         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                     July 17, 2012 Session

         STATE OF TENNESSEE v. GEORGE ANDREW STANHOPE

                   Appeal from the Circuit Court for Hickman County
                     No. 06-5132 CR      Timothy L. Easter, Judge


               No. M2011-00272-CCA-R3-CD - Filed September 12, 2013


The Defendant, George Andrew Stanhope, was indicted for first degree premeditated murder,
three counts of first degree felony murder, theft of property valued at $1,000 or more but less
than $10,000, aggravated burglary, and aggravated rape. See Tenn. Code Ann. §§ 39-13-
202, -13-502, -14-103, -14-105(a)(3), -14-403. Following a jury trial, the Defendant was
convicted of first degree premeditated murder, two counts of first degree felony murder, theft
of property valued at $1,000 or more but less than $10,000, and aggravated burglary. The
jury acquitted the Defendant of the charge of aggravated rape and one count of first degree
felony murder. The trial court merged the two first degree felony murder convictions with
the first degree premeditated murder conviction. The jury imposed a sentence of life without
the possibility of parole for the first degree premeditated murder conviction. The trial court
held a sentencing hearing on the remaining convictions and imposed a sentence of six years
for the aggravated burglary conviction and a sentence of four years for the theft conviction.
The trial court ordered the sentences to be served consecutive to each other and to the
sentence for the first degree premeditated murder conviction, for an effective sentence of life
without the possibility of parole plus ten years. In this appeal as of right, the Defendant
contends (1) that the trial court erred in denying the Defendant’s motion to suppress
statements he made to the police; (2) that the trial court erred by not allowing defense counsel
to review the personnel file of a former police detective; (3) that the in-court security around
the Defendant was excessive and gave the jury the impression that he was in custody; (4) that
the evidence was insufficient to sustain the Defendant’s convictions; (5) that the trial court
erred by not merging the Defendant’s convictions for theft and aggravated burglary; (6) that
the statutory aggravating circumstance of the victim’s age was unconstitutional; (7) that a
new trial was warranted because one of the jurors failed to disclose her relationship with the
court clerk during voir dire; and (8) that the Defendant was entitled to a new trial due to
cumulative error.1 Discerning no error, we affirm the judgments of the trial court.


1
For the purposes of clarity and brevity, we have renumbered and reordered the issues as stated by the
Defendant in his brief.
     Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and N ORMA M CG EE O GLE, J., joined.

Gary W. Wicks, Sr., and Robert L. Booker, Franklin, Tennessee, for the appellant, George
Andrew Stanhope.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Kim R. Helper, District Attorney General; Michael Joseph Fahey, II, and Kate
Yeager, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                                 OPINION

                                      FACTUAL BACKGROUND

                                               I. Guilt Phase

       The victim, Lillie Moran, was last seen alive on the afternoon of April 5, 2006.
Sammy Ferguson testified at trial that he leased a cow pasture adjacent to the ninety-year-old
victim’s house in a “secluded area” of Hickman County. On April 5, 2006, Mr. Ferguson
spoke to the victim in her driveway around 3:00 p.m. when she returned home from a
physical therapy appointment. The victim’s neighbor, David Oxman,2 had driven the victim
to the appointment in her car, a tan 1998 Ford Escort station wagon. The victim had a
follow-up appointment scheduled with the physical therapist for the next day, but the victim
never showed up for the appointment and did not answer her phone when the physical
therapist’s office called to remind her of the appointment.

       At approximately 3:00 p.m. on April 6, 2006, Deputy Levi Mobley of the Hickman
County Sheriff’s Department (HCSD) responded to “a possible death” call at the victim’s
home. Deputy Mobley testified that he met Mr. Oxman on a side deck of the house near the
carport. According to Deputy Mobley, the victim’s car was not in the carport and Mr.
Oxman was “somewhat” upset. The victim used a side entrance as the main entrance to her
home instead of the front door. Deputy Mobley testified that there were pry marks on the
screen door and that it “had been apparently forced open.” The inside handle of the screen
door was broken off and found lying on a washing machine inside the home. A crow bar
from the victim’s tool shed was found on a bench in the carport. The victim’s phone line had



2
    Mr. Oxman died prior to the Defendant’s trial.

                                                     -2-
been cut and two small plug-in lights the victim kept on her porch were found in the yard “a
fairly good distance from the house.”

        Deputy Mobley testified that he entered the house with another deputy and found the
victim in a first floor bedroom. The victim was lying on the bed and “had trauma to the right
side of her head.” The victim was clothed and “covered up” to her chest with a sheet. The
victim’s hands were crossed and resting on her torso. A bloody pillow was propped up on
the headboard next to the victim’s head. A purse and a nightgown were found lying on the
bed next to the victim’s body. The victim’s bed appeared to have been pushed over “about
a foot” and several coins were scattered across the bedroom floor. An empty “coin sorter”
was found on the victim’s nightstand. Deputy Mobley checked the victim for a pulse and
determined that she was dead. Deputy Mobley testified that he did not touch anything else
in the bedroom besides the victim’s neck and arm.

       The evidence at trial established that the Defendant’s grandmother lived on a hill 200
yards from the victim’s house. Sometime between 2:00 and 3:00 a.m. on the morning of
April 6, 2006, the Defendant pulled into a local gas station driving the victim’s car. Tristan
Louis Malston testified that he was working at the gas station that morning when the
Defendant came in alone. Mr. Malston testified that the Defendant was very quiet that
morning. Christopher M. Campbell testified that he was working at the Waffle House in
Dickson that morning when the Defendant came into the restaurant by himself around 3:00
a.m.3 The Defendant left and came back to the restaurant around 7:00 a.m. driving the
victim’s car. Mr. Campbell testified that he did not have a ride home, so he accepted a ride
with the Defendant. Mr. Campbell further testified that he spent the entire day with the
Defendant in Nashville and Dickson and that the Defendant had a revolver with him.

        The Defendant’s ex-girlfriend, Leandra Smith-Winters, testified that she saw the
Defendant at 6:15 a.m. on April 6, 2006, as she was dropping her son off at daycare.
According to Ms. Smith-Winters, the Defendant was alone and was driving the victim’s
station wagon. The Defendant gave Ms. Smith-Winters a ring that morning. According to
Ms. Smith-Winters, the Defendant had not had a job since January 2006. The victim’s niece,
Dorothy L. King, identified the ring the Defendant gave to Ms. Smith-Winters as having
belonged to the victim. Ms. King also testified that the victim’s station wagon was valued
at $3,500 in April 2006. Ms. Smith-Winters testified that she saw the Defendant two more
times that day. The Defendant was still driving the victim’s car, but Mr. Campbell was with
him when she saw him later on in the day.



