trial court preliminarily noted that “the Defendant in this case present[ed] himself


                                                 -25-
voluntarily at the police station declaring that he in fact ha[d] . . . just killed [his] wife. . . . [T]here’s
no requirement that you stop somebody from making a voluntary statement. That’s clearly a
voluntary statement.” In this regard, the trial court additionally noted that the appellant volunteered
statements while confined in the prisoner compartment of Thompson’s patrol car, presumably
referring to the appellant’s remark of disbelief that he had killed his wife. Finally, like the
prosecutor, the trial court noted that Thompson subsequently provided Miranda warnings to the
appellant on two separate occasions. Accordingly, the trial court concluded that the appellant
participated in the audio taped interview at the La Vergne Police Department “freely and knowingly
. . . after a waiver of the right to remain silent under the Fifth Amendment as applicable by the
Fourteenth Amendment to the state.”

               As to the appellant’s motion to suppress evidence obtained pursuant to the warrantless
search of his home, the trial court concluded:
               [C]learly there are exigent circumstances here that allow the police to
               enter this residence. I can’t think of anything more exigent than to be
               presented with a situation where you are now knowledgeable that
               someone has been shot, in the view of the person who has said that,
               they believe that they’ve killed them. And the police certainly need
               to get to that scene to check out the condition of that person and to
               render aid or provide aid to them if they have not expired. So,
               certainly, exigency exists to get them there.

                 In addition, in this case Mr. Coulter, he’s cooperating. He’s directing
                 them to the place where this particular victim is located. He’s telling
                 them how to get in, in effect, consenting to the entry. And once
                 inside into this inquiry, the police are observant of the weapon in
                 plain view. They have a right to seize that.

                 And in processing this body, trying to move it, they certainly are
                 entitled to seize what is immediately in their plain view there that
                 depicts how this occurred, this death occurred. And I find nothing is
                 out of the ordinary about that.

                 . . . [T]he exigencies of the potential harm to the wife certainly gives
                 rise to them processing what is right in front of them and taking the
                 pillow, the sheets, the projectile.

        2.       Analysis
                 A.      Standard of Review
                 In State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996), our supreme court clarified that
a trial court’s findings of fact following a suppression hearing are conclusive on appeal unless the
evidence contained in the record preponderates otherwise. In this regard, the court observed:



                                                     -26-
                Questions of credibility of the witnesses, the weight and value of the
                evidence, and resolution of conflicts in the evidence are matters
                entrusted to the trial judge as the trier of fact. The party prevailing in
                the trial court is [therefore] entitled to the strongest legitimate view
                of the evidence adduced at the suppression hearing as well as all
                reasonable and legitimate inferences that may be drawn from that
                evidence.
Id. More recently, in State v. Walton, 41 S.W.3d 75, 81 n.3 (Tenn. 2001), the court reaffirmed that
“the standard of appellate review for findings of fact at a suppression hearing is that articulated by
this Court in Odom.” Of course, an appellate court’s review of the trial court’s factual findings is
not limited to evidence submitted at the suppression hearing but encompasses the entire record of
proceedings, including evidence submitted at trial. State v. Henning, 975 S.W.2d 290, 299 (Tenn.
1998). Moreover, an appellate court will review de novo the trial court’s application of the law to
factual findings. State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999).

                B.       Appellant’s Statements to Officers of the La Vergne Police Department
                In his brief on appeal, the appellant challenges the admissibility of statements that he
made to Officer Thompson in the lobby of the La Vergne Police Department and en route to the
appellant’s home prior to the discovery of Ms. Coulter’s body. In particular, the appellant focuses
his complaint upon statements that he made in response to Thompson’s questioning and that
concerned his commission of this offense, the location of Ms. Coulter’s body, and his address. The
appellant asserts that, in eliciting these statements, Thompson failed to comply with the procedures
set forth by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602
(1966), procedures intended to safeguard the privilege against compulsory self-incrimination
contained in the Fifth and Fourteenth Amendments to the United States Constitution. The State
responds that the appellant’s initial statements to Thompson “were voluntary and did not require
Miranda warnings.” We simply conclude that, because the appellant failed to challenge in the trial
court the statements at issue in this appeal, he has waived this issue.

                Tenn. R. Crim. P. 12(b)(3) provides that motions to suppress evidence must be raised
prior to trial. “The rule is applicable when a claim of a constitutional right is involved whose
violation would lead to suppression of evidence.” State v. Goss, 995 S.W.2d 617, 628 (Tenn. Crim.
App. 1998). Moreover, like other motions, a motion to suppress is governed by Tenn. R. Crim. P.
47. State v. Bell, 832 S.W.2d 583, 588 (Tenn. Crim. App. 1991); State v. Burton, 751 S.W.2d 440,
445 (Tenn. Crim. App. 1988). Tenn. R. Crim. P. 47 provides:
                A motion other than one made during a trial or hearing shall be in
                writing unless the court permits it to be made orally. It shall state
                with particularity the grounds upon which it is made and shall set
                forth the relief or order sought.
(Emphasis added).

                In this case, the appellant filed a written motion prior to trial that sought



                                                 -27-
                 to suppress the statement he gave to members of the Lavergne Police
                 Department on or about December 3, 1997. As grounds therefore
                 [he] would state and show unto the Court he was not adequately
                 advised of his rights or the waiving of the same and would further
                 show he did not waive his right to counsel prior to questioning.
Because the appellant made several statements to officers of the La Vergne Police Department on
December 3, 1997, the appellant’s motion does not clearly set forth the relief sought. Nevertheless,
as previously noted, the appellant clarified at the suppression hearing that his complaint lay in the
introduction into evidence at his trial of his audio taped statements to Thompson and Hollins. At
no time during the suppression hearing did the appellant challenge the introduction into evidence of
his initial statements to Thompson in the lobby of the La Vergne Police Department and en route to
the Coulters’ mobile home. Again, the State did raise the admissibility of the appellant’s
“volunteered statement at the police station,” seemingly referring to the appellant’s initial statement
to Lowery that he had killed his wife. The trial court’s ruling largely conformed to the arguments
of counsel. In other words, the trial court addressed the appellant’s motion to suppress as presented,
and its ruling did not reach the statements at issue in this appeal. Bell, 832 S.W.2d at 588-589.

                Of course, a trial court may address a motion to suppress at a later juncture in the
proceedings “for cause shown.” Tenn. R. Crim. P. 12(f); see also Bell, 832 S.W.2d at 589.
However, the appellant in this case also failed to challenge the admissibility of his initial statements
to Thompson either during the trial itself or in his motion for new trial. Tenn. R. App. P. 3(e) &
36(a); see also State v. Alvin B. Tate, No. W1999-01224-CCA-R3-CD, 2000 WL 791807, at *2
(Tenn. Crim. App. at Jackson, June 16, 2000). In sum, “[a] trial court cannot be held in error when
it was not given an opportunity to rule on the issue raised [on appeal].” State v. Walker, 910 S.W.2d
381, 396 (Tenn. 1995).

                Additionally, notwithstanding the appellant’s statement of the issue and his
accompanying argument, it is unlikely that the appellant’s complaint on appeal lies purely in the
admission at his trial of his initial statements to Thompson. Otherwise, even if worthy of merit, the
appellant’s complaint would afford him no relief. In other words, the admission of the appellant’s
initial statements to Thompson would be harmless error in light of other, overwhelming evidence
admitted at the appellant’s trial, including the audio cassette recording of the appellant’s interview
with Thompson and Hollins. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967).
Indeed, the appellant suggests in his brief that his complaint actually lies in the admission at his trial
of physical evidence discovered as a consequence of his initial statements to Thompson.
Specifically, the appellant observes, “The knowledge of the defendant’s address and other pertinent
information concerning the defendant was obtained by Sergeant Thompson during the initial
custodial interrogation of the defendant prior to Miranda warnings. . . . The[] [appellant’s] statements
led to the discovery of the victim and to the warrantless search that was performed by the LaVergne
Police Department.”

                  Of course, the appellant’s failure to challenge in the trial court the admissibility of
his initial statements to Thompson necessarily led to his failure to invoke the “fruit-of-the-poisonous-


                                                  -28-
tree” doctrine in favor of suppressing physical evidence obtained as a consequence of those
statements. Moreover, to the extent that he has attempted to invoke the doctrine on appeal, his
statement of the issue and his argument are inadequate. Tenn. R. App. P. 27(a)(4) & (7); Tenn. Ct.
of Crim. App. Rule 10(b). In any event, interpreting both the federal and state constitutions, our
supreme court recently concluded that
               a per se exclusionary rule, which would automatically exclude non-
               testimonial evidence obtained from a technical failure to give
               Miranda warnings, is not warranted. Instead, we hold that a
               defendant may seek suppression of non-testimonial evidence
               discovered through his or her unwarned statements only when the
               statements are the product of an actual violation of the privilege
               against self-incrimination, i.e., such as when actual coercion in
               obtaining the statement is involved or when the invocation of the
               right to remain silent or to have counsel present is not “scrupulously
               honored.”
Walton, 41 S.W.3d at 92. The appellant in this case does not allege “an actual violation of the
privilege against self-incrimination” within the meaning of Walton. Thus, without even addressing
the potential applications of the independent source and inevitable discovery doctrines, we can
conclude that the exclusionary rule would not extend to non-testimonial evidence obtained as a
consequence of the appellant’s initial statements to Thompson.

                Finally, we note in passing that the appellant also failed to invoke in the trial court
the “fruit-of-the-poisonous-tree” doctrine in favor of suppressing the appellant’s audio taped
statements to Thompson and Hollins. Indeed, the appellant does not claim in his brief on appeal that
his audio taped statements to Thompson and Hollins were the “fruit” of his earlier statements to
Thompson or otherwise challenge the introduction into evidence at his trial of the audio taped
statements. Tenn. R. App. P. 27(a)(4) & (7); Tenn. Ct. of Crim. App. Rule 10(b).1 This issue is
without merit.

                C.    Warrantless Search of Coulters’ Mobile Home
                The appellant also challenges the admissibility at his trial of the “fruits” of the
warrantless search of his home conducted by officers of the La Vergne Police Department on
December 3, 1997. As in the trial court, the appellant effectively concedes on appeal that Officer
Thompson and Corporal Sloan could lawfully enter his home on December 3, 1997, in order to
ascertain Ms. Coulter’s medical condition. However, he asserts that any subsequent search of his
home and the photographing and seizure of evidence found therein required a warrant under the
Fourth and Fourteenth Amendments to the United States Constitution. Again, the State responds
that exigent circumstances justified the officers’ entry into the appellant’s home and their ensuing
search for Ms. Coulter. Moreover, the State asserts that, “[o]nce inside, officers were entitled to


         1
            Significantly, moreov er, the appe llant relies solely up on federa l constitutional p rotections in challenging the
trial court’s den ial of his motion to suppres s. Cf. Oregon v. Elstad, 470 U.S. 298, 309, 105 S. Ct. 1285, 1293 (1985),
and Walton, 41 S.W.3d at 91-92.

                                                             -29-
seize any evidence in plain view.” Following careful consideration of this issue, we conclude that
the appellant is not entitled to relief.

                Preliminarily, we reiterate that, when a defendant files a pre-trial motion to suppress
pursuant to Tenn. R. Crim. P. 12(b)(3), it is the defendant’s obligation to identify the relief sought
and the grounds therefor. Tenn. R. Crim. P. 47. Moreover, at the suppression hearing, “the
defendant ha[s] the burden of going forward with the evidence, at least to the extent of identifying
the items he [seeks] to suppress, [although] the ultimate burden of proof for a warrantless search is
on the prosecution.” State v. Johnson, 705 S.W.2d 681, 683 (Tenn. Crim. App. 1985); see also
Burton, 751 S.W.2d at 445. In his written motion, the appellant broadly sought to suppress
                the fruits of the search of his home on or about December 3, 1997.
                As grounds therefore defendant would state and show unto the Court
                his residence was searched without a search warrant and no exigent
                circumstances were present justifying the search without a warrant.
At the suppression hearing, the appellant more specifically identified the items he sought to suppress.
We note, however, that the appellant’s identification of objectionable evidence at the suppression
hearing differs from his identification of objectionable evidence on appeal.

                 On appeal, the appellant asserts in his brief that “[t]he fruits of the warrantless search
included the [murder] weapon, sheets, pillowcases, bullet fragments, photographs and diagrams all
of which were submitted to the jury as evidence and which greatly prejudiced the [appellant].” Yet,
as noted previously, the appellant only objected at the suppression hearing to the introduction into
evidence of photographs taken of the crime scene during the challenged search and “anything . . .
[the police] seized that was not in plain view, such as the bullet hole, the fragment, and so forth.”
Although not entirely clear from the record, the appellant did not appear to be challenging in the trial
court the introduction into evidence of the murder weapon found on the Coulters’ kitchen table or
of the sheets, pillows, and pillowcases found on Ms. Coulter’s bed.2 Similarly, at no time during the
suppression hearing, during trial, or in his motion for new trial did the appellant object to the State’s
introduction into evidence of any “diagrams” or otherwise identify any diagrams as the fruit of the
challenged search. The record does reflect that the State introduced into evidence at the appellant’s
trial a diagram of the Coulters’ mobile home. However, the record does not reflect the source of this
diagram.

                For purposes of clarity, we also note that, in fact, the State did not introduce into
evidence at the appellant’s trial the sheets, pillows, or pillowcases seized from Ms. Coulter’s bed on
December 3, 1997. Again, Detective Watson testified at trial that the La Vergne Police Department
lost the pillows and pillowcases during the course of the murder investigation. Nevertheless, the
State did introduce into evidence Sergeant Hollins’ photographs of the murder scene, which depicted


         2
          Indeed, in addition to his Fourth Amendment claim, the appellant argued at the suppression hearing that any
relevance of the crime scene photographs that depicted Ms. Coulter’s body lying on her bed was substantially outweighed
by the potential for unfair prejudice bec ause the State had “the pillows and the she ets. They can bring those in and show
us.”

                                                          -30-
these lost items of evidence in addition to Ms. Coulter’s body, and testimony concerning the seizure
of these items from the Coulters’ mobile home. Moreover, we assume that the appellant’s reference
to “bullet fragments” is a reference to the spent bullet recovered from Ms. Coulter’s bed.3 The State
did not introduce this spent bullet into evidence at the appellant’s trial but did introduce into
evidence testimony concerning the bullet, including testimony by Special Agent Carman, the State’s
firearms identification expert.

