         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                        OCTOBER 1997 SESSION
                                                    FILED
                                                     January 12, 1998

                                                    Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
STATE OF TENNESSEE,              )
                                 ) C.C.A. No. 02C01-9702-CR-00054
      Appellee,                  )
                                 ) Shelby County
V.                               )
                                 ) Hon. Jon Kerry Blackwood, Judge
JOHN PARKER ROE,                 )
                                 ) (First Degree Murder)
      Appellant.                 )
                                 )




FOR THE APPELLANT:               FOR THE APPELLEE:

Wayne Emmons                     John Knox Walkup
2502 Mt. Moriah Rd., A100        Attorney General & Reporter
Memphis, TN 38115

Edward Witt Chandler             Deborah A. Tullis
Chandler Law Firm                Assistant Attorney General
2502 Mt. Moriah Rd., A100        Cordell Hull Bldg., 2d Floor
Memphis, TN 38115                425 Fifth Avenue North
                                 Nashville, TN 37243

                                 William L. Gibbons
                                 District Attorney General

                                 Thomas D. Henderson
                                 Karen Cook
                                 Assistant District Attorneys General
                                 Criminal Justice Complex, Suite 301
                                 201 Poplar Avenue
                                 Memphis, TN 38103




OPINION FILED: _______________________


AFFIRMED


PAUL G. SUMMERS,
Judge
                                   OPINION



      The appellant, John Parker Roe, was convicted by a jury of first degree

murder for killing his wife, Lisa Michelle Trainor Roe. Judge Jon Kerry

Blackwood sentenced the appellant to life in prison. On appeal, the appellant

presents eight issues for our review:

              1. Whether the evidence was sufficient regarding premedi-
                 tation and deliberation and sanity.

              2. Whether the trial judge as the thirteenth juror should have
                 set aside the guilty verdict of first degree murder as to
                 the elements of premeditation and deliberation.

              3. Whether the indictment should have been dismissed on
                 the grounds of double jeopardy under the Fifth Amendment
                 of the United States Constitution and Article I, Section 10
                 of the Tennessee Constitution.

              4. Whether the trial court should have denied the appellant’s
                 use of expert witness testimony because the appellant
                 refused to discuss the facts of the killing with the state’s
                 psychologist.

              5. Whether the state should have been allowed to proceed
                 with a “death-qualified” or “conviction-prone” jury over
                 defense objection that there was no aggravating
                 circumstance, specifically torture.

              6. Whether the jailhouse conversation between the
                 appellant and his friend should have been
                 suppressed on the grounds that it was illegally
                 intercepted in violation of Title III of the Omnibus
                 Crime Control and Safe Streets Act, as well as the
                  Fourth Amendment to the United States Constitution.

              7. Whether the testimony regarding Michelle Roe’s
                 state of mind should have been admitted over the
                 defense’s objection.

              8. Whether a mistrial should have been granted
                 after the testimony of Penny Mays.

       After carefully reviewing the record before us, we affirm the appellant’s

conviction.




                                        FACTS




                                         -2-
       John Parker Roe, a Memphis police officer, shot his wife of two years,

Lisa Michelle Trainor Roe, in the early morning hours of Friday, September 16,

1994, at their home in Shelby County. Michelle, a student at Shelby State

Community College, died as a result of a gunshot wound to the head.



       During the spring of 1994, Daniel Kaltreider attended a barbecue in which

Michelle and John Roe were present. Sometime during this barbecue, the

appellant and Kaltreider, who had not met before, engaged in a conversation.

The appellant told Kaltreider that he had a tremendous amount of anger toward

his wife and that he kept track of her by checking her odometer. The appellant

then stated, “I’m gonna kill her, do you think I could get away with it if I said it

was an accidental discharge?” Kaltreider replied, “No, I’ll have to testify against

you in open court.” When the appellant then threatened to kill Kaltreider,

Kaltreider replied, “I fail to see the humor in that.” The appellant then mentioned

something about an artery and said, “Well, I’ll just have to play crazy for about

seven--six months.” Kaltreider replied, “No, you’ll have to play crazy a lot longer

than six months, and by the time you get finished, you will be crazy.” Because

he wanted to give the appellant the benefit of the doubt, Kaltreider did not report

this conversation to the Memphis Police Department. However, upon learning of

Michelle Roe’s death, he reported his conversation with the appellant to the

Shelby County District Attorney’s office.