3
 Two witnesses testified that Mr. Campbell “clocked in” around 9:00 p.m. on April 5, 2006, and worked
until 6:15 a.m. on April 6, 2006.

                                                 -3-
       At approximately 10:30 p.m. on April 6, 2006, Sergeant Jeff Lovell of the Dickson
County Sheriff’s Department (DCSD) spotted the victim’s car pull up to a pay phone at
Tuffy’s Market. As the Defendant got out of the car to use the pay phone, Sgt. Lovell drew
his weapon and ordered the Defendant to lie down on the ground. Sgt. Lovell ordered Mr.
Campbell to exit the car and lie down on the ground as well. Deputy Paul Montgomery of
the DCSD handcuffed the Defendant and checked his driver’s license to confirm his identity.
Deputy Montgomery then placed the Defendant in the backseat of his cruiser and activated
the cruiser’s audio recording device. At trial, the audio recording was played for the jury.
The Defendant told Deputy Montgomery, without any prompting, to “look under the front
seat” when he searched the car because there was “a .32 revolver under there.” While the
Defendant was alone in the cruiser, he stated that he wanted the police to take him to jail so
he could call Ms. Smith-Winters and tell her he had been “arrested for murder.”

       The Defendant was eventually moved from Deputy Montgomery’s cruiser to a HCSD
cruiser that did not have an audio recording device. Once in the HCSD cruiser, the
Defendant started “causing a little bit of a commotion” and motioning for officers to come
to the cruiser. Sgt. Carl Hutchinson of the HCSD testified that when he approached the
cruiser, the Defendant said that he knew “what this [was] all about . . . [h]omicide.” Sgt.
Hutchinson went and got Jimmy Barnett, then a detective with the HCSD, to come speak
with the Defendant. Mr. Barnett testified that the Defendant repeatedly told him that he
knew “what this [was] about.” Mr. Barnett eventually asked the Defendant, “what” it was
all about, and the Defendant responded “homicide.” The Defendant then pointed at Mr.
Campbell and said that Mr. Campbell “didn’t have anything to do with it.”

        Mr. Barnett testified that the Defendant stated that he had left his grandmother’s house
the night before and had gone to the victim’s house. The Defendant told Mr. Barnett that he
cut the victim’s phone line with a knife and then knocked on her door to ask if he could use
the phone. The victim answered the door and invited the Defendant inside. The Defendant
told Mr. Barnett that the victim was holding a gun when she answered the door. The
Defendant asked for a glass of water and sat down in the living room. Eventually, the victim
put her gun down on a table. The Defendant told Mr. Barnett that he picked up the gun, and
made the victim go into her bedroom and lie down on the bed. The Defendant stated that he
put a pillow over the victim’s head and shot her twice in the head.

        Sgt. Hutchinson testified that he heard most of what the Defendant said to Mr. Barnett
and corroborated Mr. Barnett’s recollection of the Defendant’s statements. Sgt. Hutchinson
also testified that the Defendant said, “I probably f--ked up, didn’t I” after he told Mr.
Barnett that he shot the victim. All of the officers involved in the Defendant’s arrest who
testified at trial stated that they did not tell the Defendant why he was being arrested and did
not hear anyone else tell the Defendant he had been arrested for a homicide. Mr. Campbell

                                              -4-
testified that he repeatedly asked the officers why he was being detained, but none of the
officers responded to his questions. However, Mr. Campbell testified that he could not hear
what the officers said to the Defendant. Later that night, samples were taken from the
Defendant’s hands to test for gun shot residue, and the Defendant gave the police his clothes
for forensic testing. The next day, the Defendant told Mr. Barnett that he did not know why
he killed the victim because she was the only person that was ever nice to him.

       A Smith & Wesson .32 long caliber revolver was recovered under the driver’s seat of
the victim’s car after the Defendant’s arrest. Constable Jerry Deal testified that the gun
recovered from the victim’s car belonged to the victim and that she kept it in her nightstand
for protection. Shelly Betts, a forensic scientist with the Tennessee Bureau of Investigation
(TBI) and an expert in tool mark and firearms identification, testified that .32 caliber guns
were relatively uncommon and “not a very popular revolver.” When the revolver was
recovered, it had four unfired Winchester .32 caliber cartridges in the cylinder and two empty
chambers. Ms. Betts testified that the recovered cartridges contained “copper coated brown
nose lead bullets.” Police recovered a fired bullet underneath the victim’s body when it was
moved from the bed. A second fired bullet was found during the victim’s autopsy in the
sheet her body had been wrapped in.

        Ms. Betts testified that the pillow found above the victim’s head had two bullet holes
in it. Ms. Betts opined that both shots were “contact or near contact gunshots.” Ms. Betts
also testified that the fired bullets were .32 caliber, “copper coated lead with a round nose.”
Ms. Betts opined that the fired bullets were “the same type and design” as the bullets found
in the unfired cartridges found in the revolver. Ms. Betts also opined that the fired bullets
were “consistent with being manufactured by Winchester,” like the unfired cartridges. The
fired bullets were too badly damaged for Ms. Betts to make a conclusive determination as
to whether they had been fired from the victim’s gun. However, there were no dissimilarities
between the bullets recovered at the crime scene and bullets test-fired from the gun. Ms.
Betts testified that both of the fired bullets had the same “class characteristics” and one bullet
had “similar individual characteristics” with the test-fired bullets.

        Ms. Betts also testified about the cut to the victim’s phone line and the pry marks on
the victim’s screen door. Ms. Betts opined that the cut to the phone line had been made with
a single-blade cutting tool like a knife or a box cutter. Ms. Betts testified that there were pry
marks both below and above the handle to the screen door. Ms. Betts opined that the pry
marks on the door were made by “a prying type tool” like the crowbar found in the victim’s
carport. Ms. Betts also opined that the marks were the same size as the crowbar, but she
testified that “there were not individual characteristics to link the crowbar to the tool marks
on the door.” TBI agents searched the victim’s house for fingerprints but were unable to find
any identifiable prints in this case.

                                               -5-
       Laura Hodge, a TBI forensic scientist and expert in gunshot residue, testified that the
samples taken from the Defendant’s hands were inconclusive for gunshot residue. Ms.
Hodge explained that to determine if gunshot residue was present she looked for three
specific chemical elements in specific quantities. Ms. Hodge testified that all three of the
elements were present in the samples from the Defendant’s hands, especially his left palm,
but not in sufficient quantities to say the Defendant tested positive for gunshot residue. Ms.
Hodge further testified that gunshot residue was “very fragile” and could easily be destroyed
by wiping or washing the affected area. No gunshot residue was found on the Defendant’s
clothing. However, three bloodstains were found on the Defendant’s jeans. Two of the
stains were a “complete” match with the victim’s DNA and the third stain was a partial
match.