                 Clearly, in the Fourth Amendment context,
                 [t]he exclusionary rule prohibits introduction into evidence of
                 tangible materials seized during an unlawful search and of testimony
                 concerning knowledge acquired during an unlawful search. Beyond
                 that, the exclusionary rule also prohibits the introduction of derivative
                 evidence, both tangible and testimonial, that is the product of the
                 primary evidence, or that is otherwise acquired as an indirect result
                 of the unlawful search.
Murray v. United States, 487 U.S. 533, 536-537, 108 S. Ct. 2529, 2533 (1988)(citations omitted);
see also Wong Sun v. United States, 371 U.S. 471, 484-486, 83 S. Ct. 407, 416 (1963); State v.
Clark, 844 S.W.2d 597, 600 (Tenn. 1992). However, on appeal, an appellant has an obligation to
state in his brief the issue presented for review, the facts relevant to that issue, his contentions with
respect to that issue, including the reasons why the contentions require appellate relief, and “the
precise relief sought.” Tenn. R. App. P. 27(a). In other words, even assuming a Fourth Amendment
violation, the appellant must clearly identify objectionable evidence admitted at his trial and explain
why the admission of that evidence requires appellate relief. If an appellant declines even to
accurately identify the objectionable evidence, he risks the refusal by this court to sift through both
the record and the myriad potential applications of the exclusionary rule to determine the scope of
relief warranted by a Fourth Amendment violation. Tenn. Ct. of Crim. App. Rule 10(b).

                At a minimum, the appellant has waived any objection to the introduction into
evidence at his trial of any diagrams and also the murder weapon, sheets, pillows, and pillow cases
seized by police on December 3, 1997, or testimony concerning those items. Nevertheless, we note
that, with the exception of any diagrams, the trial court did address the admissibility of all the items
challenged in this appeal. Accordingly, we will in turn evaluate the correctness of the trial court’s
determinations.

               The Fourth Amendment to the United States Constitution is applicable to the states
through the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691 (1961),
and provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated.” A search or seizure is
presumptively unreasonable if conducted without a warrant. Mincey v. Arizona, 437 U.S. 385, 390,


        3
          As already stated, the police additionally recovered a spent bullet from Ms. Coulter’s brain. Although the
appellant challenged in the trial court and challenges on appeal the State’s introduction into evidence of testimony
concerning this bullet, the appellant has consistently relied upon grounds other than a Fourth Amendment violation.

                                                       -31-
98 S. Ct. 2408, 2412 (1978); see also Illinois v. McArthur, 531 U.S. 326, __, 121 S. Ct. 946, 949
(2001); Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S. Ct. 2022, 2032 (1971).
However, the State may rebut the presumption if the search or seizure falls within one of several
“‘specifically established and well-delineated exceptions.’” Mincey, 437 U.S. at 390, 98 S. Ct. at
2412. In other words, “[w]hen faced with special law enforcement needs, diminished expectations
of privacy, minimal intrusions, or the like, . . . certain general, or individual, circumstances may
render a warrantless search or seizure reasonable.” McArthur, 531 U.S. at __, 121 S. Ct. at 949. As
earlier indicated, when the State invokes an exception to the warrant requirement in order to justify
a search or seizure, the burden rests upon the State to demonstrate that the circumstances of the case
lie within the scope of the exception. Coolidge, 403 U.S. at 455, 91 S. Ct. at 2032.

                A well-settled exception to the warrant requirement is a search conducted pursuant
to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-2044 (1973); State
v. Bartram, 925 S.W.2d 227, 230 (Tenn. 1996). Again, the trial court found that the appellant at
least consented to the entry of Thompson and Sloan into his home for the purpose of locating Ms.
Coulter. We need not address, however, whether the evidence contained in the record preponderates
in favor of this finding, nor need we address the scope of any consent by the appellant. Rather the
appellant concedes that the officers’ entry into his home was justified by exigent circumstances, and
we conclude that the consequent search of the home and the photographing and seizure of evidence
found therein were likewise “reasonable.”

                Notwithstanding the appellant’s concession, a review of the law pertinent to
warrantless searches in exigent or emergency situations is useful in evaluating the challenged police
conduct in this case. As correctly noted by the appellant, the United States Supreme Court in
Mincey, 437 U.S. at 395, 98 S. Ct. at 2415, “declined to recognize any special authority in the police
to conduct a warrantless investigation at the scene of a possible homicide.” 3 WAYNE R. LA FAVE,
SEARCH AND SEIZURE § 6.5(e), at 377 (West Publishing Co. ed., 3d ed. 1996); see also Flippo v.
West Virginia, 528 U.S. 11, 14, 120 S. Ct. 7, 8 (1999); Thompson v. Louisiana, 469 U.S. 17, 21, 105
S. Ct. 409, 411 (1984)(per curiam). As also acknowledged by the appellant, however, the Court in
Mincey did approve warrantless searches in exigent or emergency circumstances. 437 U.S. at 392,
98 S. Ct. at 2413; see also Arizona v. Hicks, 480 U.S. 321, 325-326, 107 S. Ct. 1149, 1153 (1987);
State v. Tyler, 598 S.W.2d 798, 801 (Tenn. Crim. App. 1980). Thus, “a warrantless entry by
criminal law enforcement officials may be legal when there is compelling need for official action and
no time to secure a warrant.” Michigan v. Tyler, 436 U.S. 499, 509, 98 S. Ct. 1942, 1949 (1978).

               More specifically, the Court in Mincey observed that police may enter a home and
conduct a search without a warrant “when they reasonably believe that a person within is in need of
immediate aid.” 437 U.S. at 392, 98 S. Ct. at 2413; see also Flippo, 528 U.S. at 14, 120 S. Ct. at 8;
Thompson, 469 U.S. at 21, 105 S. Ct. at 411; Tyler, 598 S.W.2d at 801. In this regard, the State
“must establish that the circumstances as they appeared at the moment of entry would lead a
reasonable, experienced law enforcement officer to believe that someone inside the house . . .
required immediate assistance.” United States v. Arch, 7 F.3d 1300, 1304 (7th Cir. 1993).
Additionally, if the police come upon the scene of a homicide, the officers may “make a prompt


                                                -32-
warrantless search of the area to see if there are other victims or if a killer is still on the premises.”
Mincey, 437 U.S. at 392, 98 S. Ct. at 2413.

               The Court in Mincey emphasized that any warrantless search “must be ‘strictly
circumscribed by the exigencies which justify its initiation.’” 437 U.S. at 393, 98 S. Ct. at 2413.
However, in Hicks, 480 U.S. at 325-326, 107 S. Ct. at 1153 (citation omitted), the Court further
clarified that
               Mincey v. Arizona, . . . in saying that a warrantless search must be
               “strictly circumscribed by the exigencies which justify its initiation,”
               was addressing only the scope of the primary search itself, and was
               not overruling by implication the many cases acknowledging that the
               “plain view” doctrine can legitimate action beyond that scope.

                The plain view doctrine provides that, under certain circumstances, the police may
seize evidence in plain view without a warrant. Coolidge, 403 U.S. at 465, 91 S. Ct. at 2037
(plurality opinion). Under the federal constitution, prerequisites to the application of the plain view
doctrine include: (1) the officer did not violate constitutional mandates in arriving at the location
from which the evidence could plainly be seen; (2) the officer had a lawful right of access to the
evidence; and (3) the incriminating character of the evidence was “immediately apparent,” i.e., the
officer possessed probable cause to believe that the item in plain view was evidence of a crime or
contraband. Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S. Ct. 2130, 2136-2137 (1993); Soldal
v. Cook County, Illinois, 506 U.S. 56, 65-66, 113 S. Ct. 538, 545-546 (1992); Horton v. California,
496 U.S. 128, 136-137, 110 S. Ct. 2301, 2308 (1990); Hicks, 480 U.S. at 326-327, 107 S. Ct. at
1153-1154. Accordingly, when an officer enters private premises pursuant to exigent or emergency
circumstances, the officer may generally seize any apparently incriminating items located on the
premises in plain view. Furthermore, an officer may “record by photography scenes presented to
[his] plain view.” Bills v. Aseltine, 958 F.2d 697, 707 (6th Cir. 1992); see also People v. Reynolds,
672 P.2d 529, 532-533 (Colo. 1983).

                 Applying the above principles to the facts of the instant case, the appellant’s report
to the police on December 3, 1997, that he had “just” killed his wife clearly warranted a “reasonable
belief” that a person inside the Coulters’ home was in need of immediate aid. Accordingly,
Thompson and Sloan could enter the Coulters’ home without a warrant and search for Ms. Coulter.
As noted by Circuit Judge (later Chief Justice) Warren Burger, “[e]ven the apparently dead often are
saved by swift police response.” Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir. 1963). See
also, e.g., People v. McGee, 489 N.E.2d 439, 440-443 (Ill. Ct. App. 1986)(applying the “emergency”
exception to the warrant requirement to a police officer’s entry into a residence in order to
investigate a “strong foul odor” of decomposing flesh as “the odor may have been caused by rotting
flesh of a living person after severe burns or other injury”); Colburn v. State, 966 S.W.2d 511, 519
(Tex. Crim. App. 1998)(observing that, although the police officer was informed of defendant’s
claim that he had just killed a girl in his apartment, “a reasonable officer . . . might have thought
there was a possibility that the victim might still be alive, but seriously injured,” and the officer’s



                                                  -33-
warrantless search of the apartment was justified under the “Emergency” or “Exigent Circumstances”
doctrine).

                Upon entering the appellant’s home and during the ensuing search for Ms. Coulter,
Thompson and Sloan observed in plain view the murder weapon, Ms. Coulter’s body, and the sheets,
pillows, and pillowcases on Ms. Coulter’s bed. The officers clearly possessed probable cause to
believe that these “items” were evidence of a crime. They were, therefore, entitled to seize these
items. Moreover, they were entitled to photograph the “scenes presented to their plain view.” Bills,
958 F.2d at 707. Less easily resolved, however, is the issue of whether Detective Watson and
Sergeant Hollins could enter the appellant’s home soon thereafter and, with Sloan’s assistance,
photograph and seize what was in plain view of the initial responding officers.

                In upholding “warrantless ‘second entries’ made by the police following the
termination of the emergency that justified an initial entry,” Wofford v. State, 952 S.W.2d 646, 653
(Ark. 1997), courts in several of our sister states have held that,
                when a law enforcement officer enters private premises in response
                to a call for help, and during the course of responding to the
                emergency observes but does not take into custody evidence in plain
                view, a subsequent entry shortly thereafter, by detectives whose duty
                it is to process evidence, constitutes a mere continuation of the
                original entry. Under such circumstances, it is permissible for the
                detectives to [seize,] photograph and take measurements [of], without
                a search warrant, . . . evidence which was in the plain view of the
                initial responding officers.
State v. Magnano, 528 A.2d 760, 764 (Conn. 1987); see also State v. Spears, 560 So.2d 1145, 1150-
1151 (Ala. Crim. App. 1989); Wofford, 952 S.W.2d at 653-654; State v. Johnson, 413 A.2d 931,
933-934 (Maine 1980); Hunter v. Commonwealth, 378 S.E.2d 634, 635-636 (Va. Ct. App. 1989);
La Fournier v. State, 280 N.W.2d 746, 750-751 (Wis. 1979). “Whether a subsequent entry is
detached from an initial exigency and warrantless entry or is a continuation of the lawful initial entry
can be determined only in light of the facts and circumstances of each case,” including the time
interval between the two entries and the extent to which the later officers do no more than the initial
responding officer or officers would have been justified in doing. La Fournier, 280 N.W.2d at 750;
cf. Tyler, 598 S.W.2d at 801-802.

                 Still other courts have relied upon rationales somewhat distinct from the “continuing
entry” rationale articulated above in upholding “warrantless ‘second entries.’” For example, the
United States Court of Appeals for the Fifth Circuit more broadly reasoned that the Fourth
Amendment to the United States Constitution protects a citizen against the invasion of privacy.
United States v. Brand, 556 F.2d 1312, 1317 (5th Cir. 1977). “Once that interest is invaded legally
by an official of the State, the citizen has lost his reasonable expectation of privacy to the extent of
the invasion.” Id. The court emphasized that additional investigators or officials must confine their
intrusion to the scope of the original invasion unless a warrant or one of the exceptions to the warrant
requirement justifies further police activity. Id. at n. 9; cf. Mincey, 437 U.S. at 391-392, 98 S. Ct.


                                                 -34-
at 2413 (rejecting the State’s argument that, due to the initial intrusion by police into the defendant’s
apartment, the defendant had a lessened expectation of privacy in his entire home); Thompson, 469
U.S. at 22, 105 S. Ct. 411-412 (reaffirming that police officers’ entry into the defendant’s home
under exigent circumstances did not diminish the defendant’s expectation of privacy in her entire
home).

                 Adopting yet another approach, the North Carolina Supreme Court has held that
                 when a law enforcement officer enters private premises in response
                 to a call for help and thereby comes upon what reasonably appears to
                 be the scene of a crime, and secures the crime scene from persons
                 other than law enforcement officers by appropriate means, all
                 property within the crime scene in plain view which the officer has
                 probable cause to associate with criminal activity is thereby lawfully
                 seized within the meaning of the fourth amendment. Officers arriving
                 at the crime scene thereafter and while it is still secured can examine
                 and remove property in plain view without a search warrant.
State v. Jolley, 321 S.E.2d 883, 886 (N.C. 1984); see also State v. Tidwell, 888 S.W.2d 736, 740-743
(Mo. Ct. App. 1994).

                 Regardless of the applicable rationale, we must agree with the trial court’s
determination that, under the facts of this case, the photographs of the crime scene, the murder
weapon, and the sheets, pillows, and pillowcases were not the fruit of a Fourth Amendment
violation. Our inquiry, however, is not complete as we must now turn to the issue of whether the
introduction into evidence of the spent bullet recovered from the box springs of Ms. Coulter’s bed
was likewise consistent with the Fourth Amendment.

               As noted earlier, the evidence adduced at the suppression hearing and at trial revealed
that, while Watson and Sloan were collecting evidence on December 3, 1997, paramedics moved
Ms. Coulter’s body, revealing a bullet hole in the mattress. Detective Watson and Corporal Sloan
then discovered the spent bullet “under the mattress in the springs.”

               Initially, because the police could lawfully seize Ms. Coulter’s body, the officers did
not violate constitutional mandates in arriving at the location from which the bullet hole could
plainly be seen. Cf. Hicks, 480 U.S. at 325-327, 107 S. Ct. at 1153-1154. Moreover, upon
observing the bullet hole, the police were entitled to seize the mattress. Therefore, to the extent the
officers moved the mattress and exposed the box springs to plain view, they similarly did not violate
constitutional mandates. However, it is unclear from the record whether the mattress was, in fact,
moved or whether any movement of the mattress exposed the bullet or another bullet hole to plain
view. In any event, as applied to the facts of this case, we agree with the observation that, when
               bullet holes [are] visible to the naked eye, . . . police [are] entitled to
               follow them to retrieve the bullets. This [is] not “a search” because
               once police [have] observed the holes, defendant [has] no reasonable
               expectation of privacy in the bullets.