       Later that same year, around June or July of 1994, the appellant called a

friend of his, John “Jay” Barnette, and asked him to come to his house. He told

Barnette that he and Michelle had been in a fight. He stated that he was afraid

she was going to leave him, so he asked Barnette to come over to help calm the

situation down. The appellant told Barnette that he had handcuffed Michelle to

the bed to prevent her from leaving him. Shortly thereafter, he saw Michelle

sitting on the bed with her right hand tied to the bed and her face in her lap.

When he saw her face, Barnette could tell she had been crying.



                                           -3-
       The appellant had previously told Barnette that he and Michelle fought a

great deal and that he had thought about killing her. Also, the appellant told

Barnette that he had choked her before and had thought about choking her to

death. Barnette further testified that he and the appellant frequently engaged in

conversations about killing people and disposing of their bodies. Barnette stated

that the appellant had talked about killing Michelle and her parents. The

appellant told Barnette that he thought Michelle was lying to him and he would

check her odometer and follow her to school. Barnette even accompanied the

appellant several times when he followed Michelle.



       On September 14, 1994, two days before she was killed, Michelle

approached Peter Connelly, one of her teachers at Shelby State Community

College, and told him that her husband had abused her and had threatened to

kill her. She asked him to call her parents if she did not come to class on Friday.

She wrote her parents’ phone numbers on a piece of paper and gave the paper

to Connelly.



       The next day, September 15, 1994, was the appellant’s birthday. He had

taken the day off from work. At approximately 11:00 p.m., the appellant began a

five-hour telephone conversation with a fellow police officer from the Memphis

Police Department, Carl Fowler. It apparently was not uncommon for the

appellant to engage in lengthy telephone conversations. During this

conversation, the appellant indicated to Fowler that he believed Michelle had

lied to him about a wedding gift. At trial, Fowler testified that nothing occurred

during the conversation which would indicate that anything was wrong.       The

phone conversation ended around 4:00 a.m. because Fowler was getting tired

and the appellant told him that he needed to wake Michelle up for an early class.

Except for the appellant, no one knows what occurred at the Roes’ home

between the hours of 4:00 a.m. and 7:00 a.m.; but Michelle Roe was killed by



                                         -4-
John Roe during this period of time.



       According to Fowler, the appellant telephoned and asked him to come to

his house around 7:00 a.m. When he arrived at the appellant’s house around

8:00 a.m., the appellant answered the door, and Fowler attempted to go into the

house. However, the appellant blocked the doorway. Fowler asked the

appellant three times about Michelle, and after Fowler asked him the third time,

the appellant admitted that he shot her, pointing to a bloodstain on the knee of

his sweatpants. According to Fowler, the appellant was not wearing a shirt or

shoes, only sweatpants. At first, the appellant told Fowler that he had been

rabbit hunting with Michelle and had accidentally shot her in the head with his

service weapon. The appellant also told Fowler that Michelle was in the bottoms.

Fowler told him that they had to call the police, and the appellant irately

responded “No.”



       Meanwhile, Catherine Trainor, Michelle’s mother, had received a

telephone call from her husband saying that Michelle had not arrived at school.

Mrs. Trainor, who was at work, tried to call Michelle at her home, but the

telephone was busy. She then asked a friend at work to drive her to Michelle’s

house. When they arrived at the house around 8:30 a.m., Michelle’s car, the

appellant’s truck, and another vehicle unfamiliar to Mrs. Trainor were in the

driveway.



       Mrs. Trainor walked up to the front porch and saw the appellant and

another man standing on the porch. The appellant introduced Mrs. Trainor to

Carl Fowler. The appellant told Mrs. Trainor that Michelle had gone to school.

Mrs. Trainor then told the appellant that she had received a call from someone

telling her that Michelle had not shown up for school. The appellant told her that

Michelle’s friend Amy had taken her to school, but Mrs. Trainor knew that the

appellant was lying. Amy was the one who called to say that Michelle was not at



                                         -5-
school. Because she felt that something was wrong, Mrs. Trainor left to get

help.



        Fowler told the appellant that he was leaving to call the police, and the

appellant said okay. Fowler came upon a motorcycle police officer, William

Hughes, as he was driving to a store to call the police. As Fowler was talking to

the officer, Mrs. Trainor arrived and spoke with Officer Hughes as well. Mrs.

Trainor waited there while the situation at her daughter’s house was investigated.

Officers returned later and told her that her daughter was dead.



        Officer Hughes called for backup, and once Officer Scott Chambers

arrived as backup, the two officers went to the appellant’s house. When they

arrived, the appellant, who had been wearing only sweatpants when Fowler left

to get help, was now dressed in blue sweatpants, a white t-shirt, and tennis

shoes and was sitting on the tailgate of his truck drinking from a glass. The

appellant, who responded to questions by the officers, appeared to be under

some stress and was sweating a great deal.