       Doctor Adele Lewis, an expert in forensic pathology, testified that she performed an
autopsy on the victim’s body. Dr. Lewis determined that the cause of the victim’s death was
two gunshot wounds to the right side of the victim’s face. One bullet exited the victim’s
skull on the left side of her head and the other through her left ear. The victim had a skin tear
and bruising on her left arm as well as bruising on her right arm. There was also some
bruising on the victim’s legs. Dr. Lewis opined that these injuries could have occurred near
the time of the victim’s death. Dr. Lewis also opined that the injures were consistent with
someone forcefully grabbing the victim. Dr. Lewis noted that the victim had no underwear
on when her body was found. There was a tear on the victim’s vagina and bruising nearby,
which Dr. Lewis opined indicated direct trauma to the area. A rape kit was prepared and sent
to the TBI for examination. However, there was no sperm found on the swabs submitted
with the rape kit.

        David Brundage testified on behalf of the Defendant as an expert in tool mark and
firearms identification. Mr. Brundage opined that the pry marks on the screen door were
made by a rounded tool and were inconsistent with the crowbar found in the victim’s carport.
Mr. Brundage also opined that he “could not positively identify nor eliminate” the fired
bullets recovered from the victim’s bed as having been fired from the gun found under the
driver’s seat of the victim’s car.

      Based upon the foregoing evidence, the jury convicted the Defendant of first degree
premeditated murder, two counts of first degree felony murder, theft of property valued at
$1,000 or more but less than $10,000, and aggravated burglary. The jury acquitted the
Defendant of the charge of aggravated rape and the related count of first degree felony
murder.




                                               -6-
                                      II. Penalty Phase

        The State introduced into evidence the victim’s death certificate to establish that she
was born in 1915 and ninty-years-old at the time of her death. The victim’s niece read a
prepared victim’s impact statement to the jury. The Defendant presented testimony from a
clinical neuropsychologist and a psychiatrist. These witnesses testified that the Defendant
had a below average IQ; had been abused by his mother, grandmother, and uncles as a child;
had been repeatedly placed into foster care; and had suffered a catastrophic head injury when
he was seventeen. They also testified that the Defendant had abused alcohol since he was
nine and claimed to have been intoxicated on alcohol and cocaine when he killed the victim.
These witnesses opined that the Defendant had suffered a personality change due to his head
injury and had become more aggressive and disinhibited since the injury. The State
presented a psychiatrist and a clinical psychologist as rebuttal witnesses. The State’s
witnesses opined that the Defendant had impulse control problems before his accident and
that his behavior was the same before and after the accident. The jury ultimately sentenced
the Defendant to life without the possibility of parole.

                                         ANALYSIS

                                    I. Suppression Motion

        The Defendant contends that the trial court erred by denying his motion to suppress
his statements to the police. The Defendant argues that on the night of his arrest he was
interrogated by former detective Jimmy Barnett without having been properly informed of
his Miranda rights. The Defendant also argues that he was interrogated by Mr. Barnett the
day after his arrest without having waived his Sixth Amendment right to counsel. The
Defendant further argues that the police illegally seized his clothing and took samples for a
gunshot residue test because they asked for his consent after he invoked his right against self-
incrimination. The State responds that the Defendant’s statements on the night of his arrest
were voluntary, were not the product of interrogation, and, furthermore, that Mr. Barnett
informed the Defendant of his Miranda rights prior to his confession. The State also
responds that the Defendant knowingly and intelligently waived his Sixth Amendment right
to counsel when the Defendant spoke to Mr. Barnett the day after his arrest. The State
further responds that the Defendant’s arguments regarding the seizure of his clothing and
gunshot residue samples are without merit.

       At a pre-trial suppression hearing, Mr. Barnett testified that on the night of the
Defendant’s arrest, he could hear the Defendant “hollering, wanting to talk” from an HCSD
cruiser. Mr. Barnett testified that Sgt. Hutchinson called him over to the cruiser and said that
the Defendant was “wanting to talk to” Mr. Barnett. According to Mr. Barnett, he opened

                                              -7-
the door to the cruiser and the Defendant repeatedly said, “You know what this is all about.”
Mr. Barnett told the Defendant that he wanted to wait until they got back to the police station
to talk to the Defendant about his arrest. Mr. Barnett testified that the Defendant continued
to say, “You know what this is all about.” Mr. Barnett finally asked the Defendant what it
was all about, and the Defendant responded, “Homicide.”

        Mr. Barnett testified that once the Defendant said “homicide,” he advised the
Defendant of his Miranda rights. According to Mr. Barnett, he recited the Miranda warnings
to the Defendant from memory. Mr. Barnett also testified that he had previously advised the
Defendant of his Miranda rights on “at least ten or fifteen” different occasions prior to the
Defendant’s arrest on April 6, 2006. Mr. Barnett asked the Defendant if he understood his
rights, and the Defendant responded that he understood his “f--king rights.” Mr. Barnett
testified that the Defendant then confessed to killing the victim. Mr. Barnett also testified
that he did not ask the Defendant any questions and that the Defendant “just continued to
talk.” Sgt. Hutchinson testified that he overheard Mr. Barnett advise the Defendant of his
Miranda rights and portions of the Defendant’s confession.

        Once the Defendant finished his confession, Mr. Barnett asked the Defendant if he
would give a recorded statement at the police station. Mr. Barnett testified that the
Defendant agreed to give another statement at the police station. According to Mr. Barnett,
once the Defendant had been transported to the police station he consented to give TBI Agent
Mike Cox his clothes and to have a gunshot residue test performed on his hands. Mr. Barnett
testified that after those items had been collected, the Defendant “commenced to cussing”
and became “very upset.” The Defendant then refused to speak with Mr. Barnett and stated
that he would not tell the police officers anything else. Mr. Barnett testified that he made no
further attempt to question the Defendant.

        The next day the Defendant was arraigned and appointed an attorney to represent him.
After the arraignment, Mr. Barnett was told that the Defendant “was worrying the jailers to
death wanting to talk to [him].” Mr. Barnett testified that he went to the jail and told the
Defendant that he could not talk to him because he had been appointed an attorney.
According to Mr. Barnett, the Defendant told him he “just want[ed] to talk” and that the
police already had the victim’s car and that his fingerprints would be on the gun. Mr. Barnett
testified that he again advised the Defendant of his Miranda rights and that he did not have
to speak with Mr. Barnett without his attorney present. The Defendant “cussed again” and
said that he did not need an attorney. The Defendant then told Mr. Barnett that he did not
know why he killed the victim. Mr. Barnett testified that he did not ask the Defendant any
questions while he was at the jail.




