State of Tennessee v. Roy Len Rogers ( 2013 )


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  •         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT KNOXVILLE
    September 18, 2012 Session
    STATE OF TENNESSEE v. ROY LEN ROGERS
    Appeal from the Circuit Court for Rhea County
    No. 16878 J. Curtis Smith, Judge
    No. E2011-02529-CCA-R3-CD - Filed September 23, 2013
    The Defendant, Roy Len Rogers, was convicted by a Rhea County jury of first degree
    premeditated murder, second degree murder, and reckless endangerment. Subsequently, the
    trial court merged the second degree murder conviction into the first degree murder
    conviction and imposed a mandatory life sentence for that conviction and a concurrent term
    of eleven months and twenty-nine days for the reckless endangerment conviction. In this
    direct appeal, the Defendant contends (1) that the trial court erred by denying his motion to
    suppress evidence found during the search of his home; (2) that the evidence was insufficient
    to support his convictions and that the verdicts were inconsistent; (3) that the trial court erred
    by refusing to allow the Defendant to play a 911 tape; (4) that the trial court improperly
    admitted irrelevant photographs of tires of the Defendant’s vehicle; (5) that the State
    withheld Brady material, specifically the statement of a potential suspect; and (6) that a juror
    evidenced bias by her actions and body language prior to deliberations. Following our
    review of the record and the applicable authorities, we determine that there is no reversible
    error in the judgments of the trial court and affirm.
    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 OHN E VERETT
    W ILLIAMS and R OBERT W. W EDEMEYER, JJ., joined.
    Keith H. Grant (at trial and on appeal), Chattanooga, Tennessee; and Robert D. Philyaw (at
    trial), Signal Mountain, Tennessee, for the appellant, Roy Len Rogers.
    Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;
    Michael J. Taylor, District Attorney General; and James W. Pope, III, Assistant District
    Attorney General, for the appellee, State of Tennessee.
    OPINION
    FACTUAL BACKGROUND
    In the late evening hours of July 29, 2007, the forty-year-old victim, Gregory Keith
    Brown, was inside the bedroom of Vanessa Rogers’s apartment when he was killed by a
    bullet that pierced the window and struck him in the head. Mrs. Rogers lived in Country
    Village Apartments on Blythe Ferry Road in Dayton. As a result of this shooting, a Rhea
    County grand jury, on August 6, 2007, charged the Defendant with the first-degree
    premeditated murder of the victim, the felony murder of the victim during the attempted
    murder of Mrs. Rogers, and the attempted first degree murder of Mrs. Rogers. See Tenn.
    Code Ann. §§ 39-12-101, -13-202. The Defendant’s case proceeded to trial in October 2010.
    The evidence at the Defendant’s trial revealed the following facts. The Defendant met
    Vanessa Rogers1 in October 2006, and the couple married shortly thereafter in December
    2006. While married, the Defendant worked at Soddy Daisy Pawnshop, and the couple,
    along with their respective children, lived on Dayton Mountain, next door to the Defendant’s
    parents. The Defendant owned quite a few guns and ammunition and would often shoot at
    targets in the backyard. The Defendant was described as a “collector” of guns, often
    attending gun shows.
    Mrs. Rogers described the marriage as “[r]ocky” and stated that the Defendant was
    very controlling and threatening from the start. By March 2007, the marriage ended, and
    Mrs. Rogers moved away from the Defendant’s residence. She and her daughter, Ciera
    Bennett, initially moved in with Mrs. Rogers’s mother, Loretta Hawkins. They did not live
    with her mother for very long, moving to an apartment in Country Village Apartments in the
    weeks that followed.
    Mrs. Rogers stated that the Defendant did not “take the separation . . . well,” calling
    her constantly and frequently driving by her residence. According to Mrs. Rogers, when she
    lived with her mother, the Defendant would even knock on the door. When Mrs. Rogers
    moved to Countryside Village Apartments, the Defendant continued to drive by her
    residence. Due to the numerous telephone calls, Mrs. Rogers changed her phone number,
    but the Defendant somehow managed to get that new number, and continued to call her
    incessantly even though she had asked him to stop. She estimated that “sometimes there
    w[ere] probably hundreds of calls a day.”
    When the Defendant refused to stop driving by her apartment and calling her, Mrs.
    Rogers involved the police. After the police came to Mrs. Rogers’s apartment on several
    1
    Her name was no longer Rogers by the time of trial; it was Collett. She had remarried. We will refer to
    her as “Mrs. Rogers” for purposes of this opinion.
    -2-
    occasions, they advised her to seek an order of protection. According to Mrs. Rogers, the
    Defendant had also “threatened her life” during a phone conversation, saying that “if he
    couldn’t have [her,] no one else could.” She did obtain an order of protection, but despite
    that order, the Defendant continued to stalk and harass her.