        Officer Chambers searched the house while Officer Hughes stayed with

the appellant. Officer Chambers found Michelle dressed in her white uniform

lying on the bed. A towel had been draped over the top of her head. When

Officer Chambers came out of the house, he and Officer Hughes searched the

appellant for weapons, handcuffed him, and informed him of his Miranda rights.



        The paramedics arrived, but they were unable to get a heartbeat from

Michelle.   One of the officers asked paramedic Randall Rhodes to examine the

appellant because he had been sweating profusely. The appellant told Rhodes

that he had not been taking any drugs, but had been under a great deal of stress

lately. Although the appellant’s vital signs were somewhat high, they were

normal for an excited situation. Although Rhodes did not recommend that the



                                         -6-
appellant be taken to a hospital, the appellant was taken to Memphis Medical

Center Hospital. There, he was observed by Major Clyde Keenan, a watch

commander with the Memphis Police Department, who was called to the hospital

because a Memphis police officer had been arrested. He testified that the

appellant was lying in the back of the car, halfway on the seat and halfway on the

floorboard. He testified that the appellant appeared to be “over the edge” and

had “sort of a wild look about him.”



       The appellant was taken from the hospital to the Criminal Justice Center

in Memphis where he met with his attorney, Thomas Hansom. Hansom testified

that the appellant “appeared to be unable to communicate” and “if he [the

appellant] did respond in any way it was not coherent.”



       Elton Douglas, a Shelby County jailer, also testified that he observed the

appellant for five days on a “suicide watch.” He stated that when asked a

question, the appellant would mumble a response. The jailer also testified that

since the time when the appellant was first brought to the jail, the appellant’s

behavior had changed. He could now ask him a question and get an answer.



       Larry Graham, a friend of the appellant’s, went to visit him in jail.

Because there was a glass window separating Graham from the appellant, the

two had to communicate by telephone. Graham testified that while the two were

talking, the appellant put down the phone and indicated to Graham that he

wanted him to retrieve a bag that was hidden behind the appellant’s house.

Although Graham tried to find the bag, he was unable to do so and told the

appellant. Approximately one week after Graham searched for this bag, the

Sheriff’s Office called him and asked him to answer some questions about the

bag. Graham told the sheriff that the appellant had asked him to look for the bag

and that the appellant had told him that he had accidentally killed Michelle.




                                         -7-
       Steve Scott, a firearms identification expert with the Tennessee Bureau of

Investigation, testified that the bullet that killed Michelle was fired from the

appellant’s service weapon and that the gun and all safety features were in

operating condition.



       Dr. O.C. Smith, assistant medical examiner, performed the autopsy on

Michelle Roe. He testified that the cause of death was a gunshot wound to the

right temple. Dr. Smith also noted that the victim had a bruise on the inside of

her left wrist and the backs of her elbows had abrasions, as if they had been

scraped over a carpet. Dr. Smith also observed abrasions below Michelle’s

lower lip that occurred after her death. Dr. Smith further determined from the

pattern of blood spatters on the headboard of the bed that Michelle was sitting

up when she was shot, although the appellant disputes this assertion. However,

when Dr. Smith first saw Michelle, she was fully clothed and was lying on the bed

with both feet on the bed.



                        SUFFICIENCY OF THE EVIDENCE



       In his first issue, the appellant argues that the evidence was insufficient as

to premeditation and deliberation and sanity. Therefore, his conviction should be

reversed or reduced to second degree murder.



       The state argues that the evidence is sufficient. It contends that because

the appellant admitted to killing his wife, the only issue for the jury to determine

was whether the killing was a result of premeditation and deliberation. The state

asserts that the jury could infer premeditation from the appellant’s use of a gun

against an unarmed victim and that the appellant acted deliberately by arranging

the victim’s body on the bed, by calmly telling Fowler that he had shot Michelle,

by calmly telling Michelle’s mother that Michelle was at school, and by getting

fully dressed after Fowler left to get help. Also, the state contends that the



                                          -8-
appellant executed his plan to shoot Michelle and then claimed that it was an

accident and that he was insane. The state insists that the appellant was unable

to raise a reasonable doubt as to his sanity.



       A jury found the appellant guilty of murder in the first degree, which at that

time was defined as “[a]n intentional, premeditated and deliberate killing of

another.” Tenn. Code Ann. § 39-13-202 (Supp. 1994). A premeditated act is

“one done after the exercise of reflection and judgment.” Tenn. Code Ann. § 39-

13-201(b)(2) (1991). A deliberate act is “one performed with a cool purpose.”