                                              -8-
       Based upon the foregoing evidence, the trial court denied the Defendant’s suppression
motion. The trial court concluded that the Defendant’s confession on the night of his arrest
was voluntary and not the product of police interrogation. The trial court further concluded
that even if Mr. Barnett’s actions amount to an interrogation, the Defendant had been
properly advised of his Miranda rights and waived those rights prior to his confession. With
respect to the Defendant’s saying he did not know why he killed the victim, the trial court
concluded that the Defendant initiated the contact with Mr. Barnett and that Mr. Barnett’s
actions did not violate the Defendant’s Sixth Amendment right to counsel. The Defendant’s
statements to Mr. Barnett on the night of his arrest and his statement that he did not know
why he killed the victim were admitted at trial. The test results from the gunshot residue test
on the Defendant’s hands and the forensic examination of the Defendant’s clothing were also
admitted at trial.

                                   A. Standard of Review

        On appellate review of suppression issues, the prevailing party “is entitled to the
strongest legitimate view of the evidence adduced at the suppression hearing as well as all
reasonable and legitimate inferences that may be drawn from that evidence.” State v. Talley,
307 S.W.3d 723, 729 (Tenn. 2010) (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn.
1996)). Questions about “the assessment of witness credibility, the weight and value of
evidence, and the resolution of evidentiary conflicts are entrusted to the trial court” as the
trier of fact. State v. Meeks, 262 S.W.3d 710, 722 (Tenn. 2008). When the trial court
“makes findings of fact in the course of ruling upon a motion to suppress, those findings are
binding on appeal unless the evidence in the record preponderates against them.” Id.
Additionally, a trial court’s conclusions of law along with its application of the law to the
facts are reviewed de novo without any presumption of correctness. Id.

                   B. Statements on the Night of the Defendant’s Arrest

        A defendant’s statements “made during the course of custodial police interrogation
are inadmissible as evidence in a criminal case unless the State establishes that the defendant
was advised of certain constitutional rights and waived those rights.” State v. Anderson, 937
S.W.2d 851, 853 (Tenn. 1996) (citing Miranda v. Arizona, 384 U.S. 436, 444 (1966)). The
Miranda decision mandates that police inform a person being questioned of the following
rights prior to a custodial interrogation:

       [T]hat (a) he has the right to remain silent; (b) any statement made may be
       used against him; (c) he has the right to the presence of an attorney; and (d) if




                                              -9-
       he cannot afford an attorney, one will be appointed for him prior to
       questioning, if he so desires.

Id.

        “An officer is not required to give a verbatim recitation of the Miranda warnings to
avoid the pollution of voluntary statements made by an accused during questioning.” State
v. Chambless, 682 S.W.2d 227, 232 (Tenn. Crim. App. 1984) (citing California v. Prysock,
435 U.S. 355 (1981)). Miranda warnings must be provided “to an accused when the accused
is in custody and is subjected to interrogation or its functional equivalent.” State v. Sawyer,
156 S.W.3d 531, 534 (Tenn. 2005) (citing Rhode Island v. Innis, 446 U.S. 291, 298 (1980)).
However, “where a defendant makes a statement without being questioned or pressured by
a government agent, the statement is admissible, if the statement was freely and voluntarily
made by the defendant.” State v. Land, 34 S.W.3d 516, 525 (Tenn. Crim. App. 2000); see
also Miranda, 384 U.S. at 478 (holding that “[v]olunteered statements of any kind are not
barred by the Fifth Amendment and their admissibility is not affected by our holding today”).

        Here, the Defendant made a “commotion” until Sgt. Hutchinson approached him. The
Defendant told Sgt. Hutchinson that he knew “what this [was] all about . . . [h]omicide.” At
that point, Sgt. Hutchinson got Mr. Barnett. Mr. Barnett testified that he told the Defendant
that he wanted to wait and take his statement at the police station. However, the Defendant
repeatedly stated, “You know what this is all about,” until Mr. Barnett finally responded by
asking him what it was about. The Defendant repeated his statement that “this [was] all
about . . . homicide.” The Defendant’s statements to Mr. Barnett and Sgt. Hutchinson that
he knew “what this [was] all about . . . [h]omicide” were voluntary and not the product of
interrogation or its functional equivalent.

        Mr. Barnett then stopped the Defendant and informed him of his Miranda rights. Sgt.
Hutchinson testified that he overheard Mr. Barnett provide the Miranda warnings to the
Defendant. Additionally, Mr. Barnett testified that he had previously advised the Defendant
of his Miranda rights ten or fifteen times. The Defendant told Mr. Barnett that he understood
his “f--king rights” and proceeded to confess to the victim’s murder. There is no evidence
that the Miranda warnings Mr. Barnett provided to the Defendant that night were deficient.
Having been properly advised of his Miranda rights, the Defendant then waived those rights
and confessed to killing the victim. Accordingly, we conclude that the trial court did not err
in denying the Defendant’s motion to suppress with respect to his statements made on the
night of his arrest.




                                             -10-
                           C. Statements Made After Arraignment

        The Sixth Amendment provides that the accused in a criminal prosecution “shall
enjoy” the right to the assistance of counsel. This right attaches at the time the State initiates
adversarial judicial proceedings against a defendant. State v. Rollins, 188 S.W.3d 553, 565-
66 (Tenn. 2006). Once the right has attached, a defendant “has [the] right to legal
representation when the government interrogates him.” Brewer v. Williams, 430 U.S. 387,
401 (1977). However, the Defendant may waive this right so long as the waiver is made
knowingly and intelligently. Patterson v. Illinois, 487 U.S. 285, 291 (1988). “So long as the
accused is made aware of the ‘dangers and disadvantages of self-representation’ during post-
indictment questioning, by use of the Miranda warnings, his wavier of his Sixth Amendment
right to counsel at such questioning is ‘knowing and intelligent.’” Id. at 300. Furthermore,
as previously stated, “where a defendant makes a statement without being questioned or
pressured by a government agent, the statement is admissible, if the statement was freely and
voluntarily made by the defendant.” Land, 34 S.W.3d at 525.

       After counsel was appointed for the Defendant, he repeatedly requested to speak with
Mr. Barnett to the point that he “was worrying the jailers to death wanting to talk to [Mr.
Barnett].” Once at the jail, Mr. Barnett warned the Defendant that he should not speak to
him without his attorney present and advised the Defendant of his Miranda rights again. The
Defendant stated that he did not need an attorney because he “just want[ed] to talk.” The
evidence clearly demonstrates that the Defendant initiated the contact with Mr. Barnett, that
he was aware of the “dangers and disadvantages” of speaking to Mr. Barnett alone, and that
he knowingly and intelligently waived his right to speak with Mr. Barnett with counsel
present. Accordingly, we conclude that the trial court did not err in denying the Defendant’s
suppression motion with respect to his statements made after his arraignment.

