        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                November 19, 2013 Session

          STATE OF TENNESSEE v. BENJAMIN KEITH FOWLER

                   Appeal from the Criminal Court for Knox County
                   No. 95397    Jon Kerry Blackwood, Senior Judge




                  No. E2012-02627-CCA-R3-CD - Filed March 5, 2014


A Knox County Criminal Court jury convicted the defendant, Benjamin Keith Fowler, of six
counts of first degree felony murder, two counts of criminally negligent homicide, two counts
of especially aggravated burglary, one count of attempted aggravated robbery, and one count
of employing a firearm during the commission of a dangerous felony. The trial court merged
the homicide verdicts and imposed two convictions of first degree murder. The court also
merged the especially aggravated burglary verdicts and imposed a single conviction of that
offense. In this appeal, the defendant contends that prosecutorial misconduct and the
behavior of a State witness deprived him of the right to a fair trial, that the trial court erred
by admitting certain testimony, and that the trial court erred by prohibiting the admission of
certain evidence. Although we discern no error with regard to the issues presented by the
defendant, we observe plain error with regard to the defendant’s conviction of especially
aggravated burglary. Because dual convictions for first degree felony murder and especially
aggravated burglary in this case are prohibited by statute, the defendant’s conviction of
especially aggravated burglary is modified to a conviction of aggravated burglary and
remanded to the trial court for resentencing. The judgments of the trial court are affirmed
in all other respects.

 Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed in Part; Reversed
                            and Remanded in Part

J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which J ERRY L. S MITH
and D. K ELLY T HOMAS, J R., JJ., joined.

Mike Whalen, Knoxville, Tennessee, for the appellant, Benjamin Keith Fowler.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Kevin Allen, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

              The defendant’s convictions in this case stem from his role in the July 24, 2010
invasion of the home of Layron Doyal. Mr. Doyal’s fianceé, Judy Adams, and his son,
Robert Doyal, were killed during the invasion, as was the defendant’s compatriot, Ronald
Carter.

                At trial, Layron Doyal, a Vietnam War veteran, testified that he became “totally
disabled” in 2004, bringing an end to his decades-long career in law enforcement. He said
that as a result of lingering issues related to an injury he received during the Tet Offensive
and the injuries he received in a 1977 car accident, he had undergone six orthopedic
surgeries. In addition, he had undergone two ablation procedures and received three stints
to treat the clogging of his arteries. He said that he suffered from chronic obstructive
pulmonary disease, diabetes, cardiac artery disease, acid reflux, pancreatitis, carpal tunnel
syndrome, and neuropathy. Mr. Doyal said that, as a result of his various ailments, he
suffered from a great deal of pain on a daily basis and that he was prescribed pain medication
to treat that pain.

               Mr. Doyal testified that Ms. Adams, who had lived with him for five years, also
suffered from serious health issues, including back injuries and “breathing problems” that
prevented her from sleeping in a bed and significantly reduced the amount of help she could
contribute to household upkeep. He said that his son, Robert Doyal, also suffered from poor
health attributable to a serious car accident that almost cost the younger Mr. Doyal his life.
Both Ms. Adams and Robert Doyal also took prescribed pain medication. According to Mr.
Doyal, as a result of the family members’ significant health issues, he decided to take the
defendant on as a tenant. He said that he agreed to let the defendant and his girlfriend live
in the finished basement of Mr. Doyal’s South Knoxville residence in exchange for the
defendant’s agreeing to perform “a minimum of 20 hours a week” of work around the house
and to contribute “$200 a month in grocery items.”

             Mr. Doyal testified that the defendant lived in the basement for only 11 days
before moving out and that they did not part on friendly terms. He said that while the
defendant lived in the house, he inquired about purchasing some of Mr. Doyal’s pain
medication, and Mr. Doyal responded, “Sure. Bend over. I’ll shove it right up your you
know what.” Mr. Doyal testified that by the time the defendant moved out, Robert Doyal
“hated him worse than [did Ms. Adams] or [Mr. Doyal] put together.” He said that after the
defendant moved out, he did not see the defendant again until the preliminary hearing in this
case.

                                              -2-
                Mr. Doyal recalled that on July 23, 2010, he went into his room “just to rest for
a few minutes about 10:30” p.m. and that he “dosed off.” Ms. Adams “was in her recliner
in the living room,” and Robert Doyal was in his own bedroom. Mr. Doyal said that he was
awakened after midnight by “the loudest sound . . . since Vietnam.” He said that he
recognized the sound instantly as two shotgun blasts and immediately armed himself with the
loaded pistol that he kept on the night stand. Thinking that someone “had blasted their way
into the house,” Mr. Doyal walked to his bedroom door, stuck his hand out into the hallway,
and “fired five or six random shots, because, [he] . . . could hear somebody coming . . . real
heavy.” After firing the shots, Mr. Doyal “heard the thump, and then looked out and saw
[the] complete body” of the perpetrator. The perpetrator “let off a shot” that “blew the entire
door frame” of a louvered closet door “all to pieces.” The man then began “trying to kick
his way” into Ms. Adams’ sewing room, where the family computer was located.