    After they separated, Mrs. Rogers hired an attorney to file for a divorce. Although she
    believed that the divorce was being processed in April, she later learned that the paperwork
    was not actually filed until June 15, 2007. During that time, on June 8, 2007, Mrs. Rogers
    met the victim. Prior to their first meeting, the victim and the Defendant had already
    discussed Mrs. Rogers. According to Mrs. Rogers, during her first conversation with the
    victim, he already “knew all about” her from the Defendant. She and the victim initially met
    in Ringgold, where the victim lived. They began dating, and the victim would then come
    visit her at her apartment in Dayton.
    After Mrs. Rogers and the victim started dating, the Defendant began calling the
    victim. According to Mrs. Rogers, the victim would sometimes get six to eight calls or text
    messages from the Defendant a day. Sometimes, the Defendant would leave the victim
    voicemail messages. Mrs. Rogers listened to some of those messages and heard the
    Defendant say, “what’s your relationship with my wife, why are you seeing my wife, things
    like that.” Mrs. Rogers stated that the victim told the Defendant to stop calling him.
    On Saturday, July 28, 2007, Mrs. Rogers and her daughter, Ms. Bennett, were at home
    in their apartment. Pursuant to advice from a domestic violence counselor, Mrs. Rogers had
    placed a windchime on her door, so she would be alerted to any intruders. While they were
    watching television that evening, the windchimes “started to jingle[.]” Ms. Bennett
    “jumped” and went to look through the peephole in the door. Mrs. Rogers testified that her
    daughter then said, “Mama, it’s Len.” Mrs. Rogers called 911, stating that they had a
    prowler at the home; however, she never stated during the 911 call that it was the Defendant
    outside. According to Mrs. Rogers, the order of protection was in effect at that time, and the
    Defendant was not supposed to be at her apartment. When the police arrived, the Defendant
    had already left the area.
    The following morning, on July 29, 2007, Mrs. Rogers and her daughter went to
    church together. They returned to church later that day for an evening service. Prior to this
    occasion, the Defendant had followed Mrs. Rogers “[s]everal times[,]” including to and from
    church. She had reported the “stalking” to the police, filing reports to document the
    incidents.
    After the evening service had concluded on July 29, 2007, the victim met Mrs. Rogers
    at her apartment around 8:00 p.m. Mrs. Rogers, the victim, Mrs. Rogers’s daughter, and her
    -3-
    daughter’s boyfriend all went to dinner in Cleveland, and after dinner, they went to visit Mrs.
    Rogers’s son. According to Mrs. Rogers, the Defendant called the victim three or four times
    during this time, but the victim ignored those calls. Before returning to Mrs. Rogers’s
    apartment, they dropped off her daughter’s boyfriend at his house. They arrived back at her
    apartment between 11:15 and 11:30 p.m.
    The victim, an electrician, was leaving to go out of town the next day, so he had
    packed a suitcase. He had previously decided to spend the night with Mrs. Rogers because
    he was “worried with everything going on[.]” Mrs. Rogers went into the bedroom to show
    the victim where to put his suitcase and to help him pick out his clothes for the following
    day. The victim’s .380 handgun, which was holstered, was lying on a bedroom chair at that
    time.2 The victim had brought the handgun to give to Mrs. Rogers for her protection. While
    Mrs. Rogers was standing beside the victim in her bedroom, she heard a “pop” and “felt . .
    . a burning on [her] left hand and the side of [her] face.” She saw blood drip onto the
    victim’s hand, and the victim fell to the floor. Upon realizing that the victim had been shot,
    she ran to her daughter’s room to get the phone in order to call 911. Mrs. Rogers initially
    reported that the victim had shot himself.
    Mrs. Rogers testified that the Defendant had threatened to kill her at least twice, that
    he had said to Mrs. Rogers’s sister that Mrs. Rogers “was as good as dead,” and that in the
    past, he had threatened Mrs. Rogers with a gun. According to Mrs. Rogers, the Defendant
    did not call her anymore after the victim had been shot.
    Ms. Bennett, Mrs. Rogers’s daughter, eighteen at the time of trial, confirmed the many
    incidents of stalking, harassment, and repetitive phone calls by the Defendant against her
    mother. Ms. Bennett also heard some of the threats the Defendant made to her mother.
    According to Ms. Bennett, the Defendant would call and say, “Dead”; her mother would then
    ask, “What are you saying?”; and the Defendant would respond, “D-E-A-D.” The Defendant
    also called Ms. Bennett’s phone on a number of occasions, prompting her to change her
    number. Ms. Bennett confirmed that she saw the Defendant outside their apartment on the
    night before the shooting when alerted by the windchimes.
    Mrs. Rogers’s mother, Loretta,3 testified, confirming several of the events about which
    Mrs. Rogers had previously testified. Loretta testified that, when Mrs. Rogers and the
    Defendant first separated and Mrs. Rogers moved in with Loretta, the Defendant would wake
    2
    Later testing confirmed that the pistol had not been fired.