Tenn. Code Ann. § 39-13-201(b)(1).



       Great weight is accorded jury verdicts in criminal trials. Jury verdicts

accredit the state’s witnesses and resolve all evidentiary conflicts in the state’s

favor. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Banes, 874

S.W.2d 73, 78 (Tenn. Crim. App. 1993). On appeal, the state is entitled to both

the strongest legitimate view of the evidence and all reasonable inferences which

may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832 (Tenn. 1978).

Moreover, guilty verdicts remove the presumption of innocence, enjoyed by

defendants at trial, and replace it with a presumption of guilt. State v. Grace,

493 S.W.2d 474 (Tenn. 1973). Appellants, therefore, carry the burden of

overcoming a presumption of guilt when appealing jury convictions. Id.



       When appellants challenge the sufficiency of the evidence, this Court

must determine whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements

of a crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979);

Tenn. R. App. P. 13(e); State v. Duncan, 698 S.W.2d 63 (Tenn. 1985). The

weight and credibility of a witness’ testimony are matters entrusted exclusively to

the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542 (Tenn. 1984);

Byrge v. State, 575 S.W.2d 292 (Tenn. Crim. App. 1978).



                                         -9-
       The appellant admitted to killing his wife. Several months before he killed

her, the appellant told a total stranger, Daniel Kaltreider, that he was going to kill

his wife and claim that it was an accident or that he was insane, which the

appellant eventually did. Also, the appellant told Jay Barnette that he had

thought about killing Michelle by choking her to death, and Barnette and the

appellant had engaged in several conversations about how to kill people and

then dispose of their bodies. The appellant stated to Barnette the possibility of

killing Michelle and her parents. On the day that he killed Michelle, the appellant

talked calmly to Michelle’s mother, to police officers Hughes and Chambers, and

to paramedic Rhodes. The appellant changed clothing after Officer Fowler left to

get help.



       The jury chose to accredit the state’s witnesses on the issues of

premeditation, deliberation, and sanity. Based upon the record before us, we

see no evidence requiring us to disturb the jury’s verdict. The evidence is

sufficient. Therefore, this issue is without merit.




                               THIRTEENTH JUROR



       In his second issue, the appellant argues that the trial judge, as the

thirteenth juror, should have set aside the guilty verdict of the jury because the

evidence was insufficient to prove beyond a reasonable doubt the appellant’s

sanity. Although the appellant concedes that the trial judge approved the jury’s

verdict when he ruled on motion for new trial, he still contends that the trial court

committed error. In his brief, he asserts that “[t]he trial judge did not set forth any

facts or make any findings sufficient to justify this approval and this was error

and the conviction should be reversed. . ..” Therefore, the appellant contends



                                         -10-
that his conviction should be reversed or reduced to second degree murder.

The state argues that the trial judge did perform his role as thirteenth juror by

approving the jury’s verdict. The state asserts that the trial judge was not

required to place on the record his findings of fact.



       Rule 33(f) of the Tennessee Rules of Criminal Procedure provides what is

commonly referred to as the “thirteenth juror” rule:

            (f) New Trial Where Verdict Is Against the Weight of the
       Evidence.-- The trial court may grant a new trial following a verdict of
       guilty if it disagrees with the jury about the weight of the evidence.
       If the trial court grants a new trial because the verdict is contrary
       to the weight of the evidence, upon request of either party the
       new trial shall be conducted by a different judge.


       The appellant argues that the trial judge committed error by not making

any findings on the record. The proper inquiry is not whether the trial court made

any findings on the record, but whether the trial court unequivocally found the

evidence sufficient to support the conviction. The appellant even concedes that

the trial judge approved the jury’s verdict when he ruled on the appellant’s

motion for new trial.     During the hearing for a new trial, the trial judge stated,

“[a]s the thirteenth juror, the Court accepts the verdict.”



       Once the trial court approves the verdict as the thirteenth juror and

imposes judgment, the review of the evidence on appeal is quite limited,

requiring the accrediting of the testimony of the witnesses for the state and the

resolution of evidentiary conflicts in favor of the state. State v. Grace, 493

S.W.2d 474, 476 (Tenn. 1973). The trial judge neither equivocated on whether

the evidence was sufficient nor expressed dissatisfaction with the judgment. See

State v. Dankworth, 919 S.W.2d 52 (Tenn. Crim. App. 1995). Therefore, this

issue is without merit.