              The man eventually succeeded in getting into the room and closing the door.
Mr. Doyal followed and fired “five or six shots through that door toward the ground” before
opening the door. Inside the room, he saw the man crawling away from the door with his
mask pulled up, revealing his face. Mr. Doyal said that the “old cop” in him prompted him
to ask the man, “‘Who sent you?’”. The man smiled at him and said, “‘I’m a friend of
Benji’s.’” Mr. Doyal said that the name Benji “didn’t even ring a bell to” him because he
had called the defendant “‘Ben’” and had not known him to use the nickname Benji.

                Mr. Doyal recalled that the perpetrator was blocking his access to the
telephone, so Mr. Doyal “put a round right in his head” so that he could get to the telephone
and call 9-1-1. After picking up the telephone, Mr. Doyal walked into the living room, where
he saw Ms. Adams “sitting indian style directly in front of her recliner . . . already gone,
dead.” Robert Doyal lay near the entertainment center, alive but bleeding copiously. Mr.
Doyal recalled that Robert Doyal tried to speak, but Mr. Doyal told him to “hang on” while
he looked for other perpetrators. Mr. Doyal said that he never saw any other perpetrator
inside the house. He then “stepped through the storm door,” which “had already been shot
out and went out in the yard looking around.” The only person he saw outside was his
neighbor Mark, whom he asked to telephone 9-1-1. Mr. Doyal said that when he returned
to the living room, Robert Doyal was dead. Mr. Doyal described Robert Doyal as a hero,
saying, “[I]f he had [not] blocked that door for just that half of a second, I wouldn’t be alive.
Just . . . him delaying that bastard . . . .”

              Mr. Doyal recalled that during the time that the defendant lived in his
residence, he did not display his handgun to the defendant. Mr. Doyal said that the handgun
he used to shoot Mr. Carter was the only gun he owned at the time of the shooting. Mr.
Doyal said that he found a Mossberg 500 shotgun “lying in the floor next to where the . . .
other murderer was trying to kick his way into the bedroom.” Mr. Doyal said that he either

                                               -3-
kicked the gun out of the way or picked it up and rested it against the dining room table, but
he could not recall precisely which he had done.

              During cross-examination, Mr. Doyal said that he paid the defendant in cash
for any work he performed in excess of the agreed-upon 20 hours per week and for some
work the defendant performed for Mr. Doyal’s sister. Mr. Doyal acknowledged that he did
not keep large amounts of cash in his home because Robert Doyal would take it. He agreed
that Robert Doyal had a “serious drug problem” and that Robert Doyal had attempted suicide
on more that one occasion. He also conceded that he had called police on one occasion when
Robert Doyal stole his pain medication. He denied keeping his medication in a safe deposit
box at the time of the offenses. Mr. Doyal acknowledged calling Mark McKinney, the man
who had introduced him to the defendant, in the early morning hours after the shooting and
telling him that Ms. Adams and Robert Doyal were dead. Mr. Doyal said that he made the
call because Mr. McKinney “was basically the only friend that” Mr. Doyal had, and he
denied accusing Mr. McKinney of the murders. Mr. Doyal also denied finding a piece of
paper with Mr. McKinney’s telephone number on the floor of his house after the shooting.
Similarly, he said that he did not find Robert Doyal’s cellular telephone on the floor open
with Mr. McKinney’s name and number illuminated.

               Jay Stanley Bird, III, testified that he lived across the street from Mr. Doyal.
On July 24, 2010, he heard “what sounded to be like fireworks from across the street.” He
said that he went outside to see if he could discern the direction from which the popping
sounds had come, and he concluded that they had originated “directly at Mr. Doyal’s house.”
Mr. Bird said that he did not see “any lights or people or anything” but did see a dark
colored, four-door sedan parked behind one of the bushes at the front of his house. After the
shots ended, Mr. Bird “saw the car back up, pull into a neighbor’s driveway backwards and
turn its headlights on and speed off the opposite direction.”

              Patrick Alexander testified that he and his family visited his mother-in-law,
Melissa Smith, in July 2010. The defendant, whom he knew as Benji, was the boyfriend of
his wife’s 18-year-old sister. He said that the defendant drove a “[b]urgandy-ish,” four-door
Dodge Intrepid. Mr. Alexander recalled that the defendant and his friend, Ronnie Carter,
came and went from the apartment several times during Mr. Alexander’s two-week stay. On
the Wednesday or Thursday before the shooting, the defendant said that he had something
he wanted to show Mr. Alexander, then he opened the trunk of the Intrepid “and popped out
a 12-gauge.” Mr. Alexander said that he picked up the 12-gauge shotgun, looked at it, and
deemed it “a nice gun.” He recalled that the weapon was loaded with “green low-brass
shells.” The defendant also showed Mr. Alexander a .22 caliber pistol that was in the glove
box of the car. That gun was also loaded.



                                              -4-
              Mr. Alexander testified that on the night of the shooting, the defendant and Mr.
Carter came to Melissa Smith’s residence “dressed in all black.” He recalled that the
defendant “was running around looking inside the apartment for a black bandana” but
eventually “grabbed a hat and took off with a hat.” Mr. Alexander said that after the
defendant left, Mr. Alexander went to bed. He was awakened by his brother-in-law and his
wife “screaming for [him] to get downstairs.” When Mr. Alexander got downstairs, he went
outside, where he found the defendant “leaning over the hood of the Intrepid, screaming” that
he had been shot.

