         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                    August 22, 2000 Session

                    STATE OF TENNESSEE v. JOHN D. BROWN

                      Appeal from the Criminal Court for McMinn County
                             No. 95-095   R. Steven Bebb, Judge



                                  No. E1999-02217-CCA-R3-CD
                                       December 18, 2000

The Defendant, John D. Brown, appeals as of right from his McMinn County convictions for first
degree murder and abuse of a corpse. On appeal, he raises nine issues: (1) whether the trial court
failed to properly function as the thirteenth juror in considering the Defendant’s motion for judgment
of acquittal and a new trial; (2) whether the Honorable Steven Bebb erred by failing to recuse himself
upon the grounds that under Tennessee Code Annotated section 17-1-305, only the Honorable
Carroll Ross, the successor in office to the late Judge Mayo L. Mashburn, could rule on the
Defendant’s motion for a new trial; (3) whether the evidence was sufficient to support the verdict
and whether the evidence was sufficient to establish that the offense was committed prior to the
return of the formal charge; (4) whether the trial court erred by failing to grant the Defendant’s
special jury instruction request; (5) whether the trial court erred by not allowing into evidence the
testimony of Frank Hammonds, Polk County General Sessions Judge; (6) whether the trial court
erred by not allowing into evidence the medical records pertaining to the treatment of Danny Jones
at the Athens Regional Medical Center; (7) whether the trial court erred by failing to grant a mistrial
after T.J. Jordan, a witness for the State, volunteered information to the jury that a certain four-wheel
land vehicle found on the Defendant’s property was “stolen”; (8) whether the trial court erred by
overruling the Defendant’s motion to dismiss criminal charges for violating the “anti-shuttling
provisions” of the Interstate Agreement on Detainers Act; and (9) whether the trial court erred by
ordering the Defendant’s sentence for murder to run consecutive to his life sentence in the federal
penitentiary. We hold that the Defendant’s convictions must be reversed and the case remanded for
a new trial because the trial judge failed to properly function as the thirteenth juror and because the
State failed to prove beyond a reasonable doubt that the offenses were committed prior to the return
of the formal charge.


     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed

DAVID H. WELLES, J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER , J.,
joined. JOSEPH M. TIPTON, J., filed a opinion concurring in part and dissenting in part.

S. Randolph Ayres, Athens, Tennessee, for the appellant, John D. Brown.
Paul G. Summers, Attorney General and Reporter; Patricia C. Kusmann, Assistant Attorney General;
Jerry N. Estes, District Attorney General; and Barry A. Steelman, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                      OPINION

        The proof at trial established that the Defendant, John “Wolf” Brown, and the victim, Billy
Ray Crumley, had a rocky relationship. The two met in October 1993 when the Defendant was
attempting to purchase some methamphetamine. The Defendant also met Debbie Bryan, who was
dating the victim. The Defendant and his wife, Elaina Conn Brown, socialized with Billy Crumley
and Debbie Bryan until both couples separated in April 1994. In May 1994, the Defendant started
dating Debbie Bryan. Billy Crumley and Elaina Brown started seeing each other as well, but Elaina
denied that their relationship was romantic.

       After the Defendant and Debbie Bryan started dating, Billy Crumley became very jealous.
He repeatedly told others that he was in love with Debbie and that he planned to kill the Defendant.
The Defendant also stated that he was going to kill Crumley if Crumley did not leave him alone.
Nevertheless, the Defendant would allow Crumley to visit his residence, known as “Booger Hill,”
to purchase and use methamphetamine. The Defendant and Crumley continued to use
methamphetamine together. The Defendant regularly sold methamphetamine at “Booger Hill.”1

        There was a plethora of evidence offered regarding the animosity between the Defendant and
Billy Crumley and regarding Crumley’s violent tendencies. On June 24, 1994, Crumley and Elaina
Brown went to the Defendant’s residence to retrieve some of Elaina’s belongings, incorrectly
believing that the Defendant was not there. According to the Defendant, Debbie and Elaina started
fighting because Elaina called Debbie’s daughter a name. The fight escalated and Crumley started
hitting the Defendant, at which point the Defendant yelled at Vicky Brown, his brother’s ex-wife,
to go get a gun. Vicky went into the house and brought back a gun, which she gave to the Defendant.
The Defendant pointed the gun at Crumley and told him to leave and not come back. The Defendant
said that Crumley called him later that day and said, “I’ll be up there sometime and get you when
you’re least expecting it. . . . It could be from the woods, it could be on the road. . . You’d better look
up in the trees too because I could be up in a tree.”

         Danny “Rambo” Jones, a friend of the Defendant, testified that he had heard Crumley
threaten to kill the Defendant “around a hundred” times, but he had never heard the Defendant
threaten Crumley. Jones said that the Defendant was not a violent man. He testified that Crumley,
however, had tried to kill him twice. The first time was in April 1994 before Crumley and Debbie
Bryan broke up. Jones explained,




         1
           As a result of his drug activity, the Defendant was convicted of several federal drug offenses, for which he is
serving life plus five ye ars in the federa l penitentiary.

                                                           -2-
       He come [sic] over at the house one day and, him and Debbie and Ricky Self, and
       just showed up. And I thought at the time we was [sic] friends, which I was
       mistaken. So I let them come on in the house then and he started saying stuff like
       [the Defendant] and Debbie was [sic] in the house having it on, having sex there in
       my house. And I told him that they wasn’t [sic], you know, they wasn’t [sic] even
       there. And Debbie was sitting there telling them that he wasn’t [sic], that they wasn’t
       [sic], and they wasn’t [sic]. But he didn’t want to believe that, so he just commenced
       on trying to choke on me and started beating me then.

The next incident occurred on Friday, July 8, 1994, two days before the death of Billy Crumley.
Jones testified that Crumley came to his house, kicked the door in, and barged in the house toward
Jones’ wife, Tammy. Jones said that he pushed Crumley out of his house with a shotgun, but then
Crumley started to take the gun away from him. Jones fired the gun, which only had one shell, in
order to empty the gun so Crumley could not shoot him with it. Crumley then threw gasoline in
Jones’ face so that Jones could not see. At this point, Crumley took the shotgun from Jones and
struck Jones with it. Jones said that Crumley “just started chopping on me like I was a piece of
wood.” During this time, Jones’ wife was screaming hysterically, and she called the police. After
Tammy Jones told Crumley she had called the police, Crumley held up the shotgun and said he
“would be back to finish it off, and he planned on getting Wolf Brown [the Defendant] too.” The
Defendant arrived at Jones’ house within fifteen minutes of Crumley leaving. Jones testified that
he and the Defendant were planning to be together at Jones’ house that day, and Crumley knew that.
Jones thought that Crumley had gone there to kill the Defendant, but when the Defendant wasn’t
there, he attempted to kill Jones instead. Jones was taken to the hospital by ambulance and was
treated and released.