                                 DOUBLE JEOPARDY




                                           -11-
       Third, the appellant argues that the indictment should have been

dismissed on the grounds of double jeopardy. He asserts that he was “punished

twice:” once by the Memphis Police Department by terminating his employment

and again by prosecution of the first degree murder charge. The state argues

that loss of employment does not constitute punishment. It maintains that the

appellant was fired from his job as a police officer because he violated the

policies of the Memphis Police Department, not because he killed his wife.



       We must agree with the state that loss of employment from one’s job,

while undoubtedly disturbing, is not “punishment” as contemplated for double

jeopardy purposes. This issue is without merit.



               TRIAL COURT’S DENIAL OF EXPERT TESTIMONY



       Next, the appellant argues that the trial court erred in denying the defense

the testimony of expert witnesses at trial because the appellant refused to

discuss the facts of the killing with the state’s psychologist. The appellant filed

notice of his intention to use insanity as a defense. He contends that his use of

pills called Mini-Thins caused him to suffer from “toxic psychosis.” The appellant

argues that the state’s psychologist, Dr. Lynne D. Zager, routinely testified for the

state in criminal cases and was a “personal friend” of Tom Henderson, the

prosecutor in this case.   Furthermore, the appellant argues that he refused to

make a statement about the facts of the case to Dr. Zager, rather than refusing

to be examined.



       The state argues that the trial court properly excluded expert witness

testimony by defense experts regarding insanity. The state asserts that this

issue is waived because the record on appeal does not contain the preliminary

hearing transcript upon which the trial court based its decision to exclude expert

witness testimony. Nevertheless, the state addressed this issue in its brief and



                                        -12-
argued that the trial court properly excluded expert testimony by the appellant

pursuant to Rule 12.2(d) of the Tennessee Rules of Criminal Procedure. The

state maintains that the appellant, who on advice from counsel, refused to

cooperate with Dr. Zager on three separate occasions. Thus, the trial court

subsequently found that the appellant had willfully failed to comply with its order

that he submit to a psychiatric evaluation by the state’s expert and denied the

appellant the use of expert witnesses.



       Although the preliminary hearing transcript is not included in the record,

the order denying expert testimony entered by Judge Lafferty1 is part of the

record before us. Rule 12.2(c) of the Tennessee Rules of Criminal Procedure

provides:

               (c) Mental Examination of Defendant.-- In an appropriate
       case the court may, upon motion of the district attorney, order
       the defendant to submit to a mental examination by a psychiatrist
       or the other expert designated for this purpose in the order of the
       court. No statement made by the defendant in the course of any
       examination 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 impeach-
       ment purposes or on an issue respecting mental condition on
       which the defendant has introduced testimony.

Rule 12.2(d) of the Tennessee Rules of Criminal Procedure states:

               (d) Failure to Comply.--If there is a failure to give
       notice when required by subdivision (b) of this rule or to submit
       to an examination when ordered under subdivision (c) of this
       rule, the court may exclude the testimony of any expert witness
       offered by the defendant on the issue of the defendant’s
       mental condition.


       The appellant raised the issue of sanity, yet wanted the court to, in effect,

tie the hands of the prosecutors by not having the appellant submit to a mental

examination. The appellant argues that he did not refuse to be examined, just

not to discuss the “facts of the case” with the state’s psychologist. Rule 12.2(c)

clearly protects the appellant’s constitutional rights. The appellant made the

decision not to comply with Rule 12. He cannot now complain that he was in any

       1
           Judg e Bla ckwo od w as de signa ted to h ear th is cas e afte r Judg e Laf ferty su ffered a me dical e merg ency.


                                                                -13-
way prejudiced. The state, like the appellant, is entitled to a fair trial. State v.

Livingston, 607 S.W.2d 489 (Tenn. Crim. App. 1980). This issue is without merit.



                             DEATH-QUALIFIED JURY



       In his next issue, the appellant presents a twofold argument that the jury

selection process violated his constitutional rights: the state engaged in

misconduct by seeking the death penalty based upon an aggravating

circumstance that it knew it could not prove and consequently, acquired a

“death-qualified” or “conviction-prone” jury, which prejudiced the appellant.

Although the appellant sought a clarification of the aggravating circumstance

upon which the state based its decision to seek the death penalty, the state

never revealed the nature of the aggravating circumstance until after the

appellant was found guilty of first degree murder. The appellant contends that



the state wanted to prejudice the jury in its favor by getting a “death-qualified” or

“conviction-prone” jury.