               Mr. Alexander helped the defendant inside and then undressed the defendant
to find the gunshot wound. He recalled that the defendant “was bleeding from his lower leg
on the left-hand side just behind his knee, and also right above his buttocks at the left side.”
The defendant did not offer any explanation for his having been shot and begged Mr.
Alexander not to telephone police. Mr. Alexander said that the defendant “kept screaming,
‘Don’t call the police. Let me use the phone and call my brother. I got to get out of Knox
County.’” The defendant asked Mr. Alexander to “find the bullet,” and Mr. Alexander
showed him that it was a through-and-through wound. When Mr. Alexander asked the
defendant what had happened, the defendant said, “‘That b[****] shot me.’”

               Within a short time, the defendant’s brother, James Cannon, Jr., arrived and
drove the defendant away in his Chevy truck. Before they left, Mr. Alexander heard the
defendant say, “‘Help me up, get me dressed, get me out of here. I got to get out of Knox
County tonight.’” After they left, Melissa Smith backed the defendant’s Dodge Intrepid into
a parking spot. At that point, Mr. Alexander said, he and his wife became concerned for Mr.
Carter because the defendant “left with Ronnie [but] showed up by himself with a bullet
wound.” Mr. Alexander said that they had asked the defendant about Mr. Carter, and he had
said that they should not worry about Mr. Carter. Because of their concerns, Mr. Alexander
and Melissa Smith drove to Mr. Carter’s residence and spoke with the woman who answered
the door. That woman told them that Mr. Carter had left early that morning with his
girlfriend and had not returned. Mr. Alexander and Ms. Smith then returned to Ms. Smith’s
apartment and telephoned police.

                Donna Alexander, Mr. Alexander’s wife, testified that she met the defendant
for the first time when she came with her husband and children to visit her mother. During
the time that she was visiting her mother, she socialized with the defendant and his friend,
Ronnie Carter, “a good bit.” She observed the defendant and Mr. Carter coming and going
from her mother’s residence in a maroon Intrepid.

              On the night of the shooting, the defendant and Mr. Carter arrived sometime
after 9:30 p.m., and the defendant changed from his denim shorts and light colored t-shirt

                                              -5-
into black jeans and a black t-shirt. She said that the defendant specifically asked Melissa
Smith to provide him with a black t-shirt. Mr. Carter was dressed in a long-sleeved black t-
shirt and black pants. Both men wore black shoes, and both spent time looking for a black
bandana. Before the men left, Ms. Alexander overheard Ms. Smith ask the defendant if he
would be returning to the apartment that evening. When the defendant responded that he
would be back and that he would bring Ms. Smith a Coca-Cola, Ms. Smith asked, “‘What
about the other?’” The defendant responded, “‘I’ll bring you something back.’”

                After the defendant and Mr. Carter left, she and Mr. Alexander went to bed.
At approximately 1:00 a.m., her brother woke her up and said, “‘Benji needs Patrick.’” She
and Mr. Alexander got up and went downstairs. They found the defendant “leaned over the
side of the Intrepid.” Ms. Alexander confirmed Mr. Alexander’s recitation of the events that
followed the wounded defendant’s return to Ms. Smith’s residence.

               Melissa Smith testified that in July 2010 her 18-year-old daughter was dating
the 35-year-old defendant and that the defendant lived with them. On the night of the
shooting, the defendant and Mr. Carter, who was dressed in a black turtleneck and black
pants, came to her residence so that the defendant could change clothes. She recalled that
the defendant put on black pants and asked her to provide him with a black shirt, and she
complied. She said that the shirt she gave him had white lettering on the front. After he got
dressed, the defendant told her that he and Mr. Carter were going out to a bar, and she asked
the defendant to bring her a Coca-Cola and “some of the other” when they returned. She
explained that asking for “the other” was a request for the defendant to bring her prescription
pain killers. The defendant indicated to her that he would bring her some when he returned
to the apartment later that same evening.

               At approximately 1:00 a.m., she was watching television in the living room
with her 12-year-old son when her son indicated that the defendant had returned. Her son
walked onto the porch, and she overheard the defendant tell him to go get Mr. Alexander.
Her son complied, and Ms. Smith went onto the porch. She confirmed the account of the
events that followed that was provided by Mr. and Mrs. Alexander, including the defendant’s
insistence that they not call authorities and that he had “to get out of Knox County.” She
added, however, that she noticed that the defendant was wearing the shirt she had given him
inside out so that the white lettering was not showing.

                Knox County Sheriff’s Office Officer Chadwick H. Capley, who was the first
officer to arrive at Mr. Doyal’s residence on July 24, 2010, testified that upon his arrival, he
saw that “the front glass had been busted out of the storm door, and there was actually a
person lying on the floor at the doorway of the house.” He then saw Mr. Doyal standing just
inside the doorway with “a telephone in one hand talking to 911, and a gun in the other.” Mr.

                                              -6-
Capley drew his weapon and ordered Mr. Doyal to put down the gun, and Mr. Doyal quickly
unloaded the weapon and placed it on a television stand. Officer Chadwick went into the
house and checked the condition of the female victim who lay near the front door and a male
victim who lay in a back bedroom.