                                                  -35-
State v. Arias, 661 A.2d 850, 857 (N.J. Super. Ct. Law Div. 1992);4 see also Commonwealth v.
Mitchell, 414 A.2d 1021, 1022-1023 (Penn. 1980); State v. Hebard, 184 N.W.2d 156, 168 (Wis.
1971), overruled on other grounds by Schimmel v. State, 267 N.W.2d 271 (Wis. 1978). In sum, we
conclude that the trial court properly denied the appellant’s motion to suppress. This issue is without
merit.

c.       Notes and Letters
                 Relying upon general evidentiary rules of relevance, the appellant also contends that
the trial court erred in denying his pre-trial motion to exclude from evidence the notes and letters
written by him to his wife prior to this offense. Tenn. R. Evid. 401, 402, & 403. The appellant
asserts that the letters were “not relevant to any of the issues presented and serve[d] only to inflame
the jury against the defendant based on his use of sexually graphic language.” The State responds
that the letters were relevant to the appellant’s “design and intent, which [are] critical elements of
first degree murder.” We conclude that the trial court properly denied the appellant’s motion.

         1.    Trial Court Proceedings
               The appellant filed a motion to suppress the disputed notes and letters on February
22, 1999. The trial court heard the appellant’s motion at the February 26, 1999 hearing. At this
hearing, defense counsel argued:
               These parties were obviously having marital problems. Many of
               these notes are Mr. Coulter’s complaint of lack of sexual relations,
               phrased one way or another, between he and his wife. The language
               in there would be somewhat prejudicial due to the graphic nature of
               it. They have zero relevance to this case. The complaint of lack of
               sexual matters between a husband and wife is made daily in this
               country. I do a ton of divorce work and it’s a gripe I all the time hear.
               Very few of these men go out there and kill their wives over that.

                So it doesn’t come close to making more probable than not any issue
                involved in this case. The only possible purpose of putting these type
                of notes in there would be to inflame the jury against my client.
In response, the prosecutor argued that the notes and letters were highly relevant but also noted that
the admissibility of the disputed documents was “more attuned to . . . prior bad acts.” The trial court


         4
           The New Jersey court in Arias, 661 A.2 d at 857 , analogized bullet holes in “w alls, furniture and plants” to
containers, echoing the United States Supreme Court’s observation in Arkansas v. Sanders, 442 U.S. 753, 764 n. 13, 99
S. Ct. 2586 , 2593 n.1 3 (1979 ), overruled on other grounds by California v. Acevedo, 500 U.S. 565, 579, 111 S. Ct. 1982,
1991 (1991), that “some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support
any reasonable expec tation of privacy because their contents can be inferred from their outward appearance.” Cf. Illinois
v. Andreas, 463 U.S. 765, 771-772, 103 S. Ct. 3319, 3324 (1983)(“[O]nce a container h as been fou nd to a certa inty to
contain illicit drugs, the contraba nd beco mes like ob jects physically within the p lain view of the p olice, and the claim
to privacy is lost.”)( footnote o mitted). Acc ordingly, the N ew Jersey co urt conclud ed that, “when police follow ed a hole
in the wall cavity, loveseat, floor or baseb oard, they d id not tramp le on Fourth Amendment rights.” Arias, 661 A.2d at
857.

                                                            -36-
deferred ruling upon the appellant’s motion, instead granting the parties an opportunity to submit
briefs.

               The prosecutor submitted a brief to the court on March 8, 1999. As relevant to this
appeal, the prosecutor explained that the notes and letters were highly relevant to the State’s case
because they demonstrated the nature of the Coulters’ relationship prior to Ms. Coulter’s murder,
including the appellant’s “sustained hostility and animosity toward his wife,” and also established
a possible motive for the killing. Accordingly, the notes and letters constituted an integral part of
the State’s proof of intent and premeditation.

                Defense counsel filed a response on March 15, 1999. In relevant part, defense
counsel again disputed the State’s claim that the documents were relevant. In this regard, counsel
noted that some of the letters are undated. Accordingly, “even assuming the notes were some
indication of the state of mind of the defendant, it is impossible to know when the defendant was
thinking these things.” Moreover, counsel asserted that, even if in close temporal proximity to Ms.
Coulter’s murder, statements by the appellant concerning the Coulters’ marital difficulties, including
a lack of sexual relations, were “not relevant to the alleged crime.” Finally, citing Tenn. R. Evid.
403, the appellant claimed that any relevance of the notes and letters was substantially outweighed
by “the danger of unfair prejudice and misleading the jury.”

               Subsequently, at a May 10, 1999 hearing, the Court ruled upon the appellant’s
motion:
               I’ve read these memorandums, and I’ve read the notes and the various
               letters that were submitted. And in this case it is incumbent upon me
               under the rules of evidence, particularly 403(b), I believe it is. Let me
               get that citation exactly correct. It may be 404(b). We have a
               determination first of the issue that this particular material would
               come in on, and thereafter have a balancing test to determine whether
               it should or should not - - it’s 404(b) - - come in.

               . . . [I]n this particular case, there is going to be an issue under 39-13-
               202 of design and intent of the Defendant because those are critical
               elements of the offense of first degree murder. And it appears that
               these notes and memorandums and letters are material to that issue.

               So then we go to the balancing test in this particular case on that
               material issue of the design and intent, and it appears that the
               probative value of these documents outweigh the prejudice to the
               Defendant . . . . So I’m finding that the letters which surround and
               precede the death are capable of introduction.
Immediately thereafter, defense counsel inquired if the trial court’s ruling extended to undated notes
and letters. The court responded that the undated documents



                                                  -37-
             appear all to fall within the same format of the discussion of the
             issues of the difficulties in the marriage relationship leading up to the
             discord, and I find that they are probative and that the probative value
             outweighs the prejudice.
On May 21, 1999, the trial court also entered into the record a written order denying the appellant’s
motion.

       2.       Analysis
                When the decision of a trial court is based on the relevance of the proffered evidence
under Tenn. R. Evid. 401, 402, and 403, the standard of review is abuse of discretion. State v.
DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). Yet, unsolicited by the appellant, the trial court in this
case apparently based its ruling upon Tenn. R. Evid. 404(b). Our supreme court has held that the
decision of a trial court to admit evidence of “other crimes, wrongs, or acts” under Rule 404(b)
“should be afforded no deference unless there has been substantial compliance with the procedural
requirements of the Rule.” DuBose, 953 S.W.2d at 652. The record, in fact, reflects the trial court’s
substantial compliance with those requirements. Nevertheless, as already noted, the appellant
predicates his complaint on appeal wholly upon Tenn. R. Evid. 401, 402, and 403. In short, we
choose to address the appellant’s complaint as presented to this court. Cf. Tenn. R. Crim. P. 52(b).

                Turning to the appellant’s complaint, relevant evidence is generally admissible
pursuant to Rule 402. “‘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. Relevant evidence need not
be sufficient to satisfy a party’s burden of proof; rather, “[e]ach item of proof may make a small,
incremental contribution to a party’s total efforts to meet its proof obligations.” NEIL P. COHEN ET
AL., TENNESSEE LAW OF EVIDENCE § 401.4, at 86 (Michie ed., 3d ed. 1995).


                However, Rule 403 prohibits the introduction of even relevant evidence “if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.” Specifically addressing the danger of unfair prejudice, this court has
elaborated that evidence should not be admitted when its primary purpose “is to elicit emotions of
‘bias, sympathy, hatred, contempt, retribution, or horror.’” State v. Collins, 986 S.W.2d 13, 20
(Tenn. Crim. App. 1998). That having been said, “unfair prejudice” should be carefully
distinguished from the prejudice “naturally flow[ing] from all admissible evidence [that] is intended
to persuade the trier of fact.” State v. Hayes, 899 S.W.2d 175, 183 (Tenn. Crim. App. 1995). In
other words, “the mere fact that evidence is particularly damaging does not make it unfairly
prejudicial.” State v. Gentry, 881 S.W.2d 1, 7 (Tenn. Crim. App. 1993); see also State v. Jerry Lee
Hunter, No. 01C01-9411-CC-00391, 1996 WL 10086, at *6 (Tenn. Crim. App. at Nashville, January
11, 1996)(observing that “any evidence, whether introduced by the prosecution or the defense, is
prejudicial”).




                                                 -38-
                 In determining the admissibility of evidence under the above rules, “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. Williamson, 919 S.W.2d 69, 78 (Tenn. Crim. App. 1995). In this case, the jury
was required to find beyond a reasonable doubt that the appellant committed an intentional and
premeditated killing. Tenn. Code Ann. § 39-13-202(a) (1997). “‘Intentional’ refers to a person who
acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the
person’s conscious objective or desire to engage in the conduct or cause the result.” Tenn. Code
Ann. § 39-11-302(a) (1997). Premeditation, in turn, “means that the intent to kill must have been
formed prior to the act itself.” Tenn. Code Ann. § 39-13-202(d). Moreover, premeditation entails
the exercise of reflection and judgment. Id.

                Because the appellant in this case did not dispute that he had killed his wife, the
principal issue at trial was whether the appellant possessed the requisite mental state, particularly
premeditation. Our supreme court has noted that “a determination of culpable mental states, such
as premeditation . . . , must [often] be inferentially made from the circumstances surrounding the
killing.” State v. Hall, 958 S.W.2d 679, 704 (Tenn. 1997). Among the relevant circumstances are
facts about the defendant's prior relationship and conduct with the victim from which the jury may
infer a motive. Id.; see also State v. Jones, 15 S.W.3d 880, 889 (Tenn. Crim. App. 1999); State v.
Schafer, 973 S.W.2d 269, 273 (Tenn. Crim. App. 1997); State v. Bordis, 905 S.W.2d 214, 222
(Tenn. Crim. App. 1995); Gentry, 881 S.W.2d at 5.

                Thus, for example, in affirming a defendant’s conviction of first degree murder in
State v. Stephen Lajaun Beasley, No. 03C01-9509-CR-00268, 1996 WL 591203, at **1 & 4 (Tenn.
Crim. App. at Knoxville, October 10, 1996), we observed that the jury could infer a motive and,
therefore, premeditation from the defendant’s “stormy relationship” with the victim, a relationship
that had culminated in a separation immediately prior to the murder. See also State v. Richardson,
875 S.W.2d 671, 674 (Tenn. Crim. App. 1993)(holding that the evidence adduced at trial including
evidence of ongoing animosity between the defendant and the victim was sufficient to sustain the
defendant’s conviction of attempted first degree murder); State v. Johnny O. Clark, No. 02C01-9708-
CR-00307, 1998 WL 170141, at *4 (Tenn. Crim. App. at Jackson, April 14, 1998)(observing that
the jury could infer premeditation from evidence that the “appellant and the victim had an oral
argument three days prior to the homicide”); cf. State v. Smith, 868 S.W.2d 561, 574 (Tenn.
1993)(confirming that, under Tenn. R. Evid. 404(b), “violent acts indicating the relationship between
the victim of a violent crime and the defendant prior to the commission of the offense are relevant
to show defendant’s hostility toward the victim, malice, intent, and a settled purpose to harm the
victim”); State v. Jackie Lee Redd, No. 03C01-9101-CR-0007, 1991 WL 136316, at *2 (Tenn. Crim.
App. at Knoxville, July 25, 1991)(observing that the defendant’s act of spitting on the victim
“revealed some deep animosity toward the victim, from which premeditation for the killing a few
minutes later can be inferred”). Conversely, in Schafer, 973 S.W.2d at 273, this court held that the
State had failed to prove premeditation due, in part, to the lack of any proof of motive: Specifically,
we stated that “the proof demonstrate[d] no argument between the [the defendant and the victim].



                                                  -39-
The proof further demonstrate[d] little to no prior relationship between the defendant and [the
victim].” Id.

                 In this case, although the State introduced other evidence concerning the Coulters’
relationship prior to this offense, the challenged notes and letters uniquely imparted the appellant’s
perspective on his marriage and on his ongoing dispute with his wife as the appellant wrote the notes
and letters contemporaneously with the dispute. Thus, by virtue of these documents, the jury was
able to more accurately assess the bitterness of the dispute, which persisted for at least one year prior
to this offense. Again, several of the documents reflect the appellant’s anger at his wife’s withdrawal
from any intimacy with him and possible infidelity despite her continued cohabitation with him.
More importantly, several documents also reflect the appellant’s fervent desire to reconcile with his
wife and his opposition to ending their marriage. In assessing whether this evidence could
reasonably affect the probability of premeditation in the context of other evidence introduced at trial,
the trial court was entitled to “draw upon common sense, general knowledge, and its understanding
of human conduct and motivation.” Hayes, 899 S.W.2d at 183.

                  We note in passing that the appellant does not argue on appeal that the undated notes
and letters were inadmissible due to any possible lack of temporal proximity to the murder. In any
event, this court has observed that, “while ‘a lapse of time may, of course, affect [the relevance of
evidence], it is the rational connection between events, not the temporal one, that determines whether
the evidence has probative value.’” Gentry, 881 S.W.2d at 7 (approving the admission of evidence
that the defendant threatened the victim over a period of years before murdering him)(alteration in
original); see also State v. Ronald Jeffery Davis, No. 03C01-9511-CC-00360, 1997 WL 184771, at
*3 (Tenn. Crim. App. at Knoxville, April 17, 1997)(approving the admission of evidence that the
defendant delivered a threatening message to the victim approximately four or five months before
attempting to murder him). Moreover, it is apparent from both the contents of the notes and letters
and other evidence introduced at trial that the appellant wrote them during the year preceding this
offense.

                Again, the appellant asserts that, notwithstanding any probative value of the notes and
letters, that value was substantially outweighed by the danger of unfair prejudice due to the
appellant’s use of “sexually graphic language.” We submit, however, that this language itself
possessed great probative value in showing the degree of the appellant’s animosity toward his wife.
Cf. State v. Audrey Martin, No. 299, 1990 WL 18173, at *3 (Tenn. Crim. App. at Knoxville, March
1, 1990). Moreover, having carefully reviewed the notes and letters, we cannot say that the
introduction of the challenged documents posed any significant danger of unfair prejudice. In sum,
we decline to disturb the trial court’s exercise of its discretion. This issue is without merit.

e.      Ms. Coulter’s Plans to Move
                Relying once more upon general evidentiary rules of relevance, the appellant further
argues that the trial court erred in denying his pre-trial motion to exclude from evidence any proof
of Ms. Coulter’s plans to move from the Coulters’ mobile home into an apartment. The appellant
asserts that he was “completely unaware” of Ms. Coulter’s plans to move; therefore, this evidence


                                                  -40-
was irrelevant to the principal issue at his trial of whether he possessed the requisite mental state for
first degree premeditated murder and, moreover, “served to the substantial prejudice of the defendant
[and] confused the jury.” The State disagrees, and so do we.