         Michael Stansberry testified that on July 8, 1994, he was at Elaina Brown’s house when
Crumley entered carrying a shotgun. Crumley told Stansberry that he had just left Danny Jones’
house and that he had taken the gun away from Jones and beat Jones with it. Stansberry said that
the barrel was bent and the stock was broken. Crumley wanted Stansberry to take him to Wal-Mart
to buy some ammunition so that he could go back and kill Jones. Stansberry said that he tried to talk
Crumley out of killing Jones, but when that proved unsuccessful, he accompanied Crumley to Wal-
Mart and then back to Jones’ house. However, when they approached Jones’ house, they met two
police cars. Crumley threw the shotgun out the window. Both men then jumped out of the car and
ran in different directions. Crumley was arrested and taken to jail. Stansberry testified that he was
friends with both the Defendant and Crumley and further testified that Crumley often threatened to
kill the Defendant.

        Crumley’s mother, Linda Crumley, testified that her son called her from jail and told her that
he had been in a fight at Danny Jones’ house and had been shot. She refused to bail him out of jail,
although she had done so in the past. On the evening of July 9, Crumley again called his mother and
told her he was out of jail. He promised her that he was going to go to his father’s house.




                                                 -3-
        The Defendant testified that Crumley also called him from jail and told him that he had
“better get me $1,500 down here to get out on or you’ll wish you had.” The Defendant said he hung
up on Crumley. He said that Crumley called him again later that night on July 9 and told him that
he was out of jail. The Defendant testified that Crumley said, “I’m coming to get you. . . . I’ll get
everybody that’s there, women, children, I don’t care.” The Defendant spent the night at Debbie’s
house that night because he had his children and he did not want anything to happen around them.
He said that he called his house that night and talked to Jack Presswood, who was staying there.
Presswood told the Defendant that Crumley had called and accused him of lying when Presswood
told Crumley that the Defendant was not there.

        The next day, which was Sunday, July 10, 1994, the Defendant returned to his house with
one of his young sons, Jody. Shortly after he arrived, Crumley called. The Defendant testified that
Crumley said he was coming over, even though the Defendant told him not to come. Billy Webb
and Jack Presswood were there. The Defendant testified that he asked Billy Webb to take his son
away “in case there’s any trouble,” which Billy Webb did.

         Billy Webb testified that he took Jody for a ride in the car, and when they returned, Webb
noticed that Crumley had just pulled up. Webb said that he walked over to Crumley and told him
that it would be best if he just left, but Crumley refused. Webb saw a shotgun in Crumley’s car, but
he did not see Crumley with a weapon when he walked toward the Defendant’s house. Webb saw
Crumley walk to the house, and then Webb left again with the Defendant’s son.

        Three witnesses testified about the death of Billy Crumley. Neil Jack Presswood, a friend
of the Defendant’s, testified for the State. Presswood had been staying at the Defendant’s house
prior to the incident, and he testified that they “were mostly using drugs and just selling drugs and
partying” during that time. They were selling and using methamphetamine.

        Presswood testified that the night before the shooting, Crumley called the Defendant’s house
wanting to purchase drugs. When Presswood told Crumley that the Defendant was not there,
Crumley became very angry. Crumley told Presswood that if Presswood did not put the Defendant
on the phone, “he was going to come up there and shoot everybody.” Presswood did not take the
threat seriously because he had heard Crumley make similar threats ten or fifteen times in the couple
of months preceding this incident. The next day, Crumley called the Defendant’s house again and
talked to the Defendant. Presswood said that after the phone conversation, the Defendant told him
that Crumley was coming over and that if Crumley came over, the Defendant was going to kill him.

        Crumley did arrive at the Defendant’s house, and Presswood said that he went outside to
leave Crumley and the Defendant alone because Crumley was there to purchase drugs. About five
minutes later, the Defendant and Crumley came outside. Presswood testified that Crumley sat on
the picnic table, and the Defendant sat at the foot of the steps to the house. They were talking, but
not yelling. At some point, the conversation turned to Crumley’s phone call the night before, and
Crumley denied making the phone call. Presswood said that he told Crumley, “Well, I know it was
you, Billy. I know your voice.” Crumley responded by saying, “Well, let’s, you know, let’s just get


                                                -4-
these people up here that called and get this problem solved.” Presswood testified that at that time,
the Defendant, who was still sitting on the steps, was twirling his gun, a .357 Magnum, on his finger.
When the Defendant did not respond to Crumley, Crumley said, “If you’re going to kill me, all I ask
is you make it quick.” The Defendant then shot Crumley. Crumley was not armed, and he was
sitting ten to fifteen feet away from the Defendant. Presswood said that Crumley did not act
threateningly in any way before the Defendant shot.

        Presswood testified that after the Defendant shot Crumley, the Defendant told him to help
him pull the body around the side of the house. Presswood and the Defendant then pulled the body
around the house and loaded it on the back of a four-wheeler. The Defendant took the body into the
woods. When he returned, the Defendant told Presswood and Billy Webb, who had arrived at the
house, that “[w]ell, you’ns [sic] know the story now. If you’ns [sic] have got anything to say about
this, say it now, because I don’t want it ever mentioned again.” Presswood said that he only spoke
with the Defendant once about the shooting after that, and the Defendant said that he felt like he had
done the right thing. Presswood testified that he knew the Defendant had buried the body on the
property because you could smell it.

         Presswood further testified that about three weeks after the shooting, the police raided the
Defendant’s house. Presswood, along with several other people, was there at the time. The body
of Billy Ray Crumley was found as a result of the raid. After the raid, Presswood gave three
different statements to the police. At first, he denied his involvement in moving the body. He said
that his third statement told the entire story. Presswood admitted writing the Defendant a letter
telling him that they both knew it was self-defense and not to worry about his testimony. Presswood
said that he wrote that letter because his family had been threatened, but the shooting was not in self-
defense. He admitted that he had pled guilty to federal drug charges and that as part of that plea
agreement he testified against the Defendant in the federal drug trial. He also admitted reaching an
agreement with the State to testify against the Defendant in the murder trial. Presswood had been
charged with accessory after the fact for his involvement in the shooting.

        Billy Webb testified that when he returned to the Defendant’s house the second time, he left
the Defendant’s son in the car and started walking toward the house. He looked toward the house
and saw Presswood and Crumley come out of the house, followed by the Defendant. He said the
Defendant “was doing some hollering, and Billy had walked over to the picnic table. And he clumb
[sic] up on it and he sat down.” The Defendant was standing at the entrance to the house and
Presswood had walked to the side of the shed. Webb said that Crumley kept sitting on the picnic
table and the Defendant kept yelling to Presswood, “Jack, you know he’s calling you a liar? You
hear that, Jack?” Webb said that the Defendant’s voice was “[s]ort of a rage.” Webb then stated,
“Well, at that point in time, it didn’t last but just a matter of a few minutes there before Wolf drew
his pistol. He had a holster on. He drew it and he shot Billy Crumley off the picnic table.” After
the Defendant shot Crumley, Webb saw Presswood grab one of Crumley’s legs and begin to drag
him around the building. Webb said that he left at this point.