               D. Consent to Provide Clothes and Gunshot Residue Samples

         The Defendant contends that the police officers could not ask for his consent to
provide samples from his hands for a gunshot residue test and to provide his clothing because
he had invoked his right against self-incrimination and refused to speak with the police.
However, the Defendant failed to include this issue in his suppression motion or object at
trial to the admission of the test results from the gunshot residue test on his hands and the
forensic examination of his clothing. Instead, the Defendant first raised this issue in his
motion for a new trial. A motion to suppress evidence must be filed prior to trial. Tenn. R.
Crim. P. 12(b)(2)(C). Failure to do so results in a waiver of the issue. Tenn. R. Crim. P.
12(f)(1); State v. Burtis, 664 S.W.2d 305, 310 (Tenn. Crim. App. 1983). As such, the
Defendant has waived this issue.



                                              -11-
                                II. Police Personnel Records

        The Defendant contends that the trial court erred by not allowing his counsel to review
the personnel file of a former police detective. Prior to trial, Mr. Barnett was terminated
from his position as a detective with the HCSD. The Defendant subsequently filed a motion
requesting that the State produce Mr. Barnett’s personnel file as possible impeachment
evidence. The file was submitted to the trial court for in camera review, and the trial court
determined that the file contained no exculpatory or impeachment evidence relevant to this
case. On appeal, the Defendant argues that his defense counsel should have been allowed
to inspect the file rather than relying on the judgment of the trial court. The State responds
that the trial court followed the proper procedure and did not err by refusing the Defendant’s
request to have the file inspected by his counsel.

       In order to ensure a defendant’s constitutional right to a fair trial, the State must
provide the defendant with exculpatory evidence that is either material to guilt or relevant
to punishment. State v. Ferguson, 2 S.W.3d 912, 915 (Tenn. 1999). This also includes
evidence which could be used to impeach the State’s witnesses. Johnson v. State, 38 S.W.3d
52, 56 (Tenn. 2001). However, “a defendant’s right to discover exculpatory evidence does
not include the unsupervised authority to search through the [State’s] files.” Pennsylvania
v. Ritchie, 480 U.S. 39, 59 (1987). Contrary to the Defendant’s argument in this appeal,
“[d]efense counsel has no constitutional right to conduct his own search of the State’s files
to argue relevance.” Id.

       This court, after reviewing the applicable sections of the Tennessee Rules of Criminal
Procedure, prior Tennessee case law, and case law from other jurisdictions, has adopted the
following rule:

       Criminal defendants may not routinely have access to police personnel records,
       but upon a strong showing that the personnel records might contain
       information material to a defendant’s case, the trial court should conduct an in
       camera inspection of the records and release to [the] defendant those items the
       court deems material to the defense.

State v. Butts, 640 S.W.2d 37, 39 (Tenn. Crim. App. 1982) (emphasis added). The trial court
properly followed this procedure as laid out in the Butts opinion. We are not inclined to alter
this long standing rule to now provide defendants with unfettered access to police personnel
records.

       Furthermore, the Defendant failed to request that Mr. Barnett’s file be placed under
seal and preserved for our review. As such, the Defendant has waived review by this court

                                             -12-
as to whether the file contained any relevant information. See State v. Bryan Herman
Dowdy, No. W2000-01011-CCA-R3-CD, 2001 WL 91732, at *8 (Tenn. Crim. App. Jan. 26,
2001). Accordingly, we conclude that the trial court did not err by denying the Defendant’s
request to have his counsel inspect Mr. Barnett’s personnel file.

                                     III. In-Court Security

       The Defendant contends that the in-court security around him was excessive and gave
the jury the impression that he was in custody. The Defendant argues that the trial court
erred in denying his motion for a mistrial after several jurors allegedly saw the Defendant
being transported from the courtroom to the local jail. The Defendant further argues that the
number of bailiffs in the courtroom was excessive and that they “congregated” around the
Defendant during the trial. The State responds that the Defendant failed to establish a
manifest necessity warranting a mistrial. The State further responds that the security around
the Defendant was not excessive and that the trial court took curative measures each time the
Defendant complained about the security in the courtroom.

        During a break in the trial, the Defendant requested a mistrial because three jurors saw
the Defendant as he was being transported back to the jail for lunch. Defense counsel stated
that the Defendant had not been handcuffed but that “it was obvious that he was being taken
back to the jail.” Defense counsel stated that the bailiff had stopped to smoke a cigarette
which allowed the jurors to see the Defendant. The trial court denied the Defendant’s
motion, and defense counsel declined to argue the matter further or have any evidence about
the incident placed on the record.

        In addition to this, during voir dire, defense counsel complained to the trial court that
it had become “a bit of a procession in and out of the courtroom following” the Defendant.
The trial court responded by ordering that only one bailiff stay in the courtroom during the
proceedings. Later in the trial, defense counsel complained that the bailiff was sitting behind
the Defendant. The trial court stated that there was no need for the bailiff to sit directly
behind the Defendant and requested that he sit in the back of the courtroom for the remainder
of the trial. At no point did the Defendant request a mistrial based upon his complaints
concerning the in-court security.

        The determination of whether to grant a mistrial lies within the sound discretion of the
trial court and should be granted “only in the event of a ‘manifest necessity’ that requires
such action.” State v. Hall, 976 S.W.2d 121, 147 (Tenn. 1998) (appendix). The burden of
establishing a “manifest necessity” lies with the party seeking the mistrial. State v. Williams,
929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). “The purpose for declaring a mistrial is to
correct damage done to the judicial process when some event has occurred which precludes

                                              -13-
an impartial verdict.” Id. A trial court’s decision regarding whether to grant a mistrial will
only be overturned upon a showing of an abuse of discretion. Id. Failure to request a
mistrial waives any further action by the trial court. Hall, 976 S.W.2d at 157.

       This court has previously held that incidental sightings of defendants being
transported from the courthouse in handcuffs and prison clothes are not prejudicial. State v.
Baker, 751 S.W.2d 154, 164 (Tenn. Crim. App. 1987). In doing so, this court stated as
follows:

       Common sense must prevail in such instances where a jury or jurors
       inadvertently see a defendant dressed in prison clothing. Reason dictates that
       they must know a person on trial is either on bail or in confinement during the
       course of trial. The evidence of the guilt of all the defendants in this case was
       strong. There is no indication that any of them were prejudiced by the
       occurrence complained of.