                Initially, the State correctly notes in its brief that the fact of the Coulters’ imminent
separation, whether known by the appellant or not, substantiated the deterioration of their
relationship prior to this offense. More importantly, the appellant’s assertion that, at the time of the
murder, he was “completely unaware” of his wife’s plans “to relocate herself” is belied by the record
before this court. Briefly recapitulating, the appellant himself stated to police that his wife had
repeatedly informed him of her intention to move as soon as she was financially able to do so and
that his wife had further indicated her intention to obtain a restraining order when she moved. The
appellant was served with an order of protection only hours prior to the murder. Moreover,
photographs of the crime scene depict several moving boxes in Ms. Coulter’s bedroom. Sergeant
Hollins further testified that clothes were lying openly about Ms. Coulter’s bedroom, seemingly in
preparation for packing. The appellant apparently had free access to Ms. Coulter’s bedroom as there
was no lock on the bedroom door. Additionally, in one of his letters to Ms. Coulter, the appellant
complained that she was “collecting boxes, getting newspapers and calling about places to live.”
Although this letter was undated, the appellant referred in the letter to the sexually explicit letters
that were written by his wife and that he discovered approximately four months prior to this offense.
In sum, the disputed proof was relevant and posed no danger of unfair prejudice or confusion of the
issues. Accordingly, the appellant’s claim is without merit.

f.      Sybil Victory’s Testimony
                The appellant next contends that the trial court erred in overruling his objection to
testimony by Sybil Victory concerning her telephone conversation with Ms. Coulter approximately
five or six months prior to this offense and statements that were made in the background by a man
to whom Ms. Coulter referred as “Larry.” The appellant rests his challenge upon Tenn. R. Evid. 602,
arguing that the State failed to establish that Ms. Victory possessed “personal knowledge” “as to the
sound of [the appellant’s] voice and did not have the ability to identify his voice.” The State
responds:
                Ms. Victory reasonably thought that she could identify the voice she
                heard yelling at Mrs. Coulter as the defendant’s. She was rigorously
                cross-examined about the basis of her identification. The trial court
                correctly allowed the jury to determine the weight to be given Ms.
                Victory’s identification of the defendant.
We conclude that this issue, also, is without merit.

               Initially, we note that Victory did not identify the voice in question as the voice of the
appellant. Indeed, she specifically conceded that this telephone conversation was the sole occasion
on which she had ever heard the voice in question. Again, Victory merely testified that she called
Ms. Coulter “at home,” a man’s voice answered the telephone, Ms. Coulter subsequently referred
to the man who answered the telephone as “Larry,” and Victory overheard this man cursing at Ms.
Coulter and complaining concerning Ms. Coulter’s use of the telephone. There is no dispute that


                                                  -41-
Victory had personal knowledge of these facts. Accordingly, Victory’s testimony was entirely
consistent with Tenn. R. Evid. 602.

               At trial, without citing the pertinent rule of evidence, the appellant objected to
Victory’s testimony on the basis that the State had failed to “lay a foundation that that was Larry
Coulter that she . . . heard.” To the extent the appellant is, in fact, relying upon Tenn. R. Evid.
104(b) and Tenn. R. Evid. 901 in this appeal, we consider his brief to be inadequate, Tenn. Ct. of
Crim. App. Rule 10(b); Tenn. R. App. P. 27(a)(7), nor is relief otherwise warranted. Tenn. R. Crim.
P. 52(b).

g.     Fawn Jones’ Testimony
                Citing Tenn. R. Evid. 615, the appellant next asserts that the trial court erred in
overruling his objection to testimony by Fawn Jones notwithstanding her presence in the courtroom
when the State played to the jury the video cassette recording of McVicker’s deposition. The State
responds that the trial court acted within its discretion, and we agree.

       1.      Trial Court Proceedings
               On December 22, 1998, the State filed a motion pursuant to Tenn. R. Evid. 615 to
sequester all witnesses testifying at the appellant’s trial, which motion the trial court granted.
Subsequently, during the appellant’s trial, defense counsel interrupted the testimony of a State’s
witness, Fawn Jones. In a bench conference outside the jury’s hearing, defense counsel notified the
court that
               [co-counsel] has just made me aware this witness was in the
               courtroom earlier during at least part, if not all, of Mr. McVicker’s
               testimony, so she has apparently violated the rule that we had in effect
               in this case. So I object to her being able to testify at all.
The prosecutor responded that Jones had entered the courtroom during a lull in proceedings and that
he had immediately asked her to leave the courtroom. The prosecutor asserted, “And at that time
there was no witness nor was the tape being played.” Defense counsel, in turn, acknowledged that
“[the prosecutor] did ask her to leave, apparently as soon as he knew about it.” Following this
exchange, the trial court determined:
               This is within the discretion of the trial court. And considering what
               testimony she’s testifying about and the relationship of what
               previously was testified, I overrule the objection.

       2.      Analysis
               Tenn. R. Evid. 615 is commonly referred to as the “rule of sequestration” and
provides:
               At the request of a party the court shall order witnesses, including
               rebuttal witnesses, excluded at trial . . . . The court shall order all
               persons not to disclose by any means to excluded witnesses any live
               trial testimony or exhibits created in the courtroom by a witness.



                                                -42-
“The purpose of the rule is to prevent one witness from hearing the testimony of another and
adjusting his testimony accordingly.” State v. Harris, 839 S.W.2d 54, 68 (Tenn. 1992); see also State
v. Larry S. Brumit, No. M1999-00154-CCA-R3-CD, 2000 WL 502681, at *14 (Tenn. Crim. App.
at Nashville, April 28, 2000), perm. to appeal denied, (Tenn. 2000). “‘The rule’ may be invoked at
anytime and is mandatory.” State v. Anthony, 836 S.W.2d 600, 605 (Tenn. Crim. App. 1992).

                  Notwithstanding its mandatory nature, the rule does not set forth a sanction for its
violation. However, this court has observed that, in the most egregious cases, possible sanctions
include the declaration of a mistrial or the preclusion of a witness from testifying. Anthony, 836
S.W.2d at 605; State v. Jackie Dean Mayes, Jr., No. 01C01-9806-CR-00265, 1999 WL 771011, at
*3 (Tenn. Crim. App. at Nashville, September 30, 1999). In contrast, “[i]f a witness inadvertently
and unintentionally hears some trial testimony, the sense of the rule would permit the judge to allow
the witness to testify if fair under the circumstances.” Tenn. R. Evid. 615, Advisory Commission
Comments. In those less egregious cases, “[a] violator may be subjected to cross-examination about
the incident . . . [and] [a] jury could be instructed to consider the violation of the sequestration order
in assessing the witnesses’ testimony.” Anthony, 836 S.W.2d at 605; see also Mayes, No. 01C01-
9806-CR-00265, 1999 WL 771011, at *3.

                The trial judge is afforded wide discretion in determining whether a case is
sufficiently egregious to warrant either the declaration of a mistrial or the preclusion of a witness
from testifying. Brumit, No. M1999-00154-CCA-R3-CD, 2000 WL 502681, at *14. For the
purpose of determining both the facts of the violation and the appropriate sanction, trial courts in
Tennessee generally hold a jury-out hearing. State v. Victoria Voaden, No. 01C01-9305-CC-00151,
1994 WL 714223, at *9 (Tenn. Crim. App. at Nashville, December 22, 1994). Once the facts of the
violation are established, the appropriate sanction will generally depend upon the following factors:
(1) the harm caused by the sequestration violation; (2) the importance of the testimony of the witness
who ignored the sequestration decree; and (3) who was at fault in the violation, i.e., was it accidental
or intentional? NEIL P. COHEN ET AL., TENNESSEE LAW OF EVIDENCE § 615.4, at 431 (Michie ed.,
3d ed. 1995).

                 On appeal, in reviewing the trial court’s exercise of its discretion, this court must
consider both “the seriousness of the violation and the prejudice, if any, that enured to the
[appellant].” State v. James Edward French, No. 03C01-9503-CR-00096, 1996 WL 138289, at *6
(Tenn. Crim. App. at Knoxville, March 28, 1996). However, it is not entirely clear from the record
in this case that a sequestration violation occurred. The representations of defense counsel and the
prosecutor significantly differed, and the trial court did not conduct a jury-out hearing for the purpose
of determining whether or not Jones was exposed to McVicker’s testimony and, if so, to what extent.

                Indeed, the appellant did not request an evidentiary hearing. Of course, the
appellant’s failure raises the issue of whether or not the trial court was required to conduct an
evidentiary hearing sua sponte. Cf., e.g., State v. Nguyen, 756 A.2d 833, 835 & 840-844 (Conn.
2000)(interpreting its own, distinct rule of sequestration and holding that, “although the trial court
must conduct a preliminary inquiry of counsel when presented with a facially credible allegation that


                                                  -43-
a sequestration order has been violated, whether to conduct an evidentiary hearing sua sponte is a
matter within the trial court’s discretion”). However, we note that, notwithstanding any error by the
trial court, the appellant did not attempt to make an offer of proof for purposes of appeal.

                In any event, even assuming that Jones was present in the courtroom when the State
played to the jury the video cassette recording of McVicker’s testimony, it is undisputed that the
violation of the rule was purely accidental. Moreover, our review of the record satisfies us that no
prejudice enured to the appellant. Although Jones’ testimony was related to McVicker’s testimony
in the very broad sense that both testimonies concerned the breakdown of the appellant’s relationship
with his wife at the time of this offense, the specific facts to which each witness testified were
discrete. More importantly, Jones’ testimony was largely cumulative of other evidence adduced at
trial. Accordingly, the possibility that Jones altered her testimony to conform to McVicker’s was
minimal. Finally, we must agree with the State that the appellant’s failure to cross-examine Jones
concerning her exposure to McVicker’s testimony or request a jury instruction concerning Jones’
exposure suggests an absence of any urgent concern by the appellant about possible prejudice. Tenn.
R. App. P. 36(a). This issue is without merit.5

h.      Bullet Recovered from the Victim’s Body
                The appellant couches his next complaint in the following manner: “The trial court
erred in overruling defendant’s objection to allowing the State to enter testimony regarding the
alleged bullet recovered from the victim’s body due to the fact that the bullet was not made available
to the defendant as the same was lost by the LaVergne Police Department.” However, the
appellant’s argument encompasses testimony by the State’s firearms identification expert concerning
both the bullet recovered from Ms. Coulter’s bed and the bullet recovered from her brain.
Specifically, the appellant cites State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), and argues that the
loss of both bullets by the La Vergne Police Department resulted in a trial lacking fundamental
fairness. Alternatively, the appellant cites Tenn. R. Evid. 403 and asserts that, due to the loss of the
bullets, any probative value of the disputed testimony was substantially outweighed by the danger
of unfair prejudice. The State responds that, “because the defendant was not denied a fair trial by
the introduction of the evidence, the defendant is not entitled to any relief on this issue.” We
conclude that the trial court properly overruled the appellant’s objection.

         1.      Trial Proceedings
                 As noted previously, the State introduced at trial the testimony of Donald Carman,
an expert in firearms identification employed by the TBI. Again, Carman testified that he performed
testing on the appellant’s Taurus .38 Special revolver, the bullet recovered from Ms. Coulter’s bed,
and the bullet recovered from Ms. Coulter’s brain, and he determined that the bullets were fired from
the appellant’s revolver. Defense counsel interjected an objection to Carman’s testimony on the


         5
          The advisory commission comments to Tenn. R. Evid. 615 state: “This rule does not prohibit a witness from
reviewing depositions of other witnesses before testifying.” See also State v. Jackson, 889 S.W.2d 219, 223 (Tenn. Crim.
App. 1993). However, in light of the purpo se of the rule, we doubt this state ment enco mpasses d epositions tha t a party
intends to introduce at trial in lieu of live testimony. Tenn. R. Crim. P. 15.

                                                          -44-
basis that both bullets were “unavailable.” The State responded that the appellant had been provided
Carman’s report well in advance of trial and, moreover, questioned whether the appellant would have
conducted independent testing of the bullets had they been available. The trial court summarily
overruled the objection.

        2.      Analysis
                In Ferguson, 2 S.W.3d at 915, our supreme court addressed “what consequences flow
from the State’s loss or destruction of evidence alleged to have been exculpatory.” Specifically, the
court rejected the analysis set forth in Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333 (1988),
to the extent the United States Supreme Court required that a defendant show bad faith on the part
of police in order to establish a denial of due process of law. Ferguson, 2 S.W.3d at 917. Instead,
the court applied due process principles embodied in Article 1, Section 8 of the Tennessee
Constitution and “promulgate[d] . . . an analysis in which the critical inquiry is: Whether a trial,
conducted without the [lost or] destroyed evidence, would be fundamentally fair?” Id. at 914
(footnote omitted).

               In resolving the question of fundamental fairness, a court must first determine
whether the State had a duty to preserve the lost or destroyed evidence. Id. at 917. In this regard,
the supreme court observed that, “[g]enerally speaking, the State has a duty to preserve all evidence
subject to discovery and inspection under Tenn. R. Crim. P. 16, or other applicable law.” Id.
However, for purposes of fundamental fairness, the court seemingly cited with approval the
following statement by the United States Supreme Court in California v. Trombetta, 467 U.S. 479,
488-489, 104 S. Ct. 2528, 2534 (1984)(footnote and citation omitted):
               Whatever duty the Constitution imposes on the States to preserve
               evidence, that duty must be limited to evidence that might be
               expected to play a significant role in the suspect’s defense. To meet
               this standard of constitutional materiality, evidence must both possess
               an exculpatory value that was apparent before the evidence was
               destroyed, and be of such a nature that the defendant would be unable
               to obtain comparable evidence by other reasonably available means.
Ferguson, 2 S.W.3d at 917.

                Only if the proof demonstrates the existence of a duty to preserve and further shows
that the State has failed in that duty must a court turn to a balancing analysis involving consideration
of the following factors:
                1. The degree of negligence involved;
                2. The significance of the destroyed evidence, considered in light of
                the probative value and reliability of secondary or substitute evidence
                that remains available; and
                3. The sufficiency of the other evidence used at trial to support the
                 conviction.
Id. (footnote omitted). See also State v. Ricky Hill Krantz, No. M1999-02437-CCA-RM-CD, 2000
WL 59915, at *1 (Tenn. Crim. App. at Nashville, January 25, 2000), perm. to appeal denied, (Tenn.


                                                 -45-
2000). If the court’s consideration of these factors reveals that a trial without the missing evidence
would lack fundamental fairness, the court may consider several options. For example, the court
may dismiss the charges or, alternatively, provide an appropriate jury instruction. Id. Again, the
appellant in this case asserts only that the trial court should have excluded Carman’s testimony
concerning testing performed upon the spent bullets.