       The state argues that the decision to seek the death penalty was within

the discretion of the prosecutor. In seeking the death penalty, the state

attempted to prove the aggravating circumstance of torture through alleged

instances of spousal abuse. The state insists that the appellant has not shown

how the state’s decision to seek the death penalty based upon an aggravating

circumstance of torture was “based upon anything other than the facts of this

crime.”



       In addressing the appellant’s argument on this issue, we begin first with

his contention that he was prejudiced by the selection of a “death-qualified” or

“conviction-prone” jury. The appellant provides no evidence to support his

contention that a death-qualified jury prejudiced him. Furthermore, as the state



                                         -14-
correctly notes in its brief, the United States Supreme Court and the Tennessee

Supreme Court have both found that a death-qualified jury could apply the law to

the facts. See Lockhart v. McCree, 476 U.S. 162 (1986); State v. McKay, 680

S.W.2d 447 (Tenn. 1984). Thus, we conclude that this issue is without merit.



       Next, with regard to the appellant’s contention of prosecutorial

misconduct, we must agree to some extent. A prosecutor’s duty encompasses

far more than securing a conviction. His or her role is

          not of an ordinary party to a controversy, but of a sovereignty
          whose obligation to govern impartially is as compelling as its
          obligation to govern at all; and whose interest, therefore,
          in a criminal prosecution is not that it shall win a case,
          but that justice shall be done. . . . He [she] may prosecute with
          earnestness and vigor--indeed, he [she] should do so. But,
          while he [she] may strike hard blows, he [she] is not at liberty to
          strike foul ones. It is as much his [her] duty to refrain from
          improper methods calculated to produce a wrongful
          conviction as it is to use every legitimate means to bring about
          a just one.


Berger v. United States, 295 U.S. 78 (1935). See also State v. Spurlock, 874

S.W.2d 602, 611 (Tenn. Crim. App. 1993); State v. Smith, 803 S.W.2d 709, 710

(Tenn. Crim. App. 1990).



       While we fail to find that the prosecution acted in bad faith, we admonish

the state for pursuing the death penalty based upon the aggravating

circumstance of torture, which consisted of alleged instances of abuse occurring

months before the victim was killed. At trial, the state admitted that it had no

legal authority for its position, and conceded its position when questioned by the

trial court, which later ruled in favor of the appellant after hearing the evidence

provided by the state.



       Furthermore, we must note that the state had only one aggravating

circumstance, torture, on which it based its decision to seek the death penalty.

Our Supreme Court defined torture in State v. Williams, 690 S.W.2d 517, 529

(Tenn. 1985), as “the infliction of severe physical or mental pain upon the victim

                                         -15-
while he or she remains alive and conscious.” We find it difficult to believe that

the prosecutors actually believed that instances of alleged abuse that occurred

months before the victim’s death could be considered torture as defined by our

highest court. Although we conclude that the prosecutors’ actions did not affect

the verdict in this case, they would be well advised to refrain from using such

weak aggravators in future trials.



                         INTERCEPTED CONVERSATION



        Next, the appellant argues that his jailhouse conversation with his friend

Larry Graham was illegally intercepted, thus constituting a warrantless seizure of

information. The state, however, asserts that nothing in the record indicates that

this conversation was intercepted or how the sheriff’s office learned about the

context of the conversation, which dealt with hiding a bag of videotapes and sex

toys.



        The state incorrectly asserts that nothing in the record indicates how the

sheriff’s office learned about this bag. During the motion for new trial hearing,

Lieutenant E. D. Scallions of the Shelby County Sheriff’s Department testified

that he had received a telephone call from a woman who refused to identify

herself. The woman stated to Scallions that she had talked to Larry Graham’s

wife and that his wife had told her about a conversation between the appellant

and Graham. Scallions testified that Graham was then interviewed and the

sheriff’s department began looking for a bag that had been placed in the vicinity

of the appellant’s house.



        The state is correct, however, in its assertion that the appellant did not

offer any evidence that his conversation with Graham had been intercepted.

This fact, coupled with what appears to be a logical explanation regarding how

the sheriff’s department learned of the bag’s existence, leads us to conclude that



                                         -16-
this issue is without merit.



                    STATE OF MIND HEARSAY EXCEPTION



       The appellant’s next issue concerns the testimony of Peter Connelly, who

was one of Michelle Roe’s teachers at Shelby State Community College.

Connelly testified that two days before she was killed

              Michelle came up to me after class, and she stated to me
              that her husband had abused her and that her husband
              had threatened to kill her. And she asked me to call
              her mom and dad if she did not show up for clinic on
              Friday. And she wrote down the phone numbers of
              her mom and dad on this piece of paper.