Id. Here, the Defendant offered no proof to support his allegations and admitted that he was
not handcuffed at the time the jurors allegedly saw him. As such, the Defendant failed to
establish that a manifest necessity required a mistrial. Furthermore, as we will discuss more
fully below, the evidence of the Defendant’s guilty was overwhelming. Therefore, the
Defendant has failed to establish that he was prejudiced by the alleged sighting.
Accordingly, we conclude that the trial court did not abuse its discretion in denying the
Defendant’s motion for a mistrial.

        With respect to the Defendant’s claims that the in-court security was excessive, we
note that the Defendant did not request a mistrial or that a curative instruction be given to the
jury in response to his complaints. As such, the Defendant waived any further action by the
trial court on this issue. Furthermore, we do not believe that the trial court erred by failing
to sua sponte declare a mistrial as a result of the Defendant’s complaints. The trial court
responded to each of the Defendant’s complaints and limited the security in the courtroom
to one bailiff who was eventually instructed to sit in the back of the courtroom. We will not
overturn a trial court’s decision regarding how to implement courtroom security unless there
has been “some abuse of the trial court’s discretion in marshaling the trial.” State v.
Franklin, 714 S.W.2d 252, 258 (Tenn. 1986). We cannot conclude that the trial court’s
actions constituted such an abuse of discretion nor that the use of one uniformed bailiff who
was eventually moved to the back of the courtroom branded the Defendant in the eyes of the
jury “with an unmistakable mark of guilt.” Holbrook v. Flynn, 475 U.S. 560, 571 (1986).
Accordingly, we conclude that this issue is without merit.




                                              -14-
                              IV. Sufficiency of the Evidence

       The Defendant contends that the evidence was insufficient to sustain his convictions.
However, the Defendant has made no argument as to why the evidence was insufficient to
sustain his convictions. “Issues which are not supported by argument . . . will be treated as
waived in this court.” Tenn. Ct. Cr. App. R. 10(b). Waiver not withstanding, we will briefly
address the sufficiency of the convicting evidence.

        An appellate court’s standard of review when the defendant questions the sufficiency
of the evidence on appeal is “whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). This
court does not reweigh the evidence; rather, it presumes that the jury has resolved all
conflicts in the testimony and drawn all reasonable inferences from the evidence in favor of
the state. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in
testimony, and the weight and value to be given to evidence were resolved by the jury. See
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

       A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury’s verdict.” Bland, 958 S.W.2d at 659; State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). A guilty verdict “may not be based solely upon
conjecture, guess, speculation, or a mere possibility.” State v. Cooper, 736 S.W.2d 125, 129
(Tenn. Crim. App. 1987). However, “[t]here is no requirement that the State’s proof be
uncontroverted or perfect.” State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). Put
another way, the State is not burdened with “an affirmative duty to rule out every hypothesis
except that of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 326.

       The following standard “applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of [both] direct and circumstantial evidence.”
State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). Our supreme court
has held that circumstantial evidence is as probative as direct evidence. Dorantes, 331
S.W.3d at 379-81. In doing so, the supreme court rejected the previous standard which
“required the State to prove facts and circumstances so strong and cogent as to exclude every
other reasonable hypothesis save the guilt of the defendant, and that beyond a reasonable
doubt.” Id. at 380 (quoting Crawford, 470 S.W.2d at 612) (quotation marks omitted).

      Instead, “direct and circumstantial evidence should be treated the same when
weighing the sufficiency of such evidence.” Dorantes, 331 S.W.3d at 381. The reason for

                                            -15-
this is because with both direct and circumstantial evidence, “a jury is asked to weigh the
chances that the evidence correctly points to guilt against the possibility of inaccuracy or
ambiguous inference . . . [and] [i]f the jury is convinced beyond a reasonable doubt, we can
require no more.” Id. at 380 (quoting Holland v. United States, 348 U.S. 121, 140 (1954)).
To that end, the duty of this court “on appeal of a conviction is not to contemplate all
plausible inferences in the [d]efendant’s favor, but to draw all reasonable inferences from the
evidence in favor of the State.” State v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).

        Here, the evidence of the Defendant’s guilt was overwhelming for all of his
convictions. The victim was found lying on her bed, dead from two gunshots to the right side
of her head. A bloodied pillow with two bullet holes was found above the victim’s head.
The phone line to the victim’s house had been cut, there were pry marks on her screen door,
and her car was missing when police found her body. Prior to the discovery of the victim’s
body, the Defendant was repeatedly seen driving the victim’s car, and he gave his ex-
girlfriend a ring that belonged to the victim. Later the Defendant was arrested while driving
the victim’s car, and a .32 caliber revolver that had belonged to the victim was found under
the driver’s seat. After his arrest, the Defendant confessed to entering the victim’s home
under the false pretext of using her phone, taking her gun away from her, and killing her.

        The victim’s gun had four unfired cartridges and two empty chambers when it was
recovered. Forensic testing revealed that the bullets recovered from the crime scene were
consistent with being the same type as the unfired cartridges found in the gun. The recovered
bullets also had the same class characteristics as bullets test-fired from the victim’s gun. The
Defendant’s pants had three blood stains, two of which were a complete match for the
victim’s DNA. Testimony from the victim’s niece established that the items taken from the
victim were valued at more than $1,000. Accordingly, we conclude that the evidence was
more than sufficient to sustain the Defendant’s convictions for first degree premeditated
murder, two counts of first degree felony murder, aggravated burglary, and theft of property
valued at $1,000 or more but less than $10,000.

                 V. Merger of Aggravated Burglary and Theft Convictions

        The Defendant contends that the trial court erred by not merging his conviction for
aggravated burglary and theft of property valued at $1,000 or more but less than $10,000.
The Defendant argues that the facts giving rise to his theft conviction arose from the same
facts leading to his aggravated burglary conviction and that theft was a lesser-included
offense of aggravated burglary. The State responds that theft is not a lesser-included offense
of aggravated burglary and that the General Assembly intended for theft and aggravated
burglary to be punished separately.



                                              -16-
       Both the United States and Tennessee Constitutions prohibit multiple punishments for
the same offense. State v. Thompson, 285 S.W3d 840, 846-47 (Tenn. 2009). A trial court’s
determination whether “multiple convictions violate double jeopardy is a mixed question of
law and fact, which we review de novo without any presumption of correctness.” State v.
Watkins, 362 S.W.3d 530, 539 (Tenn. 2012) (citing Thompson, 285 S.W.3d at 846)). Our
supreme court recently adopted the test found in Blockburger v. United States, 284 U.S. 299
(1932), for use in determining whether convictions for offenses under two different statutes
constitute the same offense for double jeopardy purposes. Id. at 556.