                 Applying the above analysis to the instant case, we note that, although furnished with
Carman’s report prior to trial, the appellant has never demonstrated any flaw in Carman’s testing
methodology or otherwise questioned the results of Carman’s testing. Indeed, the appellant has
never disputed that he killed his wife using the Taurus .38 Special revolver, nor does the record
contain a scintilla of evidence suggesting otherwise. In short, to conclude that the bullets possessed
exculpatory value on the basis of the record before this court would constitute an exercise in pure
speculation. Cf. Trombetta, 467 U.S. at 488-491, 104 S. Ct. at 2534-2535 (holding that, when “the
chances [were] extremely low that preserved samples would have been exculpatory,” the Due
Process Clause of the Fourteenth Amendment did not require law enforcement agencies to preserve
breath samples in order to introduce the results of breath-analysis tests at trial); Youngblood, 488
U.S. at 56 n. 1, 109 S. Ct. at 336 n.1 (noting that “[t]he possibility that . . . semen samples could have
exculpated respondent if preserved or tested is not enough to satisfy the standard of constitutional
materiality in Trombetta”). Therefore, the appellant is not entitled to relief under either the federal
or state constitution. Moreover, we decline to address the appellant’s claim under our rules of
evidence as the appellant raises the admissibility of the spent bullets under Tenn. R. Evid. 403 for
the first time in this appeal. “[A] party is bound by the ground asserted when making an objection.
The party cannot assert a new or different theory to support the objection in the motion for a new
trial or in the appellate court.” State v. Adkisson, 899 S.W.2d 626, 634-635 (Tenn. Crim. App.
1994). This issue is without merit.

i.      The Jury’s “Dry-Firing” of the Murder Weapon
                The appellant also argues that the trial court erred in overruling his objection to the
State’s request that the jury be permitted to “dry-fire” the murder weapon during his trial. The
appellant relies upon general evidentiary rules of relevance, including Tenn. R. Evid. 401, 402, and
403. The appellant also vaguely asserts that permitting the jurors themselves to participate in a
courtroom demonstration is “highly irregular.” The State primarily responds that, in contrast to the
appellant’s arguments on appeal, the appellant’s “arguments at the time of his objection [only] noted
that the jury would be allowed the opportunity to pull the weapon’s trigger during its deliberation.”
We again conclude that the appellant is not entitled to relief.

        1.       Trial Court Proceedings
                 In summary, Special Agent Carman testified at the appellant’s trial concerning the
steps required to fire the appellant’s Taurus .38 Special revolver and the amount of pressure required
to pull the trigger on the revolver. Following Carman’s testimony and in the presence of the jury,
the prosecutor inquired of the trial court:




                                                  -46-
                  Judge, I would like for the members of the jury to stand down and
                  each one to pull the trigger of that gun so that they can find out for
                  themselves how easy or difficult it is.
Still in the jury’s presence, defense counsel responded that “[t]here’s no sense in them coming down
and pulling the trigger on this.” Specifically, he observed that the weapon was an exhibit, and the
jury members would have an opportunity to pull the trigger during their deliberations. In turn, the
prosecutor explained to the court:
                  Judge, I’d just like to make sure that they did. I think it’s important.
                  [The appellant] said something about I walked in there and then there
                  was a pop and then there was another pop in part of his statement. It
                  sounds like that this gun just kind of went off by itself.
Upon receiving this explanation, the court overruled the appellant’s objection and permitted the
demonstration.

        2.       Analysis
                 As conceded by the appellant, whether to allow a courtroom demonstration is a matter
that rests within the sound discretion of the trial court and will not be reversed on appeal absent an
abuse of discretion. State v. Underwood, 669 S.W.2d 700, 704 (Tenn. Crim. App. 1984)(stating that
“we see no reason why [a reenactment of the second degree murder by the sheriff and a police
officer] is not admissible within the discretion and control of the trial judge”); State v. Billy Gene
DeBow, Sr., No. M1999-02678-CCA-R3-CD, 2000 WL 1137465, at **10-11 (Tenn. Crim. App. at
Nashville, August 2, 2000), perm. to appeal denied, (Tenn. 2001)(approving a courtroom
demonstration by a TBI special agent of the shell ejection pattern of the shotgun used in a first degree
murder); Ronald Bradford Waller v. State, No. E1999-02034-CCA-R3-PC, 2000 WL 982103, at
**12-16 (Tenn. Crim. App. at Knoxville, July 18, 2000), perm. to appeal denied, (Tenn.
2001)(approving a courtroom demonstration by a testifying defendant of the manner in which he
allegedly fended off an attack by the murder victim). Obviously, the trial court’s exercise of
discretion is circumscribed by the Tennessee Rules of Evidence. In this regard, “[d]emonstrative
evidence is admissible only if relevant under [Tenn. R. Evid.] 401.” Waller, No. E1999-02034-
CCA-R3-PC, 2000 WL 982103, at *15. In other words, demonstrative evidence should “assist the
trier of fact in understanding and evaluating the other evidence offered at trial.” Id. Moreover,
“[d]emonstrative evidence is . . . often attacked . . . on grounds that it is too prejudicial under Rule
403.” Id.

                That having been said, we must agree with the State that defense counsel based his
objection in the trial court solely upon the timing of the demonstration rather than the relevance of
the demonstration, any danger of unfair prejudice, or any “highly irregular” aspect of the
demonstration. A generous interpretation of defense counsel’s objection would encompass the
argument that the probative value of the demonstration was substantially outweighed by the
consideration of “waste of time” under Tenn. R. Evid. 403. The appellant echoes this argument in
his brief on appeal by his repeated citation to Tenn. R. Crim. P. 30.1.




                                                 -47-
                We reiterate that a party is bound by the ground asserted when making an objection,
State v. Adkisson, 899 S.W.2d 626, 634-635 (Tenn. Crim. App. 1994), and we will not hold a trial
court in error when it was not provided an opportunity to rule on the issue raised on appeal, State v.
Walker, 910 S.W.2d 381, 396 (Tenn. 1995). Therefore, affording the appellant the generous
interpretation of his objection, we will only address whether the probative value of the demonstration
in this case was substantially outweighed by the consideration of “waste of time” under Tenn. R.
Evid. 403.

                 The State was required to prove beyond a reasonable doubt that the appellant
committed an intentional and premeditated killing. Tenn. Code Ann. § 39-13-202(a) (1997). The
principal issue at trial was whether or not the appellant possessed the requisite mental state of intent
and premeditation, albeit the appellant’s defense focused upon the requirement of premeditation.
As noted by the prosecutor, the appellant’s audio taped account of the murder indicated that the
appellant could not recall consciously exerting pressure on the trigger of his revolver; rather, he
simply heard the revolver discharge. In light of the appellant’s account, the State needed to eliminate
any reasonable doubt stemming from a possibility that the weapon accidentally discharged or
otherwise discharged without the appellant’s “conscious objective or desire.” Tenn. Code Ann. §
39-11-302(a) (1997). Therefore, the amount of pressure required to pull the trigger of the revolver,
particularly in the double action mode, was relevant, and permitting each member of the jury to pull
the trigger undoubtedly assisted him or her in understanding Special Agent Carman’s testimony.
Indeed, one court has observed that
                 [d]emonstrating the working of machinery is an accepted part of
                 evidence. . . . “In general, when a question arises whether at a certain
                 machine, house, field, mine, or other thing, a certain act can be done
                 under given conditions of time, strength, skill, or achievement, one
                 way [to obtain the answer] is to speculate about it, and another way
                 is to try it; and it is a crude error to suppose that the law of evidence
                 here prefers speculation to experience, abhors actual experiment, and
                 delights in guesswork.”
Bowlin v. State, 823 P.2d 676, 678 (Alaska Ct. App. 1991)(alteration in original).

                Defense counsel correctly noted to the trial court that the jury could examine the
weapon during the course of its deliberations, including pulling the trigger. See, e.g., State v. Donald
Korpan, No. 89-261-III, 1991 WL 1345, at **8-9 (Tenn. Crim. App. at Nashville, January 11, 1991);
cf. State v. Rainer, 411 N.W.2d 490, 498-499 (Minn. 1987); State v. Thompson, 524 P.2d 1115,
1119-1120 (Mont. 1974); State v. Chamberlain, 819 P.2d 673, 681-683 (N.M. 1991). However,
without explanation, defense counsel further argued that the jury’s ability to examine the weapon
during deliberations precluded a courtroom examination. In light of the relevance of the
demonstration, we believe that the trial court acted within its discretion in determining that a
courtroom demonstration was an “efficient use of judicial resources.” NEIL P. COHEN ET AL.,
TENNESSEE LAW OF EVIDENCE § 403.6, at 154 (Michie ed., 3d ed. 1995). This issue is without merit.

j.      McVicker’s Testimony


                                                 -48-
                The appellant additionally contends that the trial court erred in permitting Robert
McVicker, a State’s witness, to testify by videotaped deposition pursuant to Tenn. R. Crim. P. 15.
In this regard, the appellant specifically argues that McVicker was not “unavailable” within the
meaning of Tenn. R. Crim. P. 15(h). The State simply responds that “exceptional circumstances”
warranted the use of a deposition. We conclude that any error by the trial court was harmless.

       1.       Trial Court Proceedings
                On May 6, 1999, the State filed a motion asking that the trial court “allow the
testimony of Mr. Robert McVicker . . . to be taken prior to trial, preserved on videotape and played
for the jury during the trial.” In the motion, the State asserted that McVicker would be unavailable
on the scheduled trial dates. The trial court conducted a hearing on the State’s motion on May 10,
1999. At the hearing, the State presented the following testimony by McVicker in support of its
motion:
                [The week of the appellant’s trial] has been scheduled in my family
                for vacation for a couple of months. My wife is also employed with
                the Metro Davidson County Board of Education as an educator, and
                that is the week that’s pretty much mandated by her occupation for
                vacation. In addition to that, my stepchildren, that’s the last week
                that they’re with us before going back to their father’s for the
                summer. So that was the only week that we could come up with that
                we could go on vacation.

               Following McVicker’s testimony, the prosecutor clarified that McVicker had been
subpoenaed as a witness at the appellant’s trial, but he maintained that, under Tenn. R. Crim. P. 15,
“exceptional circumstances” warranted the witness’ testimony by deposition:
               Your Honor, the State would argue that the exceptional circumstances
               are these, is that [he has] very limited knowledge. [His] testimony, the
               State anticipates, will be less than five minutes . . . , that [he] will be
               unavailable during the week of that trial. [He is] available any time
               other than that week of trial. [He is] making [himself] available. [He]
               want[s] to honor the subpoena. [He has] come here and brought this
               to the Court’s attention through me so that [he] can comply with the
               orders of this Court.

               And I think that, based on all of [his] circumstances and the situation,
               I think there are unusual circumstances that would grant it.
The prosecutor also noted that McVicker’s deposition would be admissible at the appellant’s trial
as former testimony pursuant to Tenn. R. Evid. 804(b)(1).

               Upon further inquiry by the trial court, the prosecutor added that the State had
subpoenaed 43 witnesses, and only McVicker and one additional witness had raised scheduling
conflicts. Accordingly, the prosecutor noted that he would prefer to depose McVicker rather than
request a continuance of the murder trial.


                                                -49-
               In response, defense counsel disputed that McVicker’s testimony satisfied the
definition of unavailability under either Tenn. R. Crim. P. 15 or Tenn. R. Evid. 804. Moreover,
defense counsel disputed the existence of “exceptional circumstances” warranting McVicker’s
testimony by deposition.

               In turn, the prosecutor suggested that the court reschedule the trial a week earlier than
originally planned. Apparently, however, the parties were unable to reach an agreement on
rescheduling. Ultimately, the trial court announced:
               I tell you what, in this matter go ahead and authorize the taking of the
               depositions, and we’re going to start the trial as scheduled. And if
               [the State] insist[s] on wanting to advance the depositions, then I’ll
               have to rule on that issue, but at this point in time I’ll reserve it.

                 Although not entirely clear from the record, the deposition of McVicker seemingly
occurred on the Friday immediately preceding the appellant’s trial. According to the videotape, the
trial court presided over the deposition, which was conducted in the courtroom. Moreover, both the
prosecutor and defense counsel were present. Defense counsel was afforded the opportunity to
proffer objections to the substance of McVicker’s testimony and to the introduction into evidence
of any exhibits thereto. Defense counsel was also afforded the opportunity to fully cross-examine
McVicker. The videotape does not reveal whether or not the appellant was present.

               As indicated previously, McVicker testified during the deposition that Ms. Coulter
sought assistance from Domestic Violence Program, Inc., in Murfreesboro, Tennessee, on December
1, 1997. With the Program’s assistance, she obtained from the Rutherford County Chancery Court
an ex parte order of protection against the appellant. Exhibits to McVicker’s testimony included a
document signed by Ms. Coulter that sets forth the Program’s “safety suggestions”; a copy of the
Program’s “disclaimer” form, also signed by Ms. Coulter; a copy of the ex parte order of protection;
a copy of a pamphlet containing information about orders of protection; and a document containing
information about available support groups and counseling services.

              At the appellant’s trial, the State sought to introduce into evidence both a videotape
of McVicker’s deposition and the accompanying exhibits. Defense counsel again interposed an
objection. The trial court ruled:
              I’m going to overrule the objection and allow the testimony to be
              played by the video, although a strained construction of unavailable
              would be the fact that someone is on vacation, and there is
              authorization for the recording of testimony by video.

                And it appears that minimal confrontation is met by the Defendant
                being present at the time of this recording and the setting of the
                recording in the courtroom, all parties being here with the exception
                of the jury, which will have an opportunity to view this witness by
                this video process.


                                                 -50-
In accordance with the trial court’s ruling, the State played the videotape to the jury and introduced
into evidence the exhibits to McVicker’s testimony.

       2.        Analysis
                 Tenn. R. Crim. P. 15(a) narrowly provides that the testimony of a witness may be
taken by deposition “[w]henever due to exceptional circumstances of the case it is in the interest of
justice that the testimony of a prospective witness of a party be taken and preserved for use at trial.”
Subsection (e) of Tenn. R. Crim. P. 15 further clarifies that the deposition may be used as substantive
evidence at trial,
                 so far as otherwise admissible under the Tennessee Rules of
                 Evidence, . . . if:
                        (1) The witness is unavailable, as unavailability is
                        defined in . . . this rule; or
                        (2) Upon motion and notice, it appears that such
                        exceptional circumstances exist as make it desirable,
                        in the interest of justice with due regard to the
                        importance of presenting the testimony of witnesses
                        orally in open court, to allow the deposition to be
                        used.

                The appellant relies exclusively upon the above rule in this appeal and does not raise
a constitutional challenge to the State’s use of the videotaped deposition. Nevertheless, we initially
note that any interpretation of Tenn. R. Crim. P. 15 must be made against the backdrop of
constitutional protections that inhere in the Confrontation Clause of the Sixth Amendment to the
United States Constitution and Article 1, Section 9 of the Tennessee Constitution. It is against this
backdrop that the Advisory Commission Comments to Tenn. R. Crim. P. 15 record the
Commission’s intent “that depositions be taken only in those cases wherein their use is clearly
necessary, and that their taking not be authorized in other cases.” As the United States Court of
Appeals for the Sixth Circuit has observed, “[T]he deposition[, even when videotaped,] is a weak
substitute for live testimony, a substitute that the Sixth Amendment does not countenance on a
routine basis.” Stoner v. Sowders, 997 F.2d 209, 213 (6th Cir. 1993).