       On appeal, the state argues that Connelly’s testimony is relevant and

admissible under Tennessee Rule of Evidence 803(3), which is commonly

referred to as the “state of mind” hearsay exception. It asserts that Connelly’s

testimony is admissible to rebut the appellant’s assertion in his opening

statement that his marriage to the victim was “a good marriage and a happy

marriage” and that the appellant and the victim loved each other. The state

maintains that because the marital relationship of the appellant and the victim

was an issue at trial, Connelly’s testimony is relevant.



       The appellant, however, argues that Connelly’s testimony is not relevant

and is “rank hearsay.” The appellant asserts that the state is trying to use “the

deceased’s state of mind to prove the defendant’s state of mind.” The appellant

further contends that Connelly’s testimony was “extremely prejudicial with

respect to the issue of premeditation and deliberation” because the appellant

could not confront the deceased, thereby violating his constitutional rights.



       The first step is to determine whether Peter Connelly’s testimony is

relevant. Tennessee Rule of Evidence 401 states: “‘Relevant evidence’ means

evidence having any tendency to make the existence of any fact that is of



                                        -17-
consequence to the determination of the action more probable or less probable

than it would be without the evidence.”



       The relationship between the appellant and the victim was an issue at

trial. On appeal the state relies solely on the fact that the appellant opened the

door by declaring in his opening statement that he and the victim had “a good

marriage and a happy marriage.” However, other instances of trouble in the

couple’s marriage also made their relationship relevant at trial. The victim’s

mother, Catherine Trainor, and Jay Barnette testified that there had been

problems in the couple’s marriage. Therefore, although the state focuses solely

on the appellant’s opening statement, the couple’s marital relationship would still

have been an issue based upon the testimony of these two witnesses.

Consequently, we find, as did the trial court, that Connelly’s testimony was

relevant.



       Next, we must determine whether the testimony is hearsay. On appeal,

the state argues that Connelly’s testimony is admissible under Tennessee Rule

of Evidence 803(3), the “state of mind” hearsay exception as some indication of

the victim’s feelings toward the appellant. The state, however, at trial relied on

State v. Howell, No. 03C01-9406-CR-00203 (Tenn. Crim. App. at Knoxville, Feb.

12, 1996), perm. app. denied, concurring in results only, (Tenn. July 8, 1996),

arguing that Connelly’s testimony of the victim’s statements was being offered to

prove premeditation and deliberation by the appellant.



       Tennessee Rule of Evidence 801(c) defines hearsay as “a statement,

other than one made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted.” Tennessee Rule

of Evidence 803(3) states that the following types of statements are admissible

as exceptions to the hearsay rule:

       A statement of the declarant’s then existing state of mind,
       emotion, sensation, or physical condition (such as intent,


                                          -18-
       plan, motive, design, mental feeling, pain, and bodily
       health), but not including a statement of memory or belief
       to prove the fact remembered or believed unless it
       relates to the execution, revocation, identification, or
       terms of declarant’s will.


       The following provides an interpretation of the 803(3) state of mind

hearsay exception:

       In order for Rule 803(3) to apply, the declarations of mental
       condition should expressly assert the declarant’s mental state.
       Common examples include statements of love (‘I love Karen’),
       fear (‘I’m afraid Adolph will kill me’), and hate (‘I hate him’).
       Many times a statement does not literally assert the declarant’s
       mental state when offered to prove that mental state. If so,
       the statement should be admitted as nonhearsay.... In any
       event, both circumstantial declarations of mental state and
       express declarations of mental state are admissible.

Neil P. Cohen et al., Tennessee Law of Evidence § 803(3).2, at 540 (3d ed.

1995) (emphasis added).



       We begin with the fact that the state offered Connelly’s testimony at trial

for one purpose, to prove the appellant’s premeditation and deliberation, yet on

appeal, contends that it was offered to rebut the appellant’s assertion that he and

the victim had “a good marriage and a happy marriage.” At trial, the state relied

on Howell, which indicates that Rule 803(3) permits a victim’s statement to prove

the defendant’s state of mind. However, Rule 803(3) does not permit such an

interpretation.   As noted earlier, the state of mind hearsay exception allows the

declarant’s state of mind to be proven, and no one else’s. Therefore, the state

erred by relying on Howell to prove premeditation and deliberation by the

appellant.