                                                  -5-
         The Defendant testified that after Billy Webb left with his son, he told Presswood to take a
rifle and go up in the woods, and he loaded his .357 after Presswood went outside with the rifle. He
had just finished loading the gun when Crumley came in. The Defendant testified that it was just
Crumley and the Defendant in the house; Presswood was in the woods with the rifle. The Defendant
kept Crumley at bay with the gun. A pool table was between them. The Defendant insisted that he
was afraid of Crumley because Crumley was a big man, was violent, and had repeatedly threatened
to kill him. They talked in that room for thirty or forty minutes. Crumley told the Defendant that
he needed money for a lawyer, and he suggested that he and the Defendant go rob some place. The
Defendant said he declined the offer. Crumley got both the Defendant and himself a beer. The
Defendant said he drank a beer with Crumley, but he still had the gun and would not let Crumley get
close to him. He said that he repeatedly asked Crumley to leave, but Crumley would not leave.
Finally, Crumley agreed to leave, and he started out the door. However, once he got outside, he sat
down on the picnic table. When the Defendant again asked Crumley to leave, Crumley replied, “No,
no, we’ve got to get this worked out. . . I’ve just got to get it worked out. I’ve got to have an
attorney.” They started talking about Danny Jones, and Crumley said that Jones deserved the beating
he had given Jones two days before, and he would have killed Jones if he had had a bullet. The
Defendant then brought up Crumley’s telephone call the night before where Crumley had talked to
Presswood and threatened to come up there shooting everybody. Crumley denied making the phone
call and called Presswood a liar. The Defendant yelled for Presswood, who walked around from the
back of the shed and leaned against the four-wheeler. Presswood then told Crumley that he knew
it was Crumley who called. The Defendant testified that Crumley continued to deny calling and that
he went “from mad to furious.” The Defendant said,

       The second time that Jack [Presswood] told him that he, he knew it was him, that he
       did call, about the last and the closest to the exact same thing that Billy said, as I
       recall it, was, “If you’re going to kill me, you’d better do it quick.” And as he was
       saying that, he put both hands beside him and he just had started to move. He never
       got stood up. He just had put his hands down and had straightened up. His -- I’ll say
       his ass had done cleared the picnic table, but he didn’t have his knees straightened.
       I was sitting down and did right like that (indicating), shot that quick. Immediately,
       I jumped up and run over to him. He fell.

        The Defendant testified that after shooting Crumley, he panicked. Presswood grabbed one
of Crumley’s legs and started dragging the body, leaving a trail of blood. The Defendant claimed
that Presswood ordered him to help move the body, so he and Presswood drug the body around the
house. They discussed what to do and decided to bury the body. They loaded the body onto the
four-wheeler and took it into the woods, where the Defendant ultimately buried it in a hole. Before
the Defendant buried the body, Presswood looked at the hole and agreed that it was the best place
to bury Crumley. The Defendant said that Presswood rinsed the blood stains away. They then drove
Crumley’s car to another location.




                                                -6-
                                      I. THIRTEENTH JUROR

        The Defendant first argues that the trial court failed to properly function as the thirteenth
juror in considering his motion for judgment of acquittal and a new trial. The Defendant’s trial was
a four day jury trial in early June 1996, with Judge Mayo L. Mashburn presiding. After the trial, the
Defendant filed a motion for judgment of acquittal and a new trial, which was scheduled to be heard
by Judge Mashburn on July 15, 1996. Unfortunately, Judge Mashburn passed away on July 11,
1996. Judge Carroll Ross was appointed as Judge Mashburn’s successor, but he recused himself
from this case due to a conflict. Subsequently, Judge R. Steven Bebb was assigned to rule on the
Defendant’s motion and to sentence the Defendant.

       On July 9, 1999, Judge Bebb heard argument on the Defendant’s motion. The defense
attorney specifically requested that Judge Bebb consider the evidence as the thirteenth juror. He then
began to discuss the evidence and the credibility of the witnesses, at which point he was interrupted
by Judge Bebb, who said,

        Let me interrupt just a minute. One of the reasons I’m not an appellate judge is
        because it makes me very uncomfortable to think of being a 13th juror in a trial that
        I did not see based upon the record. I’ve read records of trials that I’ve tried and I
        find that it supplements me in making a decision having heard those witnesses
        myself, and so I’m going to leave that part to the Court of Criminal Appeals and the
        Supreme Court of the State of Tennessee.

The defense attorney then ceased arguing about the weight of the evidence. After hearing argument
regarding the other issues, Judge Bebb stated,

        And I don’t want to cut anybody off but let me say this: number one, I feel again at
        an extreme disadvantage not having heard the witnesses in the trial. I have read the
        record on four separate occasions to try to get ready for this hearing. In a way, well,
        I don’t ever wish work on myself, but in a way I wish, it was an interesting transcript
        to read. But I feel at this time the proper thing is Mr. Brown needs to get his appeal
        under way and I’m going to overrule the motion for a new trial.

The Defendant asserts that these statements by the trial judge indicate that he did not properly
perform his function as the thirteenth juror. We agree.

         Tennessee Rule of Criminal Procedure 33(f) provides that “[t]he trial court may grant a new
trial following a verdict of guilty if it disagrees with the jury about the weight of the evidence.” Our
supreme court has stated that this rule “imposes upon a trial court judge the mandatory duty to serve
as the thirteenth juror in every criminal case, and that approval by the trial judge of the jury’s verdict
as the thirteenth juror is a necessary prerequisite to imposition of a valid judgment.” State v. Carter,
896 S.W.2d 119, 122 (Tenn. 1995). Notwithstanding, this rule does not require an explicit statement
on the record that the trial court performed its duty. Id. Compliance with the rule is presumed when


                                                   -7-
the trial court simply overrules a motion for a new trial without comment; however, “where the
record contains statements by the trial judge expressing dissatisfaction or disagreement with the
weight of the evidence or the jury’s verdict, or statements indicating that the trial court absolved
itself of its responsibility to act as the thirteenth juror, an appellate court may reverse the trial court’s
judgment.” Id.; see also Helton v. State, 547 S.W.2d 564, 566-67 (Tenn. 1977); State v. Dankworth,
919 S.W.2d 52, 57-58 (Tenn. Crim. App. 1995). This Court “has no independent authority to act
as a thirteenth juror”; thus, the remedy for the trial judge’s failure to properly function as thirteenth
juror is to remand the case for a new trial. State v. Burlison, 868 S.W.2d 713, 719 (Tenn. Crim.
App. 1993); see also Dankworth, 919 S.W.2d at 59.

        In State v. Moats, 906 S.W.2d 431 (Tenn. 1995), our supreme court explained the reasoning
for the thirteenth juror rule as follows:

        The purpose of the thirteenth juror rule is to be a “safeguard . . . against a miscarriage
        of justice by the jury.” State v. Johnson, 692 S.W.2d 412, 415 (Tenn. 1985)
        (Drowota, J., dissenting). Immediately after the trial, the trial court judge is in the
        same position as the jury to evaluate the credibility of witnesses and assess the weight
        of the evidence, based upon the live trial proceedings. Indeed, this Court has
        recognized that “the trial judge and jury are the primary instrumentality of justice to
        determine the weight and credibility to be given to the testimony of witnesses. In the
        trial forum alone is there human atmosphere and the totality of the evidence cannot
        be reproduced with a written record in this Court.” Bolin v. State, 219 Tenn. 4, 11,
        405 S.W.2d 768, 771 (1966).

Id. at 434-35.