               Officers photographed and collected numerous items of evidence, including
a 12-gauge shotgun shell casing from between two cars parked in the driveway and a pair of
latex gloves that lay next to another 12-gauge shell casing in the driveway. Four other shell
casings were collected from inside the Doyal residence, one from the dining room and one
from the hallway. Officers collected a Mossberg 500 12-gauge shotgun from the dining
room and a Glock .40 caliber pistol from the television stand. From inside the Dodge
Intrepid seized from the Montgomery Village apartments, officers collected bloody clothing,
an open box of 12-gauge shotgun shells, a latex glove, a pair of “knee high nylon stockings,”
and swabs of blood stains. Deoxyribonucleic acid on a blue ball cap recovered in the living
room of the Doyal residence belonged to the defendant.

               Tennessee Bureau of Investigation Special Agent and Forensic Scientist J.
Russell Davis, II, testified that the gloves found in the driveway of the Doyal residence and
the blue ball cap found in the dining room of the Doyal residence tested positive for the
presence of gunshot primer residue. Microscopic analysis of the defendant’s shoes “revealed
the presence of particles consistent with gunshot primer residue,” but those particles could
not “be identified as unique to gunshot primer residue.” Examination of glass shards taken
from the defendant’s shoes showed that the shards were consistent with the glass shattered
from the front door of the Doyal residence.

                The parties agreed to the admission of the autopsy reports in the absence of the
medical examiner’s testimony. The autopsy of Mr. Carter established that he was shot 11
times and that the cause of his death was a gunshot wound to his right temple. Additionally,
the report established the presence of amphetamines in Mr. Carter’s blood at the time of his
death. Robert Doyal suffered a shotgun wound to the right side of his torso and his arm “that
made multiple lacerations of his external jugular vein, his heart, his pulmonary arteries, his
lungs, liver, stomach, duodenum and ilium.” The autopsy of Ms. Adams established that she
suffered a shotgun wound to the chest as well as a grazing shotgun wound to her head.

            Following the presentation of this evidence, the State rested. After a full
Momon colloquy, the defendant elected to testify.

              The 35-year-old defendant testified that he was born in Georgia and came to
live in Tennessee in 2005 after his mother was placed in a nursing home in Maryville. The
defendant acknowledged prior out-of-state convictions of “making terroristic threats,”

                                              -7-
burglary, possession of stolen property, aggravated assault, false imprisonment, and
possession of a knife during the commission of a felony. The defendant said that on July 24,
2010, he was working part time at M. Day’s Garage and supplementing his income by
hanging sheet rock and giving tattoos. He claimed that it was his side business giving tattoos
that required him to have the latex gloves that were discovered in Mr. Carter’s Dodge
Intrepid after the murders. The defendant said that he met Robert Doyal through a mutual
girlfriend and Layron Doyal through Mr. McKinney.

              The defendant said that he moved into the Doyal residence in mid-September
2009 to assist Mr. Doyal, who had just had surgery, with yard work and other household
chores in exchange for a place to live. He testified that during the 15 or 16 days he lived in
the Doyal residence, he saw Mr. Doyal with his gun at his side more than he saw him without
it. He said that Mr. Doyal answered the door with the gun in his hand during their first
meeting and that he carried it in the house and the yard. The defendant said that Mr. Doyal
did not keep any pain medication in his house because Robert Doyal would steal it. Instead,
he kept the medication in a safe deposit box at the bank. The defendant said that his
girlfriend moved in with him briefly but moved out because Mr. Doyal kept coming
downstairs unannounced. He testified that he moved out because Mr. Doyal became “more
and more persistent on” him and began to drink “more and more.”

              The defendant said that he maintained his relationship with Robert Doyal even
after he moved out of the Doyal residence, explaining that he would pick Robert Doyal up
down the street to avoid any confrontation with Mr. Doyal. He said that he met Mr. Carter
three weeks before the murder through a mutual girlfriend for whom the defendant had
occasionally obtained pain pills.

               On July 23, 2010, Mr. Carter came to Ms. Smith’s residence and asked the
defendant if he could obtain pain pills for Mr. Carter. Ms. Smith, too, asked the defendant
to obtain pills for her. The defendant agreed to both requests, and he and Mr. Carter left.
The defendant said that he had telephoned Robert Doyal earlier in an attempt to obtain Mr.
McKinney’s telephone number. He said that he hoped to obtain the pills from Mr. McKinney
and to collect on a debt that Mr. McKinney owed him. The defendant claimed that he went
to the Doyal residence because the Doyals were “the only other people [he] knew that had
Mr. McKinney’s number.” The defendant said that he and Mr. Carter used Mr. Carter’s car
and that the defendant drove because Mr. Carter was “pill sick.”

              The defendant said that he parked across the street from the Doyal residence
near a bush so that Mr. Doyal would not be able to see Mr. Carter, and vice versa. He said
that he got out of the car and left Mr. Carter in the passenger’s seat. The defendant denied
being armed when he got out of the car and said that he simply went to the front door of the

                                             -8-
residence and knocked. The defendant testified that Ms. Adams answered the door, and he
asked to speak to Mr. Doyal. When Ms. Adams told him that Mr. Doyal had gone to bed, the
defendant asked to speak to Robert Doyal. Ms. Adams told him to “hold on a minute and
turned around and walked off.” Shortly thereafter, Robert Doyal came to the door, and the
defendant asked him for Mr. McKinney’s telephone number. The defendant testified that
Robert Doyal told him to “hold on a minute. He needed to get his cell phone.” Robert Doyal
returned with his cellular telephone and piece of paper and began scrolling through his
telephone looking for Mr. McKinney’s telephone number. He said that Robert Doyal wrote
the number on the piece of paper, and when he went to hand it to the defendant, “everything
got turned upside down.” He said that as they were exchanging the paper, a shotgun blast
went off behind him. The defendant claimed that he pushed Robert Doyal into the house and
ran past him as “[a]nother blast went off.” When he turned around, he saw Mr. Carter
coming through the door with a shotgun. The defendant said that he “just hit the floor” as
Mr. Carter fired another shot. He testified that after Mr. Carter walked past him and fired
another shot into the hallway, the defendant ran toward the front door. He said that as he ran
past the hallway, he was struck by a bullet fired by Mr. Doyal.