       In its brief, the state also incorrectly asserts that Connelly’s testimony was

admissible under Rule 803(3), the state of mind hearsay exception. Tennessee

Law of Evidence in its interpretation of Rule 803(3) states that “[m]any times a

statement does not literally assert the declarant’s mental state when offered to

prove that mental state. If so, the statement should be admitted as nonhearsay.”

Id. Section 801.7 of Tennessee Law of Evidence, which discusses nonhearsay


                                        -19-
declarations to prove circumstantially the declarant’s mental state, states that

“utterances offered for the underlying implied assertion that is circumstantially

implicit in the literal spoken or written words. . . . [are] often viewed as

nonhearsay.” Id. § 801.7, at 498-99 (emphasis in original); see State v. Goins,

No. 03C01-9502-CR-00026 (Tenn. Crim. App. at Knoxville, filed July 30, 1996).



        Nowhere in Peter Connelly’s testimony is there an express assertion of

the declarant’s, that is the victim’s, mental state. Connelly’s testimony does,

however, contain statements by the victim that circumstantially imply her mental

state toward the appellant at the time the statements were made. The key to

determining whether a statement is hearsay is the purpose for which it is offered.

Therefore, had the state at trial offered the statements of the victim to rebut the

appellant’s assertion in his opening statement that he had a good marriage,

Connelly’s testimony would have been admissible as nonhearsay for a

circumstantial implication of the victim’s mental state. However, the state did not

offer Connelly’s testimony for that purpose at trial, but instead offered his

testimony of the victim’s state of mind to prove the appellant’s state of mind as to

premeditation and deliberation. This was error. However, because the evidence

as to premeditation and deliberation is overwhelming, we conclude that any

error was harmless. Tenn. R. Crim. P. 52(a).



                             MOTION FOR A MISTRIAL



       In his last issue, the appellant argues that the trial court erred by not

granting his motion for a mistrial. The appellant moved for a mistrial after the

testimony of Penny Mays, one of the victim’s instructors at Shelby State

Community College. She testified that during a conversation she had with

Michelle Roe the day before she was killed, Michelle indicated to her that she

was fearful, although she did not indicate why or of whom she was frightened.




                                          -20-
       At trial, the state argued that Ms. Mays testimony was similar to Peter

Connelly’s testimony in that it showed that in the days preceding the victim’s

death she was fearful and that she asked Ms. Mays, as well as Mr. Connelly, to

call her parents if she did not show up for class on Friday. The defense,

however, at trial argued that Ms. Mays testimony “was more general [than

Connelly’s testimony]--it was much more vague. There was not a threat to kill . .

..” The defense moved to have Ms. Mays’ testimony stricken, and the trial court



agreed. The trial court then instructed the jury to disregard Ms. Mays’ testimony.



       In his brief, the appellant argues that the trial court could not “unring the

bell” by simply telling jurors not to consider the testimony of Ms. Mays once they

had heard it. The appellant contends that Mays’ testimony was extremely

prejudicial regarding the issue of premeditation and deliberation. The state

however argues that because the trial judge instructed the jury to ignore Mays’

testimony, the jury is presumed to have followed his instructions. Thus, the state

maintains that the trial court correctly denied the appellant’s motion for a mistrial.



       The decision whether to grant a mistrial is within the sound discretion of

the trial court. State v. Jones, 733 S.W.2d 517, 522 (Tenn. Crim. App. 1987).

The trial judge’s decision will not be overturned on appeal unless there was an

abuse of that discretion. Id. A mistrial is usually appropriate in a criminal case

only where there is a “manifest necessity.” Arnold v. State, 563 S.W.2d 792, 794

(Tenn. Crim. App. 1977). The purpose for declaring a mistrial is to correct

damage done to the judicial process when some event has occurred which

precludes an impartial verdict. Id. The burden of establishing a “manifest

necessity” lies with the appellant.



       The appellant conceded at trial that Ms. Mays’ testimony was extremely

general and vague, yet now argues that her testimony was so prejudicial that a



                                         -21-
mistrial should have been granted. The trial judge instructed the jury “to

disregard the testimony of the last witness, Miss Mays. You are not to consider

that testimony, at all, for any purpose whatsoever. You can totally disregard that

testimony.” Based upon the record before us, we conclude that Ms. Mays’

testimony did not preclude an impartial verdict by the jury. Accordingly, this

issue is without merit.

                                  CONCLUSION



       After careful consideration of the issues presented by the appellant, we

affirm his conviction of first degree murder.




                                                 _______________________
                                                 PAUL G. SUMMERS, Judge



CONCUR:




____________________________
JOHN H. PEAY, Judge




____________________________
DAVID G. HAYES, Judge




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