          Given the statements made by our supreme court regarding the purpose of the thirteenth juror
rule, it is difficult to see how a trial judge who has not heard the evidence and who has not seen the
witnesses can act as the thirteenth juror when weight and credibility are issues. As the supreme court
has asserted, appellate courts are “ill-suited . . . to assess whether the verdict is supported by the
weight and credibility of the evidence.” Id. at 435. When a trial judge is asked to review the weight
and credibility of the evidence as the thirteenth juror based upon a written record, the trial judge “is
in no better position to evaluate the weight of the evidence than an appellate court.” Id. However,
in some instances, a judge who has not presided over the trial may be called upon to act as the
thirteenth juror. Tennessee Rule of Criminal Procedure 25(b) provides:

        If by reason of absence, death, sickness or other disability the judge before whom the
        defendant has been tried is unable to perform the duties to be performed by the court
        after a verdict of guilty, any other judge regularly sitting in or who may be assigned
        to the court may perform those duties. If the successor judge is satisfied that he or
        she cannot perform those duties because he or she did not preside at the trial or for
        any other reason, the successor judge may exercise the discretion to grant a new trial.



                                                    -8-
(Emphasis added). In addressing this rule, we have maintained that “a successor judge’s
consideration, pursuant to Rule 25(b), Tenn. R. Crim. P., of whether the duties of the original judge
can be met must include an assessment of his or her ability to act as a thirteenth juror, including
witness credibility.” State v. Nail, 963 S.W.2d 761, 765 (Tenn. Crim. App. 1997). In assessing
whether the successor judge can act as thirteenth juror, the judge

       would need to determine the extent to which witness credibility was a factor in the
       case and the extent to which he had sufficient knowledge or records before him in
       order to decide whether the credible evidence, as viewed by the judge, adequately
       supported the verdict. If these determinations could not be made by the successor
       judge, the verdict could not be approved and a new trial should have been granted.

 Id. at 766 (citing State v. Bilbrey, 858 S.W.2d 911, 915 (Tenn. Crim. App. 1993)). In State v.
Gillon, 15 S.W.3d 492 (Tenn. Crim. App. 1997), we stated, “Implicit in the Nail ruling is that a
judge whose first exposure to the case was presiding over the motion for new trial could rule on the
motion if the record was available so long as witness credibility was not an overriding issue.” Id.
at 502.

         Although Judge Bebb overruled the Defendant’s motion for a new trial, we believe that his
statements on the record indicate his thoughts that witness credibility was an issue and that he could
not perform his duty as thirteenth juror based on the written record of the case. Judge Bebb stated
that he read the record four times to prepare for the hearing, but he maintained that he was
“uncomfortable” acting as thirteenth juror because he did not preside over the trial, and he was “at
an extreme disadvantage” because he did not hear the witnesses. Instead of acting as the thirteenth
juror, Judge Bebb stated that he was “going to leave that part to the Court of Criminal Appeals and
the Supreme Court” and that “the proper thing is Mr. Brown needs to get his appeal under way.” As
we have previously stated, we do not have the authority to act as the thirteenth juror. See Burlison,
686 S.W.2d at 719. Accordingly, we conclude that Judge Bebb did not properly perform his function
as thirteenth juror because of his inability to do so, and we must reverse the Defendant’s convictions
and remand the case for a new trial.

                                    II. FAILURE TO RECUSE

        Although our resolution of the Defendant’s first issue is dispositive, we will consider his
other issues as well. In his second issue, the Defendant argues that Judge Bebb erred by failing to
recuse himself upon the grounds that only Judge Carroll Ross, the successor in office to the late
Judge Mashburn, could rule on the Defendant’s motion for a new trial. Tennessee Code Annotated
section 17-1-305 provides:

       When a vacancy in the office of trial judge exists by reason of death . . . after verdict,
       but before the hearing of the motion for new trial, the trial judge’s successor shall
       rule on the defendant’s motion for new trial after the successor judge has reviewed
       the transcript and the entire record of the trial.


                                                  -9-
Tenn. Code Ann. § 17-1-305 (Supp. 1999). This statute was enacted in 1996, and it replaced the
previous statue which provided that in the event of the death of the trial judge after the verdict but
before the ruling on the motion for a new trial, the losing party was automatically granted a new trial.
See id. § 17-1-305 (repealed 1996). The Defendant asserts that the current statute should be strictly
construed to allow only the successor judge to rule on the motion for a new trial because it denies
the defendant the right to have his entire case heard by the same judge. We disagree.

         As previously discussed, Tennessee Rule of Criminal Procedure 25(b) allows “any other
judge regularly sitting in or who may be assigned to the court” to rule on a motion for a new trial
after the death of the trial judge. That rule, along with Tennessee Code Annotated section 17-1-305,
allows another judge to rule on the motion for a new trial after the death of the trial judge; thus, a
defendant does not have the absolute right to have his entire case heard by the same judge. We
believe that Tennessee Code Annotated section 17-1-305 must be read together with other statutes,
which allow a different judge to sit by interchange over a case when the regular trial judge is
incompetent to hear the case. See id. §§ 17-2-101, -202. It would not be logical to limit the
authority to rule on a motion for a new trial to the successor in office to the late trial judge because
the successor would be in no better position to rule on the motion than any other judge who could
sit by interchange. In this case, Judge Ross was the successor to Judge Mashburn and would have
been the judge to hear the case pursuant to Tennessee Code Annotated section 17-1-305. However,
Judge Ross recused himself because he had previously consulted with the family of the victim about
the possibility of suing the Defendant. Accordingly, it was proper for Judge Bebb to hear the case
by interchange. See id. We find no error.

                             III. SUFFICIENCY OF THE EVIDENCE

        Next, the Defendant challenges the sufficiency of the evidence. He argues that there was
insufficient evidence of guilt and that there was insufficient evidence that the offense was committed
prior to the return of the indictment. We will address these contentions separately.

A. Evidence of guilt
        The Defendant argues that the State failed to prove that he acted with premeditation in the
killing of Billy Crumley. Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings
of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.” Evidence
is sufficient if, after reviewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979). In addition, because conviction by a trier of fact
destroys the presumption of innocence and imposes a presumption of guilt, a convicted criminal
defendant bears the burden of showing that the evidence was insufficient. McBee v. State, 372
S.W.2d 173, 176 (Tenn. 1963); see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing
State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown, 551 S.W.2d 329, 331 (Tenn.
1977)); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); Holt v. State, 357 S.W.2d 57, 61 (Tenn.
1962).


                                                 -10-
         In its review of the evidence, an appellate court must afford the State “the strongest legitimate
view of the evidence as well as all reasonable and legitimate inferences that may be drawn
therefrom.” Tuggle, 639 S.W.2d at 914 (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978)). The court may not “re-weigh or re-evaluate the evidence” in the record below. Evans, 838
S.W.2d at 191 (citing Cabbage, 571 S.W.2d at 836). Likewise, should the reviewing court find
particular conflicts in the trial testimony, the court must resolve them in favor of the jury verdict or
trial court judgment. Tuggle, 639 S.W.2d at 914. All questions involving the credibility of
witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the
trier of fact, not the appellate courts. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App.
1987).