       The Blockburger test provides that “where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to determine whether there
are two offenses or only one, is whether each provision requires proof of a fact which the
other does not.” 284 U.S. at 304. The central analysis of the Blockburger test “requires an
examination of the statutory elements [of the offenses] in the abstract, without regard to the
proof offered at trial in support of the offenses.” Watkins 362 S.W.3d at 544. “If each
offense includes an element that the other offense does not, the Blockburger test is satisfied,
notwithstanding a substantial overlap in the proof offered to establish the crimes.” Id.
(quoting Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975)) (internal quotation marks
omitted).

       The first step in the Blockburger test is to determine the threshold question of
“whether the convictions arise from the same act or transaction.” Watkins, 362 S.W.3d at
556. “If the convictions do not arise from the same act or transaction, there cannot be a
violation of the double jeopardy protection against multiple punishment.” Id. In answering
this question, we refer “to the charging instrument and the relevant statutory provisions” and
“consider whether the charges arise from discrete acts or involve multiple victims.” Id.
Here, the offenses occurred against the same victim, at the same location, in close temporal
proximity, and as part of one continuing criminal transaction. Therefore, we move to the
next step of the Blockburger test.

       The second step of the Blockburger test requires us “to examine the statutory elements
of the offenses.” Watkins, 362 S.W.3d at 557. The following presumptions apply to our
examination of the statutory elements of the offenses:

       If the elements of the offenses are the same, or one offense is a lesser included
       of the other, then we will presume that multiple convictions are not intended
       by the General Assembly and that multiple convictions violate double
       jeopardy. However, if each offense includes an element that the other does
       not, the statutes do not define the “same offense” for double jeopardy



                                              -17-
       purposes, and we will presume that the Legislature intended to permit multiple
       punishments.

Id. (internal footnote omitted).

        Aggravated burglary occurs when a defendant enters into a habitation without the
effective consent of the owner with the intent to commit a felony, theft, or assault. Tenn.
Code Ann. §§ 39-14-401, -402, -403. Theft of property occurs when a defendant, “with
intent to deprive the owner of property, . . . knowingly obtains or exercises control over the
property without the owner’s effective consent.” Tenn. Code Ann. § 39-14-103(a). Contrary
to the Defendant’s argument, our supreme court has previously held that theft is not a lesser
included offense of aggravated burglary and that the two offenses are “codified in distinct
statutory provisions and are intended to protect different interests.” See State v. Davis, 613
S.W.2d 218, 221 (Tenn. 1981).

       Aggravated burglary is “an offense against the security interest in possession of
property rather than an offense against the legal title or ownership of the property” and is
completed when entry has been made into the habitation. State v. Ralph, 6 S.W.3d 251, 255
(Tenn. 1999). Theft, on the other hand, is “an offense against the legal title or ownership of
the property” and is not completed “until the defendant obtains or exercises control over the
property with the intent to deprive the owner of the property.” Id. “Consummation of the
intended felony, theft, or assault is not necessary to complete the crime of burglary.” Id. As
such, “after proving either of these offenses, different and additional facts and elements must
be shown to prove the other.” Davis, 613 S.W.2d at 221. Accordingly, we conclude that the
Defendant’s convictions for aggravated burglary and theft do not violate his constitutional
protections against double jeopardy.

                     VI. Victim’s Age as an Aggravating Circumstance

       The Defendant contends that the State’s use of the statutory aggravating circumstance
of the victim’s age was unconstitutional. The Defendant argues that he was arbitrarily
sentenced because use of the victim’s age as an aggravating circumstance required the jury
to ignore the mitigating evidence he presented and sentence him to life without the possibility
of parole. The State responds that the jury properly followed its instructions regarding the
imposition of the sentence and that use of a victim’s age as an aggravating factor in
sentencing is not constitutionally suspect.

       On appeal, we review a sentence of life without the possibility of parole for “any
errors assigned” and for “the appropriateness of the sentence.” Tenn. Code Ann. § 39-13-
207(g). Such a sentence “shall be considered appropriate if the [S]tate proved beyond a

                                             -18-
reasonable doubt at least one [] statutory aggravating circumstance . . . and the sentence was
not otherwise imposed arbitrarily, so as to constitute a gross abuse of the jury’s discretion.”
Id. Here, the State established beyond a reasonable doubt that the victim was seventy years
or older at the time of her death. See Tenn. Code Ann. § 39-13-204(i)(14). As such, we
examine whether the Defendant’s sentence was imposed arbitrarily, “so as to constitute a
gross abuse of the jury’s discretion.”

        When the State has established the existence of a statutory aggravating circumstance
beyond a reasonable doubt, “the jury shall, in its considered discretion, sentence the
defendant either to imprisonment for life without possibility of parole or to imprisonment for
life.” Tenn. Code Ann. § 39-13-207(c). A trial court is statutorily mandated to instruct a
jury “that, in imposing sentence, it shall weigh and consider the statutory aggravating
circumstance or circumstances proven by the [S]tate beyond a reasonable doubt and any
mitigating circumstance or circumstances.” Tenn. Code Ann. § 39-13-207(d). The jury in
this case was so instructed, and jurors are presumed to follow the trial court’s instructions.
See State v. Robinson, 146 S.W.3d 469, 494 (Tenn. 2004). There is no evidence in the
record before us to support the Defendant’s argument that the jury sentenced him without
considering and weighing the mitigating evidence presented at the sentencing hearing.

        No Tennessee court has previously addressed the question of whether use of the
victim’s age as a statutory aggravating circumstance is constitutional. However, it has
previously been held that “there are no constitutional or statutory impediments” to the use
of the victim’s age as an aggravating circumstance when the victim’s age is an element of
the convicting offense. See State v. Hodges, 7 S.W.3d 609, 629 (Tenn. Crim. App. 1998).
Here, the age of the victim was not an element of the offense and the Defendant has cited to
no authority to support his contention that such a factor alone is arbitrary and constitutionally
suspect. We believe that a rational basis exists for the General Assembly’s determination
that the elderly are especially vulnerable and should be protected. It was not unconstitutional
for the legislature to conclude that murders against the elderly are more abhorrent than other
first-degree murders and should be punished more severely. Accordingly, we conclude that
this issue is without merit.

                       VII. Juror’s Relationship with the Court Clerk

        The Defendant contends that a new trial was warranted because one of the jurors
failed to disclose her relationship with the court clerk during voir dire. The Defendant argues
that the juror’s failure to disclose her relationship denied him the “fair opportunity to use his
peremptory challenge[s],” hampered defense counsel in the jury selection process, and
significantly impaired his right to a trial by a fair and impartial jury. The State responds that
the juror did not give any false or misleading answers during voir dire and that there was no

                                              -19-
evidence of any bias on the juror’s part. The State concludes that the Defendant has not
established any prejudice due to the juror’s failure to disclose her relationship with the court
clerk.