               The defendant said that he fell briefly before getting up and continuing out of
the house to Mr. Carter’s car. He said that he got into the car and drove to Ms. Smith’s
apartment. At Ms. Smith’s residence, Mr. and Mrs. Alexander “stripped [the defendant]
down and tried to doctor [him] up.” The defendant said that he asked them to call his brother
instead of the ambulance because he did not want to be arrested. The defendant denied any
intent or plans to rob Mr. Doyal on the night of the shooting and insisted that he had gone to
the Doyal residence only to obtain Mr. McKinney’s telephone number.

               During cross-examination, the defendant acknowledged that he displayed the
Mossberg shotgun and a .22 caliber pistol to Mr. Alexander in the days before the shooting.
The defendant also admitted that he told officers during a July 25, 2010 interview that he had
lived in the Doyal residence for three months and that he did not know Robert Doyal by name
and had no relationship with him. He also admitted that he told officers that the only member
of the household he had seen in the months since he moved out was Mr. Doyal and that he
had seen him only once. The defendant also admitted telling officers that he wanted to
borrow money from Mr. McKinney and to take pills from Mr. McKinney that he could then
resell.

             The defendant admitted changing into all-black clothing on the night of the
murders and looking for a black bandana to wear. He admitted that he traveled to Blount
Memorial Hospital instead of going to another hospital in Knox County.

              Following the defendant’s testimony, the defense rested. Based upon the proof

                                             -9-
presented at trial, the jury convicted the defendant as charged of three counts of first degree
felony murder and one count of criminally negligent homicide for the death of Ms. Adams,
three counts of first degree felony murder and one count of criminally negligent homicide
for the death of Robert Doyal, one count of especially aggravated burglary for breaking into
Mr. Doyal’s residence and causing serious bodily injury to Ms. Adams, one count of
especially aggravated burglary for breaking into Mr. Doyal’s residence and causing serious
bodily injury to Robert Doyal, one count of the attempted aggravated robbery of Mr. Doyal,
and one count of employing a firearm during the commission of a dangerous felony. The
jury found the defendant not guilty of the attempted especially aggravated robberies of Ms.
Adams and Robert Doyal.

               The trial court merged the jury verdicts relative to the murder of Ms. Adams
into a single conviction of first degree murder and imposed an automatic sentence of life
imprisonment. The trial court also merged the jury verdicts relative to the murder of Robert
Doyal into a single conviction of first degree murder and imposed an automatic sentence of
life imprisonment to be served concurrently to the life sentence imposed in count 1. The trial
court merged the two jury verdicts of especially aggravated burglary into a single conviction
and imposed a 30-year, Career Offender sentence to be served concurrently to the life
sentence imposed in count 1. The court imposed a 15-year, Career Offender sentence for the
conviction of attempted aggravated robbery and ordered that the sentence be served
concurrently to the sentence imposed in count 1. Finally, the trial court ordered that the six-
year sentence imposed for the defendant’s conviction of employing a firearm during the
commission of a dangerous felony be served consecutively to the life sentence imposed in
count 1. The effective sentence is, therefore, life imprisonment plus six years.

                 The defendant filed a timely but unsuccessful motion for new trial followed by
a timely notice of appeal. In this appeal, the defendant contends that the State engaged in
prosecutorial misconduct, that Mr. Doyal’s trial behavior deprived him of the right to a fair
trial, that the trial court erred by admitting certain testimony, and that the trial court erred by
refusing to enforce an agreement between the parties regarding the admissibility of a police
report. We consider each claim in turn.

                                 I. Prosecutorial Misconduct

                                     A. Opening Statement

              The defendant first asserts that the State engaged in prosecutorial misconduct
during its opening statement by telling the jury that it may or may not hear from the
defendant’s brother, who was under subpoena by the State. He claims that the statement
shifted the burden of proof to the defendant by suggesting that any failure to appear by the

                                               -10-
defendant’s brother would be the responsibility of the defendant. The State contends that the
defendant has waived our consideration of this issue by failing to include in the appellate
record a transcript of the opening statements in this case.

                 We agree with the State. The appellant bears the burden of preparing an
adequate record on appeal, see State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993), which
includes the duty to “have prepared a transcript of such part of the evidence or proceedings
as is necessary to convey a fair, accurate and complete account of what transpired with
respect to those issues that are the bases of appeal,” Tenn. R. App. P. 24(b). If the appellant
fails to file an adequate record, this court must presume the trial court’s ruling was correct.
See State v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993). Because the
defendant failed to include the transcript of the parties’ opening statements we cannot verify
that the prosecutor made the challenged statement or evaluate it in the context of the
prosecutor’s opening statement as a whole.