         Looking at the evidence in the light most favorable to the State, the proof established that
Crumley and the Defendant had previously threatened to kill each other. On the day of the killing,
the Defendant stated to Jack Presswood that if Crumley came to his house, he would kill Crumley.
Knowing that Crumley might arrive, the Defendant loaded his gun. Crumley was not armed. The
Defendant shot Crumley from a distance of ten to fifteen feet. According to Jack Presswood,
Crumley had made no threatening movements, and the shooting “was not self-defense.” From this
evidence, a rational jury could have concluded that the Defendant shot Crumley “after the exercise
of reflection and judgment,” thereby finding that the act was premeditated. See Tenn. Code Ann.
§ 39-13-202(d). Therefore, we conclude that the evidence was sufficient to support the conviction
for first degree murder.2

B. Evidence of commission of offense prior to indictment
       In this issue, the Defendant presents a unique and compelling argument. He asserts that his
conviction must be reversed because the State did not prove beyond a reasonable doubt that the
offense was committed before the return of the indictment. After a thorough review of his argument
and the applicable law, we agree.

       Tennessee Code Annotated section 39-11-201 sets forth the State’s burden of proof in
criminal cases as follows:

         (a) No person may be convicted of an offense unless each of the following is proven
         beyond a reasonable doubt:
         (1) The conduct, circumstances surrounding the conduct, or a result of the conduct
         described in the definition of the offense;
         (2) The culpable mental state required;
         (3) The negation of any defense to an offense defined in this title if admissible
         evidence is introduced supporting the defense; and
         (4) The offense was committed prior to the return of the formal charge.



         2
          The Defendant does not argue in his brief that the evidence is insufficient to support the conviction for abuse
of a corpse.

                                                          -11-
(Emphasis added). Thus, it appears that our legislature has mandated that before a person can be
convicted of a criminal offense, the State must prove beyond a reasonable doubt that the person
committed the offense prior to the time he or she was formally charged with the offense. While it
seems obvious that no person would be indicted or otherwise formally charged with the commission
of the offense of murder before the victim was actually killed, the legislature has chosen to require
the State to prove that fact beyond a reasonable doubt. Our research has revealed no explicit
rationale for such a rule, but we believe it may have arisen from the requirements concerning the
content of indictments.

        Tennessee Code Annotated section 40-13-207, entitled “Time of offense,” provides, “The
time at which the offense was committed need not be stated in the indictment, but the offense may
be alleged to have been committed on any day before the finding thereof, or generally before the
finding of the indictment, unless the time is a material ingredient in the offense.” Thus, unless the
time of the offense is material, it does not have to be specifically stated in the indictment; an
indictment is sufficient if it alleges that the offense occurred sometime prior to the return of the
indictment. In State v. Shaw, 82 S.W. 480 (Tenn. 1904), our supreme court explained the rule as
follows:

       The rule to be deduced from our cases is that, where there is no statute of limitations
       barring the offense, it is unnecessary to state the day, or even the year, but it is
       sufficient to aver generally that the offense was committed before the finding of the
       indictment; that it is not necessary to state in any case the day on which the offense
       was committed, unless the date itself is of the essence of the offense, as of offenses
       committed against laws passed for the preservation of the Sabbath, or unless the time
       is important to bring the offense within the operation of new or amended statutes or
       the like; but where there is a statute of limitations that bars the offense there should
       be a sufficiently definite averment of time in the indictment to show that the offense
       was committed within the statutory limit; and, finally, that where an impossible date
       is given, as in the present indictment, it will be disregarded if the offense is one as
       to which there is no statute of limitations, or as to which the date itself is not
       important.

Id. at 480 (emphasis added).

       It is not clear how this rule regarding the allegation of the time of the offense in the
indictment became a matter of proof at trial, but cases addressing this rule have stated,

       The rule is that the offense must be proved to have been committed prior to the
       finding of the indictment and within the time specified by any applicable statute of
       limitation; and, except where a special date is essential or time is of the essence of
       the offense, the time of the commission of the offense averred in the indictment is not
       material and proof is not confined to the time charged.



                                                -12-
State v. West, 737 S.W.2d 790, 792 (Tenn. Crim. App. 1987); Prince v. State, 529 S.W.2d 729, 733
(Tenn. Crim. App. 1975). The Court of Appeals of Georgia, in addressing a similar rule in Georgia,
has stated,

       From the earliest times, both in England and in Georgia, it has been held that unless
       time is an essential element of the offense charged, the time of the commission of the
       offense alleged in the indictment, presentment, accusation, information, or affidavit,
       is immaterial; and, proof of the commission of the offense at any time prior to the
       finding of the indictment or presentment, the filing of the accusation or information,
       or the swearing of the affidavit where made the foundation of the accusation, will
       sustain a conviction if the proof also establish the commission of the offense within
       the statute of limitations.

Brown v. State, 62 S.E.2d 732, 733-34 (Ga. App. 1950).

         From these cases, we surmise that the rule requiring the State to prove that the offense
occurred prior to the return of the indictment was a result of the rule that the exact time of the
offense is not material and an indictment need only allege that the offense occurred prior to the
indictment. We question, however, the necessity of making this rule a matter for the determination
of the trier of fact. If the indictment alleged an impossible date, the indictment could be challenged
prior to trial pursuant to Tennessee Rule of Criminal Procedure 12(b)(2). If the proof at trial
established that the offense charged was not committed until after the return of the indictment, the
trial court could take appropriate action at that time to dismiss the proceedings against the defendant.
It appears unnecessary to ask a jury to determine whether a defendant committed an offense before
he or she was charged with the commission of that offense.

         Nevertheless, our legislature has required the State to prove beyond a reasonable doubt that
the offense was committed prior to the return of the formal charge. Granted, this is an easy matter
to prove. Generally, the first thing to happen in a trial after the jury is sworn is that the indictment
is read to the jury. See Raybin, Tennessee Criminal Practice and Procedure, § 26.10. Our supreme
court has stated that the reading of the indictment “is an appropriate and proper procedure. The
indictment at best is a mere accusation to inform the jury of the charges against the defendant.” State
v. Bane, 853 S.W.2d 483, 484 (Tenn. 1993). The indictment is not to be considered evidence of a
defendant’s guilt, see id., but we do believe the indictment itself can establish the date upon which
it was returned. Thus, the reading of the indictment to the jury, coupled with evidence of when the
offense was committed, would establish that the offense was committed prior to the return of the
indictment. Also, the State could merely ask an appropriate witness whether the actions of the
defendant constituting the offense occurred before the defendant was charged with that offense. This
would satisfy the requirements of the statute as well.

        The problem with this case is that there is no evidence that the indictment was ever read to
the jury or shown to the jury, and no witness was asked whether the offense occurred prior to the
return of the indictment. Before the presentation of proof, the trial judge stated, “All right. Mr.