               We do not thereby mean to express an opinion that the trial court’s ruling violated
the appellant’s right of confrontation; rather, we wish to underscore our doubt that a witness’
vacation plans rise to the level of “exceptional circumstances” under Tenn. R. Crim. P. 15(a), even
when balanced against the relatively minimal importance of his testimony. In any event, we need
not resolve this issue, nor need we determine whether the State could use the deposition as
substantive evidence at the appellant’s trial. Even absent any error by the trial court, whether
procedural or constitutional, the result of the trial would undoubtedly have been the same. We
remain particularly unconvinced by the appellant’s argument that the result of his trial was affected




                                                 -51-
by the introduction into evidence of the pamphlet containing information about orders of protection.6
Quite simply, when one eliminates McVicker’s testimony and the exhibits thereto, the evidence
supporting the appellant’s conviction remains overwhelming. This issue is without merit.

k.      Prosecutor’s Examination of Expert Witnesses Concerning the MMPI-II
               The appellant next contends, in essence, that the trial court erred in overruling his
objections to the prosecutor’s examination of both Dr. Weiss and Dr. Craddock concerning the
Minnesota Multiphasic Personality Inventory, Second Edition (MMPI-II), the personality test that
Dr. Weiss administered to the appellant on July 4, 1998.

         1.      Trial Court Proceedings
                 Placing the appellant’s contentions in the appropriate context, Dr. Weiss conceded
during re-cross-examination that, in contrast to her testimony at trial, she had not indicated in any
of her written reports that the appellant was unlikely to act with either intent or premeditation. She
explained that she was not a forensic psychologist and that she was not accustomed to using legal
terminology. Accordingly, the prosecutor inquired whether a forensic psychologist would “be in a
better position” to evaluate the appellant’s ability to act with intent and premeditation. Dr. Weiss
responded that “[t]he forensic psychologist in this case was dealing solely with whether or not this
man was capable of standing trial.” The prosecutor then inquired whether Dr. Weiss was certain of
the scope of Dr. Craddock’s evaluation. Dr. Weiss responded affirmatively and, during the course
of re-direct examination by defense counsel, clarified that she had reviewed Dr. Craddock’s report
prior to testifying at the appellant’s trial.

                Subsequently, due to Dr. Weiss’ testimony that she had reviewed Dr. Craddock’s
report, the prosecutor brought to her attention the portion of the report that referred to the appellant’s
capacity at the time of this offense to form the requisite mental state for first degree premeditated
murder. Dr. Weiss, in turn, expressed reservations concerning the credibility of Dr. Craddock’s
assessment of the appellant. She asserted that,
                in terms of the sophistication of what I did with him in the past and
                what testing they did, there’s quite a bit of difference between their
                evaluation and my evaluation. . . .

                   And there was quite a bit of difference between the rapport that I had
                   with [the appellant] and what happened when he went for this
                   evaluation thinking that he was going to get help. And when he
                   realized that all that was going to happen was that he was going to be
                   asked questions, he elected to respond in such a way to get out of
                   there as quickly as possible. And that’s what he told me.

         6
           During McVicker’s deposition, the appellant unsuccessfully objected to the admission of the pamphlet as an
exhibit to McV icker’s testimony. W e note, however, that Detective Watson also identified and testified concerning the
pamphlet at trial, and the ap pellant failed to proffer any o bjectio n. Nevertheless, it is at least arguable that “further
objection would have been an idle ceremony and a useless gesture.” State v. Brobeck, 751 S.W.2d 828, 833 (Tenn.
1988) .

                                                           -52-
              Thereafter, the prosecutor further questioned Dr. Weiss concerning the thoroughness
of Dr. Craddock’s evaluation, engaging her in the following colloquy:
              Prosecutor:            [The staff at MTMHI] talked to the
                                     Defendant’s mother, did they not?
              Dr. Weiss:             I have no idea whether they talked to the
                                     Defendant’s mother.
              Prosecutor:            They talked to the Defendant’s ex-wife, Judy
                                     Prince, did they not?
              Dr. Weiss:             I talked to her in 1993.
              Prosecutor:            Yes, ma’am. They talked to her in 1998,
                                     didn’t they?
              Dr. Weiss:             I don’t know.
              Prosecutor:            They talked to Mr. Dean Wolfe, did they not?
              Dr. Weiss:             How would I know?
              Prosecutor:            So you didn’t read the report then, is that what
                                     you’re telling us?
              Dr. Weiss:             Yes, I did read the report.
              Prosecutor:            Well, is it not in there that they talked to these
                                     people and did you not read that?
              Dr. Weiss:             No, I certainly didn’t. The reports I have
                                     don’t mention them at all.
              Prosecutor:            Then you must have missed that part that he
                                     has the requisite mental state and is able to
                                     premeditate and act with intention like you
                                     missed the other parts of their report. . . . I
                                     don’t have any further questions, Your Honor.
              Defense Counsel:       I think she’s entitled to answer that one. She
                                     may not even have that report.
              Dr. Weiss:             Apparently, I don’t. But the report that I do
                                     have says that he was administered two
                                     personality tests which have results that are
                                     perfectly compatible with the results of my
                                     personality tests, and they dismissed them and
                                     said that he obviously wasn’t as bad off as the
                                     test results suggest. And I would suggest that
                                     when you have three personality tests that all
                                     come out with similar results, that you don’t
                                     go dismiss them and say that they’re
                                     meaningless.

                In light of Dr. Weiss’ criticism that Dr. Craddock had “dismissed” the results of
personality tests administered to the appellant, the prosecutor questioned Dr. Weiss concerning the
appellant’s performance on the MMPI-II, a personality test that was administered to the appellant


                                               -53-
by Dr. Weiss in 1998 and that was mentioned in Dr. Craddock’s report. Specifically, the prosecutor
questioned Dr. Weiss concerning the appellant’s performance on the “F Scale” portion of the MMPI-
II, inquiring whether the F Scale measures symptom exaggeration or malingering. Dr. Weiss denied
that the F Scale measures symptom exaggeration or malingering, noting that, “never from 1962 to
1999, 37 years, have I ever seen in print a suggestion that Scale F [is] a measure of malingering.”
Moreover, she noted that the appellant’s performance on the “Scale 8” portion of the MMPI-II was
“very high,” and “[a]n elevation of the F Scale when it’s found along with an elevation of Scale 8
in fact does not invalidate the MMPI.” Without prompting by the prosecutor, Dr. Weiss volunteered
that Scale 8 “is the schizophrenia scale.”

                In the face of Dr. Weiss’ adamant denial that the F Scale measures symptom
exaggeration or malingering, the prosecutor inquired if Dr. Weiss had ever read a book entitled The
MMPI-2, A Practical Guide for Expert Witnesses and Attorneys in Court. Dr. Weiss denied any
familiarity with the book. The prosecutor also inquired if Dr. Weiss had ever read a book entitled
A Beginner’s Guide to the MMPI-2, noting that the book’s author was James M. Butcher. Dr. Weiss
denied any familiarity with this latter book. Notwithstanding Dr. Weiss’ response, the prosecutor
attempted to question Dr. Weiss concerning the contents of Butcher’s A Beginner’s Guide to the
MMPI-2 by reading an excerpt from the book. The appellant immediately interposed an objection,
remarking that “[s]he said she’s not aware of it, so he can’t sit here and read out of it.” The trial
court sustained the appellant’s objection.

               Despite the trial court’s ruling, the prosecutor subsequently handed Dr. Weiss a copy
of Butcher’s A Beginner’s Guide to the MMPI-2 and asked her to read a paragraph from the book.
The appellant again objected. The trial court sustained the appellant’s objection but also ruled, “I’ll
allow him to ask the next question.” The following exchange ensued between the prosecutor and
Dr. Weiss:
               Prosecutor: After 30 years have you now seen in print that the F
                               Scale deals with malingering and faking?
               Dr. Weiss:      One person who wrote a book said that, but I am
                               aware of the history of the MMPI, and I’m so old that
                               I’m close to the history of the development of the
                               MMPI.
               Prosecutor: And James M. Butcher doesn’t know
                               what he’s talking about.
The appellant interposed another objection, remarking that “[s]he hasn’t had the opportunity to read
that whole book to determine that. That’s an unfair question.” Despite the appellant’s objection,
the court permitted the prosecutor to briefly question Dr. Weiss concerning James M. Butcher’s
“association” with the MMPI-II. In this regard, Dr. Weiss acknowledged that Butcher “has a history
with the early development of [the test].”

              Following Dr. Weiss’ testimony, the prosecutor also questioned Dr. Craddock
concerning both the appellant’s performance on the MMPI-II and Butcher’s A Beginner’s Guide to
the MMPI-2. With respect to the latter, Dr. Craddock observed that the book


                                                 -54-
               is a beginner’s guide, which is easy reading so to speak, for somebody
               that’s just becoming familiar with [the MMPI-II]. It’s often used, I
               think, for courts because the terms are compatible with individuals
               who are not familiar with psychological testing.
Dr. Craddock further testified that “most anyone in the United States should be familiar with James
Butcher if they use the MMPI-II, yes. He’s probably one of the five most prominent individuals.”

                With respect to the appellant’s performance on the MMPI-II, Dr. Craddock confirmed
that, in evaluating the appellant’s capacity to form the requisite mental state, he had reviewed the
results of the MMPI-II administered to the appellant by Dr. Weiss. Moreover, like Dr. Weiss, he
noted the elevation of the appellant’s scores on both the F Scale and Scale 8 of the MMPI-II. He
testified:
                I agree with Dr. Weiss in that when someone is disturbed or psychotic
                or schizophrenic that there will be not only an elevation on Scale 8,
                but there will be another elevation on the F Scale. So I want to let
                you know that I agree with her that the two scales go up, not
                necessarily proportionally or equally, but there will be an elevation.
                But when there is an extreme elevation on the F Scale - - and this
                went essentially off the graph - - I have yet to find anybody who
                writes a text or does research who says that it’s anything other than
                symptom exaggeration.

               F Scales can be elevated for a variety of reasons. Not all of them are
               malicious. Some of them are benign. They can be a cry for help, a
               person that’s trying to seek attention, and they’re saying look how
               bad, look at the situation I’m in. That will elevate the F Scale.
               Another is a genuine, legitimate psychotic individual.

               But typically to have an elevation on Scale 8 this high, the person
               would be so psychotic that you wouldn’t be able to test them, that you
               wouldn’t be able to keep their attention on the test instrument. They
               wouldn’t be responding in a coherent fashion to you.

               Another reason is inconsistency. If a person just sat down and started
               marking the true-false items just randomly, that can be another reason
               why the scale can be elevated. . . . [Y]ou can do an analysis, which
               I’ve tried to do here. It’s called . . . a Variable Response Scale, which
               indicates whether the person was responding randomly or not. . . .
               [The Variable Response Scale indicated that the appellant] wasn’t
               responding randomly.
In sum, Dr. Craddock opined that, in the appellant’s case, the elevation of the F Scale did not stem
from either paranoid schizophrenia or random responses; rather, the elevation stemmed from
symptom exaggeration, possibly indicative of a “cry for help.” According to Dr. Craddock, this


                                               -55-
interpretation of the MMPI-II was consistent with the results of the “two personality questionnaires”
administered by him to the appellant.

                Following Dr. Craddock’s testimony concerning the significance of the appellant’s
score on the F Scale of the MMPI-II, the prosecutor began to question Dr. Craddock concerning
paranoid schizophrenia. The defense attorney objected, citing Tenn. R. Crim. P. 12.2(c). The
prosecutor responded that Dr. Weiss had referred to the MMPI-II during her testimony, including
the elevation of the appellant’s scores on the scale that measures psychoses. He asserted that,
therefore, the State was entitled to exclude paranoid schizophrenia as a mental disease or defect that
diminished the appellant’s ability to act with intent or premeditation at the time of this offense.
Defense counsel noted in turn that the prosecutor had elicited the testimony concerning the MMPI-II.
Defense counsel also emphasized that the appellant was not relying upon any diagnosis of paranoid
schizophrenia to negate the requisite mental state but instead was relying upon a diagnosis of a
closed head injury. The prosecutor then offered to stipulate that the appellant did not suffer from
paranoid schizophrenia, but defense counsel refused the State’s offer. Ultimately, the court ruled:
                We’ve got two interesting problems here that somewhat conflict. The
                rule contemplates one thing, but clearly the case law puts now the
                obligation on the State to, when there is expert testimony advanced,
                to rebut it with expert testimony. I think that policy prevails. I
                overrule the objection. But I would have to say that I caution you.
                You’re in an area that has little or no guidance and may give grounds
                for problems in the future as far as appellate review.

                Following the trial court’s ruling, the prosecutor briefly questioned Dr. Craddock
concerning paranoid schizophrenia. In this regard, Dr. Craddock testified that paranoid
schizophrenia is a “mental disease” or “psychosis,” involving a “break with reality, where the person
is no longer accurately interpreting reality.” Dr. Craddock clarified, however, that the only “mental
disease” with which he had diagnosed the appellant was “an adjustment disorder,” and the
adjustment disorder did not preclude the appellant’s ability to act either with intent or with
premeditation. Moreover, Dr. Craddock carefully distinguished a “mental disease” from a “mental
defect,” and, as noted earlier, agreed with Dr. Weiss that the appellant was also suffering from a
“mental defect” or brain damage. Again, Dr. Craddock concluded that, like the adjustment disorder,
the appellant’s brain damage did not preclude the appellant’s ability to act with either intent or
premeditation.

        2.       Analysis
                 A.     Impeachment of Dr. Weiss by “Learned Treatise”
                 Citing Tenn. R. Evid. 618, the appellant first contends that the trial court erred in
overruling his objection to the State’s use of Butcher’s A Beginner’s Guide to the MMPI-2 in cross-
examining Dr. Weiss concerning the results of the MMPI-II. The State responds that, in fact, the
trial court sustained the appellant’s objections. We conclude that any error was harmless.




                                                -56-
                 In reaching our conclusion, we agree with the State that “‘[t]he propriety, scope,
manner and control of the cross-examination of witnesses . . . rests within the sound discretion of
the trial court.’” State v. Korsakov, 34 S.W.3d 534, 545 (Tenn. Crim. App. 2000); see also State v.
Barnard, 899 S.W.2d 617, 624 (Tenn. Crim. App. 1994). Once again, however, the trial court’s
exercise of discretion is circumscribed by the Tennessee Rules of Evidence. As relevant to the
current discussion, Tenn. R. Evid. 618 permits the use of “learned treatises,” i.e., “statements
contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other
science or art,” to impeach an expert witness’ credibility provided the following prerequisites are
satisfied: (1) The treatise was called to the attention of the expert witness upon cross-examination
or relied upon by the witness in direct examination; and (2) The treatise has been established as a
reliable authority by the testimony or admission of the witness, by other expert testimony, or by
judicial notice. We note that the adoption of this rule in 1990 was merely a restatement of current
Tennessee law, which provided:
                 “An expert witness may be cross-examined by the use of standard
                 authorities on the subject. . . . ‘When a witness is testifying as an
                 expert, it is competent to test his knowledge and accuracy upon cross-
                 examination by reading to him, or having him read, extracts from
                 standard authorities upon the subject-matter involved, and then asking
                 him whether he agreed or disagreed with the authorities, and
                 comparing his opinion with those of the writer.’”
Nix v. State, 530 S.W.2d 524, 531 (Tenn. Crim. App. 1975)(quoting McCay v. Mitchell, 463 S.W.2d
710, 720 (Tenn. App. 1970))(citations omitted).