                            B. Cross-Examination of Defendant

               The defendant next contends that the prosecutor engaged in misconduct by
asking the defendant during cross-examination whether he had made plans to rob other
people in the weeks preceding the offenses without a good faith basis for doing so. The State
asserts that even if it was error, the question was brief, the defendant’s answer denied any
wrongdoing, and the trial court sustained the defendant’s objection to the line of questioning.

              In reviewing allegations of prosecutorial misconduct, this court looks to see
“whether such conduct could have affected the verdict to the prejudice of the defendant.”
State v. Smith, 803 S.W.2d 709, 710 (Tenn. Crim. App. 1990). That analysis involves
consideration of five factors:

              “(1) the conduct complained of viewed in context and in light of
              the facts and circumstances of the case; (2) the curative
              measures undertaken by the Court and the prosecution; (3) the
              intent of the prosecutor in making the improper statement; (4)
              the cumulative effect of the improper conduct and any other
              errors in the record; and (5) the relative strength or weakness of
              the case.”

State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984) (quoting Judge v. State, 539 S.W.2d 340,
344 (Tenn. Crim. App. 1976)).

              In our view, the prosecutor did not engage in misconduct when he asked the

                                             -11-
challenged question. The prosecutor argued that he had a good faith basis to ask the
defendant whether he and Mr. Carter had made plans to rob other people based upon a
statement given by an individual named Tevin Fishback, who had claimed that Mr. Carter
attempted to recruit Mr. Fishback to participate in a robbery in the presence of the defendant
and that the defendant had nodded his head in agreement. Mr. Fishback’s claim of the
defendant’s silent assent to Mr. Carter’s robbery plans provided the prosecutor with a good
faith basis to ask the question about the defendant’s future robbery plans. After the
defendant denied any such plans, the trial court correctly ruled that the prosecutor was
“stuck” with the defendant’s denial and rightly prohibited any further questioning or extrinsic
evidence on the matter. The defendant is not entitled to relief on this issue.

                The defendant also claims that the prosecutor engaged in misconduct by
utilizing the defendant’s brother’s statement to police in an attempt to impeach the defendant
during cross-examination. During cross-examination, the prosecutor asked the defendant if
he had told police at the hospital that he had been shot in the apartment complex where Ms.
Smith lived. The defendant stated that he could not recall having told the police anything
during that time. Defense counsel objected to the line of questioning on grounds that the
basis for the question was actually the defendant’s brother’s statements rather than the
defendant’s own statement. In that statement, the defendant’s brother told police that the
defendant had said that he had been shot while at the apartment complex. In our view, the
statement provided the prosecutor with a good faith basis for asking the question of the
defendant. The trial court again correctly ruled that the State was bound by the defendant’s
answer and prohibited any further questioning or extrinsic evidence. The defendant is not
entitled to relief on this issue.

                          C. Agreement Regarding Police Report

               In his final claim of prosecutorial misconduct, the defendant claims that the
prosecutor engaged in misconduct by failing to honor an agreement to permit admission into
evidence of a police report filed by Mr. McKinney on July 24, 2010. He claims that the
prosecutor agreed to permit admission of the report in exchange for the defendant’s agreeing
to allow one Tennessee Bureau of Investigation Agent to testify from the report prepared by
another agent who was scheduled to go on a family vacation at the time of the trial. He
asserts that the prosecutor then reneged on the agreement by objecting to the admission of
the statement after having received the benefit of the bargain.

              During his cross-examination testimony, Mr. Doyal adamantly denied
threatening Mr. McKinney in the hours just after the murders. Mr. Doyal acknowledged that
he called Mr. McKinney and left a voicemail telling Mr. McKinney about the murders, but
he denied calling Mr. McKinney “the son-of-a-b[****] who did it.” Defense counsel then

                                             -12-
approached the bench and informed the trial court that the State had previously agreed to
allow admission of a police report generated by the Sevier County Sheriff’s Department
when Mr. McKinney telephoned police to report the threat. Counsel explained that in
exchange for the State’s agreement, the defendant had agreed to let evidence of fingerprint
analysis come from a witness other than the one who performed the analysis. The prosecutor
acknowledged the prior agreement but stated that Mr. Doyal’s testimony on the subject had
altered his opinion. He said that Mr. Doyal’s testimony made it clear to him that the
information about the telephone call would best be related by Mr. McKinney rather than
permitting admission of the police report. He said that given his knowledge of Mr. Doyal’s
hatred of Mr. McKinney, he assumed that Mr. Doyal would admit threatening Mr.
McKinney. Because Mr. Doyal denied making the statement, however, the prosecutor
argued that Mr. McKinney should be called to testify rather than simply admitting the police
report.

               The trial court observed that outside an agreement between the parties allowing
its admission into evidence, the proffered police report was inadmissible hearsay. The court
admonished the prosecutor that “[t]here shouldn’t be any reneging of a deal” but noted that
the defendant would have to show that he would be prejudiced unless the trial court held the
prosecutor to his earlier bargain. The only prejudice claimed by the defendant was that he
had questioned Mr. Doyal with a mind that the police report would be admitted. The trial
court ruled that there had never been a true meeting of the minds given the prosecutor’s
assumption about what Mr. Doyal’s testimony would be.