                                                 -13-
Brown, you’re charged with the offense of murder of Billy Ray Crumley, and abuse of a corpse.
How do you plead to those charges?” The Defendant replied, “Not guilty,” and the trial commenced.
At the end of the trial, the trial judge instructed the jury that the “indictment in this case charges the
defendant with the crime of first degree murder . . . and the crime of abuse of a corpse.” He also
instructed the jury that the “indictment in this case is the formal written accusation charging the
defendant with a crime” and that the “state must have proven beyond a reasonable doubt all of the
elements of the crime charged, that the crime, if in fact committed, was committed by this defendant
in McMinn County, Tennessee, and that it was committed before the finding and returning of the
indictment in this case.” Although the trial court instructed the jury regarding the indictment, there
is no evidence contained in the record that he gave the jury the indictment.

        We realize that it is obvious that the murder was committed prior to the return of the
indictment. Nevertheless, this fact must be proven beyond a reasonable doubt. Because the
indictment was not read to the jury and because the State did not otherwise offer proof of the date
of the indictment or proof that the offense was committed before the return of the indictment, the
State did not prove this fact at all. Accordingly, we have no choice but to reverse the Defendant’s
convictions due to this lack of proof.

        We do, however, conclude that this lack of proof will not prevent the retrial of the Defendant.
In State v. Hutcherson, 790 S.W.2d 532 (Tenn. 1990), our supreme court noted that “where the
reversal is for trial error, the case may be remanded for a new trial without violating the Double
Jeopardy Clause, but where an appellate court finds the prosecution’s proof on the issue of guilt or
innocence of defendant was insufficient to convict, Double Jeopardy commands a dismissal.” Id.
at 534. The court stated that “the basic distinction is whether the defect that requires reversal
involved the guilt or innocence” of the defendant, and it determined that the failure to establish
venue, which must also be proven before a defendant can be convicted, did not involve the guilt or
innocence of the defendant. Id. at 535. We believe that establishing that the offense was committed
prior to the return of the indictment is similar to establishing venue; it does not involve the guilt or
innocence of the defendant. Here, the guilt of the Defendant was clearly proven. Therefore, we
reverse the Defendant’s convictions and remand the case for a new trial.

                         IV. SPECIAL JURY INSTRUCTION REQUEST

         Next, the Defendant argues that the trial court erred by failing to grant his special jury
instruction request. The State’s primary witness against the Defendant was Neil Jack Presswood,
who had been indicted for accessory after the fact in the same indictment as the Defendant and who
had been convicted, along with the Defendant, of federal drug charges. Presswood admitted
testifying against the Defendant in the federal drug trial as part of his plea agreement, and he
admitted that he had agreed with the State to testify against the Defendant in the murder trial. As
a result, the Defendant requested the following special jury instruction based in part on the pattern
jury instructions for the Sixth Circuit of the United States Court of Appeals, which was denied by
the trial court:



                                                  -14-
        You have also heard that the government has promised certain witnesses that they
        may receive a recommendation of leniency which might include a substantially
        reduced sentence in exchange for truthful cooperation and testimony against the
        defendant, or that the witness will be immune from prosecution for certain crimes.
        It is permissible for the government to make such promises. However, you should
        consider the testimony of such a witness with more caution than the testimony of
        other witnesses. Consider whether such testimony may have been influenced by the
        government’s promises. Do not convict the defendant based on the unsupported
        testimony of such a witness, standing alone, unless you believe their testimony
        beyond a reasonable doubt. The fact that another person has been convicted of a
        crime is not itself evidence that the defendant is guilty, and you cannot consider this
        against the defendant in any way.

        You have also heard testimony from a witness who may have an addiction to drugs.
        An addict may have a constant need for drugs, and for money to buy drugs, and may
        also have a greater fear of imprisonment because the supply of drugs may be cut off.
        Think about these things and consider whether this testimony may have been
        influenced by the government’s promise. Again, do not convict a defendant based
        on the unsupported testimony of such a witness, standing alone, unless you believe
        it beyond a reasonable doubt.

Instead of giving the requested instruction, the trial court gave the following standard instruction
concerning the credibility of witnesses:

        You are the exclusive judges of credibility of the witnesses and the weight to be
        given to their testimony. If there are conflicts in the testimony of the different
        witnesses you must reconcile them, if you can, without hastily or rashly concluding
        that any witness has sworn falsely, for the law presumes that all witnesses are
        truthful. In forming your opinion as to the credibility of a witness, you may look to
        the proof, if any, of (1) his or her general character, (2) the evidence, if any, of the
        witness’ reputation for truth and veracity, (3) the intelligence and respectability of the
        witness, (4) his or her interest or lack of interest in the outcome of the trial, (5) his
        or her feelings, (6) his or her apparent fairness or bias, (7) his or her means of
        knowledge, (8) the reasonableness of his or her statements, (9) his or her appearance
        and demeanor while testifying, (10) his or her contradictory statements as to material
        matters, if any are shown, and all the evidence in the case tending to corroborate or
        to contradict him or her.

        A defendant has a constitutional right to a complete and correct charge of the law. State v.
Teel, 793 S.W.2d 236, 249 (Tenn. 1990). In determining whether jury instructions are erroneous,
this Court must read the entire charge and only invalidate it if, when read as a whole, it fails to fairly
submit the legal issues or misleads the jury as to the applicable law. See State v. Vann, 976 S.W.2d
93, 101 (Tenn. 1998); State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994). When the


                                                  -15-
instructions given by the trial judge correctly, fully, and fairly set forth the applicable law, it is not
error to refuse to give a special instruction requested by a party. State v. Bohanan, 745 S.W.2d 892,
897 (Tenn. Crim. App. 1987).

        The instruction regarding witness credibility given by the trial judge correctly, fully, and
fairly set forth the applicable law in the State of Tennessee. The jury was informed that it should
consider a witness’ bias and interest in the case in addressing witness credibility, as well as any
contradictory statements made by the witness. On cross-examination of Jack Presswood, the
Defendant was able to bring Presswood’s plea agreements to the attention of the jury, as well as
Presswood’s contradictory statements in the statements he gave to police and in the letter he wrote
to the Defendant in jail. While the closing arguments were not included in the record, we have no
doubt that the defense argued that these factors affected Presswood’s credibility. Accordingly, we
find no error in the trial court’s refusal to give the special instruction to the jury.

                       V. TESTIMONY OF JUDGE FRANK HAMMONDS

        The Defendant asserts that the trial court erred by refusing to allow Judge Frank Hammonds,
the Polk County General Sessions Judge, to testify concerning Billy Crumley’s reputation for
violence and a specific threat of violence on the part of Billy Crumley. Prior to bringing in the jury
on the third day of the trial, the trial judge stated,

        I have previously ruled that I will not permit any further testimony of the alleged
        violence of the victim, Billy Ray Crumley, on the grounds that it is cumulative. I
        have further ruled that no further evidence of any specific acts of violence on the part
        of Crumley will be permitted, nor any further evidence of the victim’s alleged threats
        to kill the defendant will be permitted.

In response, the Defendant made several offers of proof, one of which was the testimony of Judge
Hammonds. Judge Hammonds testified that he knew the victim, Billy Crumley, and that Billy
Crumley “did have a reputation of violence when he was drinking or on drugs.” Judge Hammonds
said that Crumley appeared before him in general sessions court a number of times. One time, Judge
Hammonds saw Crumley get “real loud with the clerk over some costs,” so he asked Crumley to
come back into his chambers so that he could calm Crumley down. Once Crumley was back there,
Crumley “flew off the handle, started to strike me I’m sure. But Officer Burris was in there and he
stopped him.” Although Crumley did not hit the judge, he did pull back his fist and say, “I’ll knock
the hell out of you.” On appeal, the Defendant asserts that the trial court should have admitted this
testimony because it was relevant to show a pertinent character trait of the victim, “namely his
reputation for violence.”