                In accordance with Tenn. R. Evid. 618, the State brought Butcher’s A Beginner’s
Guide to the MMPI-2 to Dr. Weiss’ attention. However, the State failed to also lay a proper
foundation establishing the book as a “reliable” or “standard” authority before attempting to impeach
Dr. Weiss’s credibility with its contents. Thus, as acknowledged by the State, the trial court
sustained the appellant’s objections to the State’s use of the disputed book to impeach Dr. Weiss’
credibility. Yet, notwithstanding these rulings, the trial court allowed the prosecutor to engage in
further questioning of Dr. Weiss about the book, possibly seeking to afford the prosecutor an
opportunity to lay a proper foundation, i.e., elicit testimony or an admission from Dr. Weiss
concerning the book’s status as a reliable or standard authority, including testimony concerning the
reputation of the book’s author. Rather than laying a foundation, the State established the pertinent
contents of the book and further established that those contents were inconsistent with Dr. Weiss’
testimony.

               Despite the State’s apparent circumvention of the trial court’s earlier rulings, the
appellant never attempted to clarify the trial court’s rulings and never moved to strike the
objectionable testimony from the record. Tenn. R. Evid. 103(a)(1); Tenn. R. App. P. 36(a).
Moreover, the State arguably, albeit minimally, established the book as a “reliable authority” through
Dr. Craddock’s later testimony that the book was “often used . . . for courts” and that Butcher was
one of the “five most prominent individuals” associated with the MMPI-II. But cf. Embree v.
Norfolk & Western Railway Co., 907 S.W.2d 319, 325 (Mo. Ct. App. 1995)(“It is proper to cross-


                                                 -57-
examine a medical expert with medical textbooks and treatises where there is evidence that the text
or treatise so employed is authoritative. . . . To be authoritative, there must be some evidence of
general acceptance and accreditation of the text or treatise within the profession.”)(emphasis
added). If Dr. Craddock’s testimony adequately established a proper foundation under Tenn. R.
Evid. 618, the timing of Dr. Craddock’s testimony was not necessarily fatal to the State’s use of the
disputed book to impeach Dr. Weiss’ credibility. See Tenn. R. Evid. 104(b).

                 In any event, any error does not appear to have affirmatively affected the results of
the trial on the merits. Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b). We acknowledge that Dr.
Weiss’ testimony was the key component of the appellant’s claim of diminished capacity. Moreover,
Dr. Weiss partially explained her rejection of Dr. Craddock’s assessment of the appellant’s capacity
to form the requisite mental state and, consequently, her adherence to her own assessment by noting
Dr. Craddock’s dismissal of the results of personality tests including the MMPI-II. By questioning
Dr. Weiss concerning Butcher’s treatise, the prosecutor clearly attempted to undermine this
explanation. Nevertheless, the record contains abundant other evidence contradicting Dr. Weiss’
testimony that it was “improbable” that the appellant was acting with reflection and judgment at the
time that he killed his wife. This issue is without merit.

                 B.     Rebuttal Testimony by Dr. Craddock
                 The appellant next contends that the trial court erred in overruling the appellant’s
objection to rebuttal testimony by Dr. Craddock concerning the possibility that the appellant was
suffering from paranoid schizophrenia. The appellant relies upon Tenn. R. Crim. P. 12.2(c) and
contends:
                 The testimony regarding schizophrenia comes from the MMPI test
                 which was never testified to by Dr. Weiss. The State attacked Dr.
                 Weiss’ interpretation of the MMPI - which was never placed into
                 evidence by the defendant - and Dr. Craddock was allowed to assail
                 her unannounced and untestified to opinion both by contradicting the
                 same with his own opinion and by introducing passages from treatises
                 regarding the MMPI.
The State responds that Tenn. R. Crim. P. 12.2(c) was inapplicable to Dr. Craddock’s testimony as
the disputed testimony did not relate to statements made by the appellant during the course of a
mental examination ordered by the trial court upon motion of the District Attorney General. Rather,
the testimony related to the results of a test administered to the appellant during the course of a
mental examination by the defense-retained psychologist. We conclude that the appellant is not
entitled to relief.

               Tenn. R. Crim. P. 12.2 provides that, when a defendant indicates his or her intent to
rely upon a defense of insanity or a claim of diminished capacity,
               (c) . . . the court may, upon motion of the district attorney, order the
               defendant to submit to a mental examination by a psychiatrist or . . .
               other expert designated for this purpose in the order of the court. No
               statement made by the defendant in the course of any examination


                                                -58-
               provided for by this rule, whether the examination be with or without
               the consent of the defendant, no testimony by the expert based upon
               such statement, and no other fruits of the statement shall be admitted
               in evidence against the defendant in any criminal proceeding except
               for impeachment purposes or on an issue respecting mental condition
               on which the defendant has introduced testimony.
(Emphasis added). “The purpose of the rule is to provide the prosecution with a means to obtain
necessary information to rebut evidence of mental condition presented by the defendant, while at the
same time safeguarding a defendant’s right against self-incrimination.” State v. Huskey, 964 S.W.2d
892, 899 (Tenn. 1998). Due to the role of Rule 12.2 in safeguarding a defendant’s right against self-
incrimination, a trial court bears a significant responsibility to ensure that the prosecution complies
with the rule in using any statements made by a defendant during a State-requested mental
examination or any “fruits” thereof. State v. Martin, 950 S.W.2d 20, 25 (Tenn. 1997).

                In this case, we agree with the State that Dr. Craddock testified concerning the results
of a personality test administered by the appellant’s own psychologist. Accordingly, at first glance,
Rule 12.2(c) does not appear to encompass the disputed testimony. However, the appellant evidently
submitted the results of the MMPI-II to Dr. Craddock for purposes of the State-requested
examination. Arguably, the appellant thereby transformed the results of the MMPI-II into
“statements” made or adopted by him during the course of a State-requested examination, inasmuch
as the results reflect the appellant’s responses to the questions composing the test.

                In any event, under Tenn. R. Crim. P. 12.2(c), the State could use the results of the
MMPI-II to impeach or rebut Dr. Weiss’ testimony concerning the appellant’s diminished capacity
to premeditate his wife’s murder. A careful examination of the record reveals that, in fact, the State
used the results of the MMPI-II, including those reflecting paranoid schizophrenia, for precisely this
purpose. Once again, Dr. Weiss volunteered during re-cross-examination that she discounted Dr.
Craddock’s conclusions about the appellant’s capacity to premeditate his wife’s murder because Dr.
Craddock had dismissed the results of several personality tests including the MMPI-II. Accordingly,
the prosecutor’s subsequent questioning of both Dr. Weiss and Dr. Craddock7 concerning the MMPI-
II and the validity of the test results was clearly intended to impeach and rebut Dr. Weiss’
explanation for discounting Dr. Craddock’s opinion and adhering to her own.8

         7
        Contrary to the appellant’s assertion, Dr. Craddock at no time introduced “passages from treatises regarding
the MMPI” in explaining his interpretation of the results of the MMPI-II.

         8
           To the extent the ap pellant’s objection either in the trial court or on appeal can be interpreted more broadly
as a challenge to the scope of the State’s rebuttal, the admissibility of rebuttal proof lies within the trial court’s discretion
and will not be reversed on appeal absent an abuse of that discretion. State v. Sco tt, 735 S.W.2d 825, 828 (Tenn. Crim.
App. 1987); State v. Letivias Prince, No. M1998-00005-CCA-R3-CD, 2000 W L 1133572, at *6 (Tenn. Crim. App. at
Nashville, August 10 , 2000), perm. to appeal denied, (Tenn. 2001). Rebuttal proof is “any competent evidence which
explains or is a direct reply to, or a contradiction of, material evidence introduced by the accused, or which is brought
out on his cross-examination.” State v. Smith , 735 S.W.2d 831 , 835 (Tenn. Crim. App. 1987). Conversely, “[o]ne
cannot rebut a proposition that has not been advanced.” Cozzo lino v. State , 584 S.W.2d 765 , 768 (Tenn. 1979). In light
                                                                                                                  (continued ...)

                                                             -59-
               Finally, we note that, consistent with our conclusion, the appellant has at no time
challenged under Rule 12.2(c) the prosecutor’s re-cross-examination of Dr. Weiss concerning the
MMPI-II. Moreover, momentarily setting aside the trial court’s responsibility to ensure the
prosecution’s compliance with Rule 12.2(c), Dr. Craddock had already testified at length concerning
the MMPI-II and disputed any implication that the results of the test supported a diagnosis of
paranoid schizophrenia by the time the appellant proffered his Rule 12.2(c) objection. Tenn. R. App.
P. 36(a). This issue is without merit.

m.       Special Jury Instructions
                The appellant next challenges the trial court’s refusal to provide special instructions
to the jury, maintaining that the trial court’s charge was inadequate. The State responds that the trial
court’s instructions to the jury in the instant case were “full, fair, and accurately state[d] the law.”
State v. Kelley, 683 S.W.2d 1, 6 (Tenn. Crim. App. 1984). We agree with the State.

         1.      Trial Court Proceedings
                 During the course of the appellant’s trial, the appellant submitted a written request
to the trial court that it provide the following special instruction to the jury:
                 All homicide is presumed to be second degree murder and unless you
                 find the State has proven beyond a reasonable doubt the defendant
                 acted intentionally, that is with the conscious objective or desire to
                 shoot and kill Ms. Coulter and with premeditation, that is acting only
                 after the exercise of reflection and judgment then you must return a
                 verdict of not guilty as to the charge of first degree murder.
Defense counsel argued that his requested instruction was an accurate statement of the law, and “the
Defendant is entitled to have the jury charged on that presumption.” The prosecutor principally
responded that the requested instruction “is contrary to the order of deliberation that the Court will
give to the jury.” The trial court denied the appellant’s request, ruling that he would charge the
Tennessee Pattern Jury Instructions concerning the State’s burden of proving first degree
premeditated murder.

               Additionally, the appellant submitted a written request to the trial court that it provide
the following special instruction to the jury on the law of circumstantial evidence:
               The State has offered circumstantial evidence of Larry Coulter’s state
               of mind; however, unless you determine the circumstantial evidence
               presented by the State is so strong and convincing as to totally
               exclude the possibility Mr. Coulter acted impulsively or otherwise
               without reflection and judgment you must return a verdict of not
               guilty as to the charge of first degree murder.
Defense counsel argued that the requested instruction “kind of fit[] the facts of this case into the
pattern instruction.” The prosecutor responded that the requested instruction impermissibly


         8
          (...continued)
of Dr. W eiss’ volunteere d remark s, we canno t say that the trial cour t abused its disc retion.

                                                             -60-
enhanced the State’s burden of proof and, moreover, disputed that the State’s case was wholly
circumstantial. The trial court denied the appellant’s request, simply noting that “the pattern
instruction appears to even be more instructive of this concept than your proposal.”

        2.       Analysis
                 A defendant has a “constitutional right to a correct and complete charge of the law.”
State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). Accordingly, trial courts “should give a requested
instruction if it is supported by the evidence, embodies a party's theory, and is a correct statement
of the law.” State v. Phipps, 883 S.W.2d 138, 150 n.20 (Tenn. Crim. App. 1994). However, trial
courts need not give requested instructions if the substance of the instructions is covered in the
general charge. State v. Zirkle, 910 S.W.2d 874, 892 (Tenn. Crim. App. 1995).

                With respect to his requested instruction on the presumption of second degree murder,
the appellant argues on appeal that “[t]he [trial court’s] charge, as a whole, serves to confuse and not
fully inform the jury as to the presumption the defendant is entitled to by law and the State’s burden
regarding the same.” In this regard, we acknowledge our supreme court’s observation in State v.
Brown, 836 S.W.2d 530, 543 (Tenn. 1992), that “[t]he law in Tennessee has long recognized that
once [a] homicide has been established, it is presumed to be murder in the second degree.”
However, the import of this presumption is that “[t]he state bears the burden of proof on the issue
of premeditation . . . sufficient to elevate the offense to first-degree murder.” Id.; see also State v.
Hall, 8 S.W.3d 593, 599 (Tenn. 1999); State v. Schafer, 973 S.W.2d 269, 274 (Tenn. Crim. App.
1997). Therefore, when a trial court’s charge omits the language of “presumption” but otherwise
clearly informs the jury that the State carries the burden of proving each and every element of first
degree premeditated murder beyond a reasonable doubt and also includes a correct and complete
instruction on second degree murder, a criminal defendant is not entitled to relief. See, e.g., State
v. Mann, 959 S.W.2d 503, 521 (Tenn. 1997)(appendix); State v. Kelley, 683 S.W.2d 1, 6 (Tenn.
Crim. App. 1984); State v. Andrew Young Johnson, No. E1999-00002-CCA-R3-CD, 2000 WL
420662, at *9 (Tenn. Crim. App. at Knoxville, April 18, 2000), perm. to appeal denied, (Tenn.
2000); State v. Joe A. Ivy, No. 02C01-9707-CR-00273, 1998 WL 813405, at *10 (Tenn. Crim. App.
at Jackson, November 25, 1998). Moreover, this court has noted that, should a jury decline to find
a defendant guilty of the charged offense of first degree premeditated murder, the instruction
requested in this case may pose a danger of assigning the burden of proof to the defendant to
disprove his guilt of second degree murder. State v. Thomas J. McKee, No. 03C01-9603-CR-00092,
1998 WL 202475, at **4-5 (Tenn. Crim. App. at Knoxville, April 28, 1998). In short, the trial
court’s general charge to the jury in this case fully encompassed the substance of the requested
instruction while avoiding the danger articulated in McKee.

                 With respect to his requested instruction on circumstantial evidence, the appellant
argues that the trial court’s charge was inadequate as the trial court failed to conform it to the specific
facts of this case. In particular, the appellant asserts that, due to their “general, non-specific nature,”
“[t]he pattern instructions charged by the Court do not make it clear to the jury the defendant’s
contention was he . . . act[ed] impulsively or otherwise without reflection and judgment.”