                In our view, the ruling of the trial court was correct. Although the defendant
contends that the parties entered into a quid pro quo agreement whereby the defendant would
be permitted to admit the report in exchange for his agreeing to permit the substitute
testimony, the record does not support this interpretation of the parties agreement. To the
contrary, the record establishes that the defendant agreed either prior to or near the beginning
of the trial to permit the substitute testimony. Later, when he decided to seek admission of
the police report during his cross-examination of Mr. Doyal, defense counsel asked for the
prosecutor’s agreement on the admission of the police report, making reference to his own
“very nice” agreement to permit the substitute testimony. The defendant’s asking for the
prosecutor’s agreement based upon consideration already given does not equate to a quid pro
quo arrangement. Moreover, at the time the prosecutor objected to the report, none of the
forensic witnesses had testified. Thus, the prosecutor had not, as the defendant claims,
received the benefit of the defendant’s agreement regarding the substitute testimony when
he made the objection to the police report. The defendant was free, at that point, to object
to the substitute testimony. Finally, the defendant has failed to establish any prejudice
stemming from the prosecutor’s failure to honor his initial agreement to admit the report.
The defendant has failed, under these circumstances, to show that the prosecutor engaged in

                                              -13-
any misconduct.

                                   II. Mr. Doyal’s Behavior

             The defendant next contends that Mr. Doyal’s “antics” during direct and cross-
examination deprived him of the right to a fair trial.

                Just after calling the defendant a “bastard” during his direct examination
testimony, Mr. Doyal was overcome with emotion. The trial court sua sponte excused the
jury and suggested that Mr. Doyal be excused for the day and asked to return the following
day to resume his examination. The parties agreed. On the following morning, the
prosecutor informed the court that he had spoken with Mr. Doyal’s sister, who said that Mr.
Doyal had been suffering from chest pains and was contemplating a trip to the emergency
room. Mr. Doyal arrived later that day, and the trial court admonished him to alert the court
immediately if he felt he could not continue because of his medical condition. Mr. Doyal
agreed and notified the court that he had brought a plastic bag in case he felt the need to
vomit. Defense counsel noted his concern with the appearance of the witness, and the court
replied, “You take your victims as you get them.” Defense counsel noted, in particular, that
Mr. Doyal was using oxygen when he had not done so on the previous day. Mr. Doyal
testified that he had been prescribed supplemental oxygen “for several years” as a result of
his chronic obstructive pulmonary disease and that he generally resorted to using the
supplemental oxygen when he exerted himself. He said that the physical and emotional
exertion of testifying on the previous day had caused him to require the use of the oxygen.

                 Now on appeal, the defendant claims that Mr. Doyal’s emotional breakdown
and subsequent appearance with supplemental oxygen was a ruse manufactured by the State
to garner sympathy for Mr. Doyal. Initially, we note that the defendant failed to support his
argument with citation to appropriate authorities, and, accordingly, the claim is waived. See
Tenn. R. App. P. 27(a)(7) (stating that the appellant’s brief must contain an argument,
“setting forth . . . the contentions of the appellant with respect to the issues presented, and
the reasons therefor . . . with citations to the authorities and appropriate references to the
record . . . relied on; and . . . for each issue, a concise statement of the applicable standard
of review”); Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument,
citation to authorities, or appropriate references to the record will be treated as waived in this
court.”). Moreover, the defendant’s claim is wholly unsupported by the record. Mr. Doyal,
in his sixties at the time of the trial, testified that he suffered from the lingering effects of
wounds he received during the Vietnam War and a serious motorcycle accident. He testified
that in addition to these injuries, he suffered from chronic obstructive pulmonary disease,
diabetes, cardiac artery disease, acid reflux, pancreatitis, carpal tunnel syndrome, and
neuropathy. His health was so poor, in fact, that he had taken the defendant on as a tenant

                                              -14-
to help with the household chores some two years prior to the trial. On the second morning
of the trial, Mr. Doyal’s sister reported to the prosecutor that the previous day’s testimony
had taken a great physical toll on the witness. When he appeared later that day using the
supplemental oxygen, he explained that he had been prescribed supplemental oxygen “for
years” to use when he exerted himself physically. Finally, the State exhibited to the hearing
on the motion for new trial a copy of Mr. Doyal’s obituary, which established that Mr. Doyal
died only eight months after the trial. In light of this evidence, the defendant’s claim that Mr.
Doyal’s appearance or his use of supplemental oxygen during his second day of testimony
was a ruse concocted by the prosecutor or the witness to extract sympathy from the jury is
utterly unfounded. As such, he is not entitled to relief on this issue.

                                    III. Witness Testimony

                                    A. Patrick Alexander

               The defendant asserts that the trial court erred by permitting Mr. Alexander to
testify that the defendant had displayed a Mossberg 12-gauge shotgun and a .22 caliber
handgun to him in the days before the murder, claiming that the testimony was not relevant
given that the State relied on a theory that the defendant was criminally responsible for Mr.
Carter’s having shot Ms. Adams and Robert Doyal. The State contends that the trial court
properly admitted the evidence.

                Relevant evidence is evidence “having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Tenn. R. Evid. 401. “Evidence which is
not relevant is not admissible,” Tenn. R. Evid. 402, and even if evidence is deemed relevant,
it may be still be excluded “if the probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R. Evid.
403.