       During voir dire, defense counsel asked several times whether any of the potential
jurors were related “by blood or marriage” to either the Defendant or the victim. Defense
counsel also asked the potential jurors if any of them had been the victim of a violent crime
or had any “significant experience or interaction with law enforcement.” Several potential
jurors responded that they had family members involved in law enforcement. Defense
counsel then followed up by asking if “[a]nyone else [had] any significant experience with
law enforcement, or the District Attorney, or the judicial system?” Later, defense counsel
asked if anyone had any “close relatives or close friends who [were] involved in law
enforcement?” Juror Tammie Dotson did not respond affirmatively to any of these questions.

        After trial, defense counsel learned that Ms. Dotson was the sister-in-law of the court
clerk and that they were next-door neighbors. At the hearing on the Defendant’s motion for
new trial, Ms. Dotson testified that she did not voluntarily disclose her relationship with the
court clerk because she did not consider the court clerk to be involved with the trial
proceedings and did not think that their relationship had anything to do with her service as
a juror. Ms. Dotson further explained that she was never asked if she was related to anyone
in the clerk’s office. Ms. Dotson testified that she did not have any experience with law
enforcement or the judicial system beyond her jury service in this case.

        Ms. Dotson further testified that she did not feel that her relationship with the court
clerk constituted “significant involvement with the judicial system.” Ms. Dotson explained
that she believed that being personally involved in a trial or knowing a party in a case would
constitute a “significant involvement with the judicial system.” Ms. Dotson testified that she
had never seen or participated in a trial except for this case and that she did not know anyone
who had ever been a party in a trial. Ms. Dotson further testified that she did not have any
conversations with the court clerk about this case or her jury service. The court clerk
testified that she never discussed pending court matters with friends and family and that she
never told Ms. Dotson about the Defendant’s case or his criminal history. Based upon the
foregoing, the trial court denied the Defendant’s motion for a new trial on this issue.

         Both the United States and the Tennessee Constitutions guarantee a defendant’s right
to trial “by an impartial jury.” State v. Akins, 867 S.W.2d 350, 354 (Tenn. Crim. App. 1993).
Our state constitution guarantees every defendant a trial by a jury free from “disqualification
on account of some bias or partiality toward one side or the other of the litigation.” Id.
(quoting Toombs v. State, 270 S.W.2d 649, 650 (Tenn. 1954)). In protection of this right,
“[t]he essential function of voir dire is to allow for the impaneling of a fair and impartial jury

                                              -20-
through questions which permit the intelligent exercise of challenges by counsel.” Id. A
defendant may challenge a juror’s qualifications post-verdict when bias or prejudice is
actually shown to exist or can be presumed from the circumstance. Id. at 355 (quoting
Durham v. State, 188 S.W.2d 555, 559 (Tenn. 1945)). Likewise, a post-verdict challenge
may be lodged “when a juror conceals or misrepresents information tending to indicate a lack
of impartiality.” Id.

        The Defendant “bears the burden of providing a prima facie case of bias or partiality.”
Akins, 867 S.W.2d at 355. “When a juror willfully conceals (or fails to disclose) information
on voir dire which reflects on the juror’s lack of impartiality, a presumption of prejudice
arises.” Id. However, this presumption of bias “may be dispelled by an absence of actual
favor or partiality by the juror.” Carruthers v. State, 145 S.W.3d 85, 95 (Tenn. Crim. App.
2003). Furthermore, “[i]nsignificant nondisclosures will not give rise to a presumption of
prejudice.” Akins, 867 S.W.2d at 356 n.12. A defendant waives his right to object to a
juror’s failure to volunteer information that “could reasonably be interpreted as extraneous”
when he fails to ask “questions calculated to produce specific answers” regarding the
information. Clariday v. State, 552 S.W.2d 759, 771 (Tenn. Crim. App. 1976).

        This court has previously held that a juror’s relationship “to people connected with
law enforcement . . . does not give rise to an inherently prejudicial situation in and of itself.”
State v. Taylor, 669 S.W.2d 694, 699 (Tenn. Crim. App. 1983). A juror’s failure to volunteer
information concerning such a relationship “does not establish a prima facie case of bias or
partiality.” Id. at 700. We see no reason why this rule should not apply with equal force to
a juror’s relationship with court personnel. Therefore, Ms. Dotson’s failure to voluntarily
disclose her relationship to the court clerk alone did not give rise to a presumption of
prejudice. We must now examine whether Ms. Dotson answered any of defense counsel’s
questions falsely or withheld requested information during voir dire.

        We do not believe that defense counsel’s question whether any of the potential jurors
had “any significant experience with law enforcement, or the District Attorney, or the judicial
system” was calculated to produce specific answers about Ms. Dotson’s relationship with the
court clerk. Ms. Dotson testified at the motion for new trial hearing that she believed
“significant experience” with the judicial system meant having been involved in a trial or
knowing someone who was a party to a trial. Ms. Dotson further testified that she had no
personal experience with law enforcement or the judicial system beyond her service as a juror
in this case. We believe that this is the most reasonable interpretation of defense counsel’s
question and that Ms. Dotson did not willfully withhold requested information during voir
dire.




                                              -21-
        Furthermore, Ms. Dotson’s testimony at the motion for new trial hearing established
an absence of favor or partiality on her part. Ms. Dotson testified that she did not speak to
her sister-in-law about the case or her jury service. The court clerk testified that she did not
talk to her family or friends about pending court matters and that she never disclosed the
Defendant’s criminal history to Ms. Dotson. There is no evidence in the record to establish
that Ms. Dotson was biased against the Defendant or partial to the State due to her
relationship with the court clerk. As such, we conclude that this issue is without merit and
that the trial court did not err in denying the Defendant’s motion for a new trial on this issue.

                                    VIII. Cumulative Error

         The Defendant raises, for the first time in his reply brief, the contention that a new
trial is warranted due to cumulative error. However, the cumulative error doctrine applies
only to rare circumstances in which there have been “multiple errors committed in trial
proceedings, each of which in isolation constitutes mere harmless error, but when aggregated,
have a cumulative effect on the proceedings so great as to require reversal in order to
preserve a defendant’s right to a fair trial.” State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010).
Having discerned no error in this case, there can be no cumulative error. Accordingly, we
conclude that this issue is devoid of merit.

                                       CONCLUSION

        Upon consideration of the foregoing and the record as a whole, the judgments of the
trial court are affirmed.




                                                     _________________________________
                                                     D. KELLY THOMAS, JR., JUDGE




                                              -22-