        The admissibility of evidence is a matter within the sound discretion of the trial court, and
this Court will not disturb the trial court’s ruling absent a clear showing of an abuse of that
discretion. See State v. Cauthern, 967 S.W.2d 726, 743 (Tenn. 1998); State v. Banks, 564 S.W.2d
947, 949 (Tenn. 1978). Tennessee Rule of Evidence 403 allows a trial court to exclude evidence “if


                                                  -16-
its probative value is substantially outweighed by . . . considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.”

        Based on our review of the evidence, we cannot say that the trial judge abused his discretion
by excluding Judge Hammond’s testimony because it was cumulative. The Defendant was given
ample opportunity to present evidence tending to show that the victim had a reputation for violence.
Virtually every witness who testified and who knew the victim said that the victim was violent.
Even the victim’s mother testified that the victim had been arrested “40-some odd” times for
“fighting and drinking.” Several witnesses testified regarding the victim’s brutal beating of Danny
Jones and the victim’s repeated threats to kill the Defendant. Accordingly, we find no error in the
exclusion of this evidence.

                         VI. MEDICAL RECORDS OF DANNY JONES

       The Defendant asserts that the trial court erred by refusing to admit Danny Jones’ hospital
records. The Defendant argues that the records would have shown that Jones had multiple bruises
about his body, as well as a strong odor of gasoline, which would corroborate Jones’ testimony
regarding his beating by the victim. In refusing to admit the medical records, the trial court stated,

       I will not permit the medical records of Mr. Jones to go into evidence. He has, both
       he and his wife have testified concerning his affray with Mr. Crumley. No one has
       contested that. They have both testified as to his medical treatment, and as far as I’m
       concerned, all you’re doing is cluttering up the record with medical records to
       corroborate testimony of both Jones and his wife, none of which has been contested.

         As stated previously, the admissibility of evidence is a matter within the sound discretion of
the trial court, and this Court will not disturb the trial court’s ruling absent a clear showing of an
abuse of that discretion. See Cauthern, 967 S.W.2d at 743; Banks, 564 S.W.2d at 949. We see no
abuse of discretion in refusing to allow the medical records into evidence. Evidence may be
excluded if its probative value is substantially outweighed by undue delay, waste of time, or needless
presentation of cumulative evidence. Tenn. R. Evid. 403. Here, both Danny Jones and his wife,
Tammy Jones, testified regarding the victim’s attack of Danny Jones. While the State attempted to
attack the testimony of Mr. and Ms. Jones regarding their relationship and dealings with the
Defendant, the State never attempted to refute the Jones’ testimony that Danny Jones was attacked
and beaten by Billy Crumley. Therefore, the admission of the medical records showing that Danny
Jones was bruised and smelled of gasoline would have merely “cluttered up the record,” as stated
by the trial court. There was no need to present that evidence, as it was cumulative. This issue is
without merit.

                            VII. FAILURE TO GRANT A MISTRIAL

       Next, the Defendant asserts that the trial court erred by failing to grant a mistrial after T.J.
Jordan, a witness for the State, volunteered information to the jury that a certain four-wheel land


                                                 -17-
vehicle found on the Defendant’s property was “stolen.” Mr. Jordan was the Tennessee Bureau of
Investigation agent who coordinated the raid on the Defendant’s home on July 27, 1994. During his
testimony, he identified a picture of a red four-wheel land vehicle as the one which was found on the
Defendant’s property, and then he volunteered information that the vehicle was stolen. He testified,
“And in fact, this four, four-wheeler was then determined to be stolen.” The Defendant did not
object and questioning continued. During the next recess, the trial judge asked the attorneys if Mr.
Jordan had said the vehicle was stolen. The State confirmed that he had indeed said that, and the
Defendant requested that it be stricken. After more discussion, the Defendant moved for a mistrial,
which the trial court denied. The trial court then called the jury in and gave the jury the following
instruction:

        Ladies and gentlemen, before you leave, let me tell you something here. If you’ll
        recall, during the testimony of Mr. Jordan, T.J. Jordan, he identified a photograph of
        . . . what do they call that thing, a four-wheeler? Do you all remember his testimony?
        The four-wheeler, which he, he said something to the effect that it was later
        determined that it was stolen. Now let me tell you folks something. We have
        absolutely no evidence that that thing was stolen, or if it was stolen, we have
        absolutely no evidence that Mr. Brown stole it or knew anything about it, or knew it
        was stolen. So, my instruction to you is that you will totally disregard that. . . part
        of this testimony, and not under any circumstances hold it against this defendant in
        any way. Now can you all represent to me that you will follow my instruction with
        respect to that?

All of the jurors responded affirmatively.

       The Defendant argues the trial court should have granted a mistrial because the improper
statement by Mr. Jordan “poisoned” the minds of the jury “with the idea that Defendant was
involved in some sort of dishonest criminal activity (i.e., theft of a four-wheel land vehicle) and no
matter how strongly the trial court admonishes the witness and sustains the objection the juror’s
minds were irreversibly poisoned.” We disagree.

       The decision of whether to grant a mistrial is a matter within the discretion of the trial court,
and we will not disturb the trial court’s action on appeal absent an abuse of that discretion. State v.
Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991). Generally, a mistrial will only be
declared “if there is a manifest necessity requiring such action by the trial judge.” Arnold v. State,
563 S.W.2d 792, 794 (Tenn. Crim. App. 1977). “If it appears that some matter has occurred which
would prevent an impartial verdict from being reached, a mistrial may be declared.” Id.

         We find no “manifest necessity” for a mistrial in this case. While Mr. Jordan did offer
improper testimony, the jury was instructed to disregard his statements. A jury is presumed to follow
a trial court’s instructions not to consider inadmissible evidence. Millbrooks, 819 S.W.2d at 443.
Moreover, the jury heard a multitude of evidence regarding criminal activity on the part of the
Defendant. Several witnesses, including the Defendant, testified that the Defendant regularly sold


                                                 -18-
methamphetamine from his home. We do not believe that testimony regarding a stolen four-wheeler
would have greatly altered the jurors’ opinions regarding the Defendant’s character or his illegal
activity. It certainly would not have “poisoned” the minds of the jurors such that the jury could not
return an impartial verdict. We find no error.