              In our view, the trial court did not err by admitting this testimony. That the
defendant displayed the weapons in question to Mr. Alexander in the days before the murder
established that the defendant knew that the shotgun was in the trunk of the Intrepid and that
he was familiar with how to operate the weapon. His possession and display of the murder
weapon tied him to the weapon in a manner that made it more likely that he participated in
the crime with Mr. Carter.




                                              -15-
                                       B. Melissa Smith

                 The defendant also contends that the trial court erred by permitting Ms. Smith
to testify that, on the night of the offenses, she asked the defendant to bring her “some of the
other” and to explain that “the other” referred to prescription pain killers. He argues that the
testimony was irrelevant. The State avers that the trial court did not err by admitting the
testimony because it tended to establish that the motive for the robbery was the theft of
prescription pain killers.

               We agree with the State. Ms. Smith’s testimony that the defendant agreed to
provide her with prescription pain killers when he returned on the night of the murders
supported the State’s theory that the object of the home invasion was the theft of pain killers
from Mr. Doyal. In consequence, the evidence was relevant, and, given that the reference
was relatively brief and limited only to that single occasion, its probative value was not
outweighed by any potential prejudice. This is particularly true given that the defendant
himself testified that he and Mr. Carter were on the hunt for prescription pain killers.

                                       IV. Police Report

               In his final claim for relief, the defendant contends that the trial court erred by
excluding from evidence a police report that showed that the defendant’s brother rather than
the defendant told police that the defendant had been shot in Ms. Smith’s apartment complex.
As indicated above, during its cross-examination of the defendant, the State asked whether
the defendant had told authorities that he was shot at Ms. Smith’s apartment complex, and
the defendant responded that he could not recall telling the police anything during that time
period. The trial court ruled that the defendant’s brother’s statement to police provided the
State a good faith basis to ask the question but refused to admit any extrinsic evidence
because the statement was not the defendant’s own. The defendant then sought admission
of the police report to establish that the defendant’s brother gave the report to police. The
trial court excluded the report on grounds that it was inadmissible hearsay.

                “‘Hearsay’ is 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.” Tenn.
R. Evid. 801(c). “Hearsay is not admissible except as provided by these rules or otherwise
by law.” Id. 802. Tennessee Rules of Evidence 803 and 804 provide exceptions to the
general rule of inadmissibility of hearsay. “Because ‘[n]o factual issue attends’ the trial
court’s determination whether a statement is hearsay, ‘it necessarily is a question of law.’”
State v. Ackerman, 397 S.W.3d 617, 638 (Tenn. Crim. App. 2012) (quoting State v. Gilley,
297 S.W.3d 739, 760 (Tenn. Crim. App. 2008) (citing State v. Schiefelbein, 230 S.W.3d 88,
128 (Tenn. Crim. App. 2007); Keisling v. Keisling, 196 S.W.3d 703, 721 (Tenn. Ct. App.

                                              -16-
2005))). “Although the application of the various exceptions to the hearsay rule ‘may
initially depend upon factual determinations’ to which a reviewing court must defer, the trial
court ‘has no discretion to exclude hearsay exception evidence that is otherwise admissible
under the rules of evidence.’” Ackerman, 397 S.W.3d at 638 (quoting Gilley, 297 S.W.3d
at 760-61). “Thus, the appropriate standard of review to be applied to the trial court’s
decision admitting or excluding hearsay evidence is de novo.” Id.

              The police report proffered by the defendant in this case was the out-of-court
statement of the officer who prepared it, making it hearsay, and the defendant’s brother’s
statement contained therein was hearsay within hearsay. The defendant offered no exception
that would permit its admission, and we find none. The trial court did not err by refusing to
admit the report.

                                       V. Plain Error

               Although not raised by the parties, we notice plain error in the defendant’s
conviction of especially aggravated burglary. See Tenn. R. App. P. 36(b) (“When necessary
to do substantial justice, an appellate court may consider an error that has affected the
substantial rights of a party at any time, even though the error was not raised in the motion
for a new trial or assigned as error on appeal.”).

               The defendant was charged with a total of eight counts of first degree murder
for the deaths of Ms. Adams and Robert Doyal. He was also charged with two counts of
especially aggravated burglary for breaking into Mr. Doyal’s residence and causing injuries
to Ms. Adams and Robert Doyal. The trial court merged the jury verdicts into a single
conviction of especially aggravated burglary. Tennessee Code Annotated section 39-14-404,
proscribing especially aggravated burglary, provides, “Acts which constitute an offense under
this section may be prosecuted under this section or any other applicable section, but not
both.” T.C.A. § 39-14-404(d). Because the defendant was prosecuted for first degree
murder for the injuries inflicted on Ms. Adams and Robert Doyal, he could not also be
prosecuted for especially aggravated burglary based on those same injuries. See, e.g., State
v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993). In consequence, his conviction of
especially aggravated burglary must be modified to conviction of aggravated burglary and
remanded for resentencing. See id.

                                       VI. Conclusion

                 The defendant failed to establish that the prosecutor engaged in misconduct or
that the trial court erred in the admission or exclusion of any evidence. Because Code section
39-14-404(d) bars the defendant’s conviction of especially aggravated burglary, that

                                             -17-
conviction is modified to a conviction of aggravated burglary and remanded for resentencing.
The judgments of the trial court are affirmed in all other respects.


                                                   _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




                                            -18-