                                                   -61-
                Notwithstanding the appellant’s contentions, we preliminarily note that his requested
instruction on circumstantial evidence is an incorrect statement of the law. The State’s proof
connecting the appellant to the commission of this offense was both direct and circumstantial. In
other words, while the evidence supporting the jury’s finding of the requisite mental state was wholly
circumstantial in nature, the evidence supporting the appellant’s guilt of killing Ms. Coulter included
direct evidence, namely the appellant’s statements to the police. Cf. Mann, 959 S.W.2d at 518
(appendix); State v. Caldwell, 671 S.W.2d 459, 462-463, 466 (Tenn. 1984); State v. Thompson, 519
S.W.2d 789, 793 (Tenn. 1975); State v. Harold Wayne Shaw, No. 01C01-9312-CR-00439, 1996 WL
611158, at *3 (Tenn. Crim. App. at Nashville, October 24, 1996); State v. Gregory Wayne Young,
No. 03C01-9311-CR-00379, 1994 WL 421413, at **1-2 (Tenn. Crim. App. at Knoxville, August
12, 1994); State v. Mark Anthony Hopper, No. 03C01-9202-CR-00064, 1992 WL 340580, at **1-2
(Tenn. Crim. App. at Knoxville, November 20, 1992). When the State’s proof is both direct and
circumstantial, “it is not necessary for a conviction that a defendant's innocence must be excluded
from every reasonable hypothesis deducible from the circumstances.” Pearson v. State, 226 S.W.
538, 541 (Tenn. 1920); see also Shaw, No. 01C01-9312-CR-00439, 1996 WL 611158, at *3; State
v. Bobby W. Lineberry, No. 01C01-9412-CC-00439, 1995 WL 441608, at *4 (Tenn. Crim. App. at
Nashville, July 26, 1995).9

               Nevertheless, in Monts v. State, 379 S.W.2d 34, 41 (Tenn. 1964), our supreme court
held that, “when the evidence introduced against the defendant is both circumstantial and direct and
the defendant requests a charge on the law of circumstantial evidence, it is reversible error to refuse
to give it.” Our supreme court explained:
               When a case is grounded on both circumstantial and direct evidence,
               it is entirely possible that the jury, in the exercise of its function as the
               sole judge of the credibility of the evidence, may find that the direct
               evidence is unworthy of belief. If they should so find, then they
               would be left with only the circumstantial evidence to guide them in
               determining whether the defendant is guilty of the offense charged.
               . . . Th[is] possibility . . . makes it imperative that the trial judge
               instruct the jury on the law of circumstantial evidence.
Id.

               In this case, the trial court in fact instructed the jury on circumstantial evidence in
accordance with T.P.I. Crim. No. 42.03 (4th ed. 1995). We have previously acknowledged that,
generally speaking,



         9
          W e acknowledge that in Schafer, 973 S.W.2d at 273, we observed, “[C]ircumsta ntial evidence of a defend ant’s
state of mind will not support a jury verdict of premeditated murder unless the proof of premeditation . . . is ‘so strong
and cogent as to exclude every other reaso nable hypo thesis save the gu ilt of the defend ant, and that b eyond a re asonable
doubt.” However, we made this observation in the context of a case in which evidence of both the killing and the
appellant’s state of mind a t the time of the killing w as wholly circum stantial. But see State v. John W. Gilliam, No.
01C01-9603-CC-00105, 1997 WL 2 30156 , at **2-3 (Te nn. Crim. Ap p. at Nashv ille, May 7, 1 997); State v. James
Dumas, No. 02C01-9502 -CR-00031, 1995 W L 580931, at **1-4 (Tenn. Crim. App. at Jackson, October 4, 1995).

                                                            -62-
                [t]he Tennessee pattern jury instructions are just that, pattern
                instructions. They are not sanctioned by the Supreme Court or the
                legislature. It remains “the responsibility of the trial judge to prepare
                the jury instructions [and to] revise[ ] or supplement[ ] [previously
                printed forms] if necessary in order to state the applicable law fully
                and accurately.”
Phipps, 883 S.W.2d at 152 (citations omitted)(alterations in original). Nevertheless, our supreme
court has specifically approved instructions on circumstantial evidence identical to the pattern
instructions utilized by the trial court in this case. State v. Vann, 976 S.W.2d 93, 113-114 (Tenn.
1998)(appendix); State v. Bane, 853 S.W.2d 483, 487-488 (Tenn. 1993).

                 Finally, jury instructions must be reviewed in the context of the overall charge rather
than in isolation. State v. Bolin, 678 S.W.2d 40, 43 (Tenn.1984). Reviewing the charge “in its
entirety” and reading it “as a whole,” Vann, 976 S.W.2d at 101, we conclude that it fairly submitted
to the jury the issue of the appellant’s mental state at the time of this offense. Indeed, the trial court
provided the following instruction to the jury:
                 Now, the State must prove beyond a reasonable doubt the culpable
                 mental state of the accused. Culpable mental state means the state of
                 mind of the accused at the time of the offense. This means that you
                 must consider all the evidence to determine the state of mind of the
                 accused at the time of the commission of the offense. The state of
                 mind which the State must prove for first degree murder is that the
                 Defendant acted intentionally and with premeditation in killing Ms.
                 Coulter.

               In this case you have heard evidence that the Defendant might have
               suffered from a mental defect which could have affected his capacity
               to form the culpable mental state required to commit a murder in the
               first degree. If you find from the evidence that the Defendant’s
               capacity to form a culpable mental state may have been affected, then
               you must determine beyond a reasonable doubt what the Defendant’s
               mental state was at the time of the commission of the offense to
               determine of which, if any, offense he’s guilty.
See T.P.I. Crim. No. 42.22 (4th ed. 1995). This issue is without merit.

n.       Redaction of Exhibit 45
                The appellant next contends that the trial court erred by permitting the State to redact
a portion of an exhibit following the trial court’s charge to the jury and immediately prior to the
submission of the exhibits to the jury for deliberations. The appellant contends that the trial court’s
ruling was in contravention of the Tennessee Rules of Evidence and also violated the appellant’s
rights to due process of law and to confrontation of witnesses. The State responds that the trial court
did not abuse its discretion in redacting the report and, moreover, that any error was harmless. In



                                                  -63-
particular, the State notes that the “redacted” portion is, in fact, legible. We conclude that the
appellant is not entitled to relief.

       1.        Trial Court Proceedings
                 Immediately following the trial court’s charge to the jury, the prosecutor asked to
approach the bench. At the bench, the prosecutor further requested that the jury be excused from the
courtroom for deliberations but that the exhibits be temporarily withheld. The trial court agreed, and
the jury retired to the jury room without the exhibits. At this point, the State asked that a portion of
Exhibit 45, Dr. Craddock’s report, be redacted. Specifically, the prosecutor requested the redaction
of the following sentence: “When Dr. Weiss assessed Mr. Coulter in July 1998 she concluded ‘Mr.
Coulter is manifesting symptoms of paranoid schizophrenia.” In conjunction with its request, the
prosecutor assured the court that the jury had not yet examined Exhibit 45. Defense counsel
responded:
                 I understood we were putting the whole report in and not picking and
                 choosing parts, and I don’t think it would be appropriate at this time
                 to pick and choose parts. It was put in that way, not by us, and that’s
                 the way it ought to go back there. They ought to be entitled to see
                 everything that went into their conclusions, and that’s part of it.
In response, the prosecutor noted defense counsel’s previous objection to Dr. Craddock’s testimony
concerning paranoid schizophrenia. Defense counsel noted, in turn, that the trial court had overruled
his objection. Nevertheless, the prosecutor maintained that, due to cautionary remarks by the trial
court, he had truncated his examination of Dr. Craddock concerning paranoid schizophrenia.
Ultimately, the trial court granted the State’s motion and submitted Exhibit 45 to the jury in redacted
form.

        2.      Analysis
                In support of his challenge on appeal, the appellant specifically argues that, due to the
timing of the State’s motion to redact Dr. Craddock’s report, he was “denied the right to the
protections afforded within Tenn. R. Evid. 106 in that the defendant was unable to present the
remaining parts of the report during the State’s proof.” The appellant also cites Tenn. R. Crim. P.
30.1 for the proposition that the trial court was required to submit the exhibit to the jury in
substantially the same form in which it was originally received into evidence. Finally, the appellant
asserts that “allowing the State to alter or amend evidence after the jury has retired to deliberate
presents a matter of fundamental unfairness and amounts to a denial of the defendant’s fundamental
due process rights and the ability to cross-examine.” We simply conclude that any error by the trial
court was harmless beyond a reasonable doubt.

                 Initially, we note the appellant’s adamant assertions elsewhere in his brief that he
relied exclusively upon his diagnosed closed head injury in presenting a claim of diminished
capacity. These adamant assertions are borne out by both the appellant’s closing argument and the
trial court’s instruction to the jury concerning the appellant’s claim of diminished capacity, both of
which addressed the impact of a “mental defect” upon the appellant’s ability to form the requisite
mental state. In any event, the testimony of both Dr. Weiss and Dr. Craddock clearly revealed that,


                                                  -64-
in 1998, the appellant produced “very high” scores on a test intended to detect psychoses including
paranoid schizophrenia, although the psychologists differed concerning the significance of these
scores. Moreover, we agree with the State that the disputed sentence in Dr. Craddock’s report,
although marked over with black pen, is legible. Finally, once again, the evidence contradicting the
appellant’s claim of diminished capacity was overwhelming. This issue is without merit.

n.      Sufficiency of the Evidence
                The appellant also challenges the sufficiency of the evidence supporting his
conviction of first degree premeditated murder. Specifically, the appellant challenges the jury’s
finding of premeditation. The State disagrees. We have repeatedly expressed our view concerning
the volume of evidence supporting the jury’s finding of premeditation. However, we will take this
opportunity to more fully set forth the legal standards underlying our conclusion.

                In order to successfully challenge the sufficiency of the evidence supporting his
conviction, the appellant must demonstrate to this court that no “rational trier of fact” could have
found the essential elements of first degree premeditated murder beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982); Tenn. R. App. P. 13(e). In other words, on appeal, the State is entitled to the strongest
legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. State
v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). Questions concerning the credibility of witnesses
and the weight and value to be given the evidence, as well as all factual issues raised by the evidence,
are resolved by the trier of fact, and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561
(Tenn. 1990). These standards apply to convictions based upon direct evidence, circumstantial
evidence, or both. State v. Carruthers, 35 S.W.3d 516, 557 (Tenn. 2000); State v. Vann, 976 S.W.2d
93, 111 (Tenn. 1998)(appendix). Thus, as in the case of direct evidence, the weight to be given
circumstantial evidence and “‘[t]he inferences to be drawn from such evidence, and the extent to
which the circumstances are consistent with guilt and inconsistent with innocence, are questions
primarily for the jury.’” Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958).

                 The principal issue at the appellant’s trial was whether or not the appellant
premeditated the murder of his wife, and, as always, the State bore the burden of proof on this issue.
Tenn. Code. Ann. § 39-13-202(a)(1); see also State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999); State
v. Brown, 836 S.W.2d 530, 543 (Tenn. 1992); State v. Schafer, 973 S.W.2d 269, 274 (Tenn. Crim.
App. 1997). In satisfying this burden, the State could rely entirely upon circumstantial evidence.
Brown, 836 S.W.2d at 541. Indeed, as indicated elsewhere in this opinion, “[o]ther than an accused
stating what his or her purpose, intent, or thinking was at the relevant times, the trier of fact is left
to determine the [requisite] mental state by making inferences from the surrounding circumstances
it finds to exist.” State v. Carlos C. Beasley, No. W1999-00426-CCA-R3-CD, 2000 WL 527715,
at *4 (Tenn. Crim. App. at Jackson, May 2, 2000), perm. to appeal denied, (Tenn. 2001).

                Premeditation necessitates both a previously formed intent to kill and the exercise of
reflection and judgment. Tenn. Code. Ann. § 39-13-201(b)(2) (1997). Circumstances from which
a jury may infer premeditation include planning activity by a defendant prior to the killing; the


                                                  -65-
defendant’s prior relationship with the victim; and the manner of the killing. State v. Hall, 958
S.W.2d 679, 704 (Tenn. 1997); see also State v. Jones, 15 S.W.3d 880, 889 (Tenn. Crim. App.
1999); Schafer, 973 S.W.2d at 273; State v. Bordis, 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995);
State v. Gentry, 881 S.W.2d 1, 4-5 (Tenn. Crim. App. 1993). Thus, for example, our supreme court
has held that premeditation may be inferred from a defendant’s use of a deadly weapon upon an
unarmed victim; the cruelty of the killing; declarations by a defendant of an intent to kill; the
defendant’s procurement of a weapon; a defendant’s preparations prior to a killing for concealment
of the crime; and calmness immediately after the killing. State v. Pike, 978 S.W.2d 904, 914 (Tenn.
1998); State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997).

                In this case, the State overwhelmingly proved premeditation by adducing, in
particular, the following proof: evidence of the Coulters’ extremely troubled relationship,
culminating immediately prior to this offense in the service of an ex parte order of protection upon
the appellant; testimony concerning the appellant’s statements to co-workers prior to this offense that
he was contemplating killing his wife; and the appellant’s devastating confession to the police.

                Notwithstanding this evidence, the appellant argues that Dr. Weiss’ testimony
precluded the jury’s finding of premeditation. Under Tennessee law, a criminal defendant may
introduce expert testimony concerning the impact of any mental disease or defect upon his capacity
to form the requisite mental state for first degree premeditated murder. Hall, 958 S.W.2d at 688-690;
State v. Abrams, 935 S.W.2d 399, 402 (Tenn. 1996); State v. Phipps, 883 S.W.2d 138, 149 (Tenn.
Crim. App. 1994). Such testimony may warrant “an acquittal of the indicted offense and a
conviction for a lesser included offense.” State v. Perry, 13 S.W.3d 724, 734 (Tenn. Crim. App.
1999); see also Hall, 958 S.W.2d at 688. However, a jury is not required to accept the expert
testimony to the exclusion of all other evidence. State v. Nesbit, 978 S.W.2d 872, 886 (Tenn. 1998);
State v. Holder, 15 S.W.3d 905, 912 (Tenn. Crim. App. 1999), perm. to appeal denied, (Tenn. 2000);
State v. Shawnda James, No. 01C01-9803-CC-00093, 1999 WL 618886, at *7 (Tenn. Crim. App.
at Nashville, August 11, 1999), perm. to appeal denied, (Tenn. 2000); State v. Verlin Ralph Durham,
No. 03C01-9802-CR-00063, 1999 WL 528726, at *11 (Tenn. Crim. App. at Knoxville, July 26,
1999), perm. to appeal denied, (Tenn. 2000). In the face of the circumstantial evidence presented
by the State, the jury acted well within its prerogative in rejecting Dr. Weiss’ testimony that, due to
a mental defect, it was “improbable” that the appellant was acting with reflection and judgment at
the time that he killed his wife. Cf., e.g., State v. Mabel J. Longmire, No. W1999-00216-CCA-R3-
CD, 2001 WL 128561, at *5 (Tenn. Crim. App. at Jackson, February 15, 2001)(“While there was
significant expert testimony that Defendant was suffering from a major depressive disorder at the
time she killed the victim, and that this “mental disease” affected her ability to function with regard
to judgment and other cognitive skills, this does not require a finding that Defendant lacked the
capacity to premeditate.”). This issue is without merit.

n.      Cumulative Error
               Finally, the appellant contends that the combination of errors committed in the trial
court denied him a fair trial. State v. Brewer, 932 S.W.2d 1, 28 (Tenn. Crim. App. 1996). We have
carefully reviewed the record in this case and have considered those issues that have not been waived


                                                 -66-
by the appellant. We have concluded that any errors occurring in the trial court were harmless and
neither singly nor collectively require the reversal of the appellant’s conviction. This issue is without
merit.

                                         III. Conclusion
                For the foregoing reasons, we affirm the judgment of the trial court.

                                                         ___________________________________
                                                         NORMA McGEE OGLE, JUDGE




                                                  -67-