                             VIII. ANTI-SHUTTLING PROVISIONS

         The Defendant next contends that the trial court erred by overruling his motion to dismiss
the criminal charges because the State violated the anti-shuttling provisions of the Interstate
Agreement on Detainers Act. The Interstate Agreement on Detainers is a compact between the
states, the District of Columbia, Puerto Rico, the Virgin Islands, and the United States. See
Carchman v. Nash, 473 U.S. 716, 719 (1985). Tennessee has adopted the Agreement, which is
codified at Tennessee Code Annotated section 40-31-101. The Agreement is designed to “encourage
the expeditious and orderly disposition of . . . charges [outstanding against a prisoner] and
determination of the proper status of any and all detainers based on untried indictments, informations
or complaints.” Tenn. Code Ann. § 40-31-101, art. I. The provisions of the Agreement are triggered
only when a “detainer” is filed with the custodial or sending state, which includes the United States,
by another state which has untried charges pending against the prisoner. United States v. Mauro, 436
U.S. 340, 343 (1978). “A detainer is a request filed by a criminal justice agency with the institution
in which a prisoner is incarcerated, asking the institution either to hold the prisoner for the agency
or to notify the agency when release of the prisoner is imminent.” Nash, 473 U.S. at 719. Once a
detainer has been filed against a prisoner, the Agreement provides two methods by which the
prisoner may be brought to trial in the receiving state. See Tenn. Code Ann. § 40-31-101, art. III-art.
IV. Once a prisoner is brought to the receiving state, article IV(e) of the Agreement provides, “If
trial is not had on any indictment, information or complaint contemplated hereby prior to the
prisoner’s being returned to the original place of imprisonment pursuant to article V(e) hereof, such
indictment, information or complaint shall not be of any further force or effect, and the court shall
enter an order dismissing the same with prejudice.” Id. § 40-31-101, art. IV(e). Relying on this
provision, the Defendant argues that the McMinn County Criminal Court lost jurisdiction to try him
because prior to trial he was transferred back and forth between federal and state custody in violation
of the Agreement, and he asserts that the McMinn County Criminal Court lost jurisdiction to
sentence him because he was transferred back and forth between federal and state custody prior to
sentencing. He therefore requests that the criminal proceeding against him be dismissed.

        We first note that our review of the record does not reveal the filing of a detainer against the
Defendant. Although the Defendant was transferred between state and federal custody on several
occasions, the State obtained custody of the Defendant on each occasion through a writ of habeas
corpus ad prosequendum. The United States Supreme Court has explicitly held that a writ of habeas
corpus ad prosequendum, “directing the production of a . . . prisoner for trial on criminal charges,
is not a detainer within the meaning of the Agreement and thus does not trigger the application of
the Agreement.” Mauro, 436 U.S. at 349. We have also recognized that the Agreement “is not the
exclusive means of transfer of prisoners between jurisdictions” and have held that “the writ of habeas
corpus ad prosequendum [is] not . . . a detainer within the meaning of the agreement and thus does


                                                 -19-
not trigger the application of the agreement.” Metheny v. State, 589 S.W.2d 943, 945 (Tenn. Crim.
App. 1979). Therefore, we hold that the provisions of the Agreement were never triggered because
a detainer was not filed against the Defendant. Because the Agreement was never triggered, the
transfer of the Defendant between federal and state custody before the final disposition of the charges
against him did not violate the Agreement. See Mauro, 436 U.S. at 360-61; Metheny, 589 S.W.2d
at 945.

         Furthermore, even if the provisions of the Agreement had been triggered, we find that the
State did not violate the provisions. The Agreement applies only to prisoners who are already
serving a sentence of imprisonment in another jurisdiction. See Tenn. Code Ann. § 40-31-101 art.
III(a), art. IV(a) (referring to a prisoner who “has entered upon” and who “is serving a term of
imprisonment”). Although the Defendant was held in federal custody while he was awaiting trial
on federal drug charges, he was not tried on those charges until December of 1995. He was
sentenced to life plus sixty months, or five years, on March 4, 1996. Thus, the Agreement would
not have been triggered until the Defendant had begun to serve his federal sentence after conviction.
After trial and sentencing on the federal charges, the Defendant remained in federal custody until
custody was transferred to the State of Tennessee pursuant to a writ of habeas corpus ad
prosequendum issued on April 16, 1996. After custody was transferred pursuant to that writ, the
Defendant was tried on first degree murder and abuse of a corpse charges in McMinn County
between June 3, 1996 and June 6, 1996, and the trial resulted in guilty verdicts on both charges.
After trial, the Defendant remained in state custody until September 1996, when he was returned to
federal custody. Because the Defendant was tried on the indictments prior to being returned to
federal custody, the State could not have violated the Agreement. See id. § 40-31-101, art. IV(e).
Likewise, when the Defendant was again returned to state custody from federal custody in 1999 for
sentencing, he had already been tried and convicted on the charges. Because he had already been
tried on the indictments, the provision mandating dismissal of the charges “[i]f trial is not had on any
indictment . . . prior to the prisoner’s being returned to the original place of imprisonment” was
inapplicable. See id.; see also Nash, 473 U.S. at 725-26; State v. Evitts, 915 S.W.2d 468, 769-70
(Tenn. Crim. App. 1995); State v. Hill, 875 S.W.2d 278, 281-82 (Tenn. Crim. App. 1993).
Accordingly, we conclude that the State did not violate the anti-shuttling provisions of the Interstate
Agreement on Detainers.

                                         IX. SENTENCING

        Finally, the Defendant argues that the trial court erred by ordering his life sentence for first
degree murder to run consecutively to his federal sentence of life plus five years. He asserts that it
is “cruel and unusual punishment” to give him consecutive life sentences when the first sentence is
a mandatory life sentence without the possibility of parole. He also argues that to do so defies logic.

       When an accused challenges the length, range, or manner of service of a sentence, this Court
has a duty to conduct a de novo review of the sentence with a presumption that the determinations
made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is
“conditioned upon the affirmative showing in the record that the trial court considered the sentencing


                                                 -20-
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).

         When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,
if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatment. State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim. App. 1988); Tenn.
Code Ann. §§ 40-35-102, -103, -210.

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence even if we would have
preferred a different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

         Tennessee Rule of Criminal Procedure 32(c)(2) provides that when the defendant has
“additional sentences or portions thereof to serve, as the result of conviction in other states or in
federal court, the sentence imposed shall be consecutive thereto unless the court shall determine in
the exercise of its discretion that good cause exists to run the sentences concurrently and explicitly
so orders.” (Emphasis added). A trial court may also sentence a defendant to consecutive sentences
if the court determines that the defendant has a record of criminal activity which is extensive. Tenn.
Code Ann. § 40-35-115(b)(2).

        When sentencing the Defendant to a consecutive sentence, the trial court mentioned the
positive things the Defendant had done since being incarcerated in federal prison, such as becoming
a Christian and taking classes offered by the prison. The court, however, placed great emphasis on
the Defendant’s extensive prior criminal activity involving drugs. The court stated, “I think in the
exercise of my duty . . . based on that extensive record and Rule 32 . . . that I would be derelict in
my duties if I did not run this consecutive.” Under our sentencing statute and Rule 32 of the
Tennessee Rules of Criminal Procedure, the trial court imposed a lawful sentence. It appears that
the court considered the relevant sentencing principles. Accordingly, we cannot find error in the
order of consecutive sentencing.

                                           CONCLUSION

        We hold that the trial court erred by failing to properly function as the thirteenth juror and
that the State failed to prove that the offense was committed prior to the return of the formal charge.
Accordingly, we reverse the Defendant’s convictions and remand the case for a new trial.




                                                  -21-
       ___________________________________
       DAVID H. WELLES, JUDGE




-22-