    3
    Because Ms. Hawkins and her daughter Dottie have the same last name, and both testified at trial, we will
    refer to them by the first name for the sake of clarity. We intend no disrespect in so doing.
    -4-
    her up every morning by ringing the doorbell and leaving notes on the door. He did this at
    least eight times until Loretta had Mrs. Rogers tell him to stop. Loretta eventually had to
    have her home phone disconnected because the Defendant would not quit calling. Loretta
    also said that the Defendant would follow them while they were out.
    Mrs. Rogers’s sister, Dottie Hawkins, also testified about the incidents of stalking,
    harassment, and voluminous phone calls from the Defendant. According to Dottie, the
    Defendant phoned her one time and told her that he was on his way to kill Mrs. Rogers.
    Dottie called the police and informed them of the threat, so the police went directly to Mrs.
    Rogers’s home and escorted Mrs. Rogers from the apartment. Dottie testified that she
    resembled her sister, and on one occasion, she borrowed her sister’s vehicle. While driving
    her sister’s car, “apparently” the Defendant thought that she was Mrs. Rogers, and he tried
    to “run [her] off the road[.]” On another occasion, Dottie saw the Defendant with a weapon,
    and he threatened “to use it on [her].” According to Dottie, the Defendant told her that he
    wanted her dead because she “looked like” her sister.
    Dottie estimated that “[f]rom the separation to the night of the murder, [the
    Defendant] probably called [her] making threats about [her] sister probably 100 to 150
    times.” Dottie testified that the Defendant had also threatened Ms. Bennett’s “life.”
    Dottie confirmed that she was married to Terry Janow and that, on the night of the
    shooting, she and her husband were in bed asleep. After receiving a call that the victim had
    been shot, they got up and went to Mrs. Rogers’s apartment.
    Janice Franklin, a friend of Mrs. Rogers, testified about five or six occasions where
    the Defendant stalked them while she was out with Mrs. Rogers, including one occasion
    when he followed them from church, following them “through town[.]” Ms. Franklin also
    witnessed three or four phone calls from the Defendant to Mrs. Rogers.
    Deputy Gerald Brewer of the Rhea County Sheriff’s Department (RCSD) testified that
    he measured the distance from Mrs. Rogers’s apartment to the Defendant’s home on Dayton
    Mountain, which he determined to be 7.9 miles on the most direct route or 8.1 miles on an
    alternate route. When he followed the posted speed limits on the direct route, the trip took
    approximately ten minutes, but when he drove about ten to fifteen miles over the posted
    limit, it only took about seven minutes.
    Detective Chris Hall of the RCSD investigated the scene, finding a bullet hole in Mrs.
    Rogers’s bedroom window. He also found a 9mm shell casing on the ground outside the
    window. When he was outside, he was able to see clearly inside Mrs. Rogers’s bedroom
    because there was a gap in the window covering. He also observed an area outside between
    -5-
    the air conditioner unit and the window where part of the moss “was mashed down where
    someone had been standing in that area.” He testified that, from the depression of the moss,
    he was able to determine “that someone had been standing right there at the edge of the
    window.”
    Det. Hall then went to investigate the area surrounding the apartment. In a nearby
    roadbed, approximately one hundred feet from the apartment building, he found evidence
    that a vehicle had left that area, including a set of tire tracks, with three visible longitudinal
    stripes, coming out of the roadbed. There “was not enough detail” in the tracks for tests to
    make a positive identification of any vehicle. Det. Hall also found “fresh skid marks” where
    it appeared that the“vehicle had dragged the underside, . . . like the vehicle had backed out,
    or came out and bottomed out.”
    In the hours that followed, the Defendant was picked up by the police for questioning
    and interviewed by Tennessee Bureau of Investigation (TBI) Special Agent Luke Muhonen.
    During the interview, which began at 3:46 a.m., the Defendant said that he had made
    arrangements for his children to spend the night with his parents that evening because his air
    conditioning was not working. When he asked for a lawyer, the interview ceased.
    After obtaining a search warrant, a search of the Defendant’s home was conducted.
    During the search, officers found two 9mm shell casings.4 Officers also searched the
    Defendant’s vehicles on the property. Inside a Dodge Durango, officers confiscated a
    camera and, on that camera, found pictures taken on July 12, 2007, of Mrs. Rogers’s
    apartment with two vehicles parked out front. The Defendant’s 1993 Honda Civic was also
    taken from the property for further examination. The tires on the Civic had three longitudinal
    stripes, similar to the ones found on the scene at the nearby roadbed. There were also several
    “fresh scrape marks” on the undercarriage of the Civic. The marks on the vehicle were
    determined to be “fresh” because they were “real bright” and “[t]he metal was shining
    through[.]”
    The State introduced evidence about the Defendant’s phone calls on the evening of
    the shooting. After learning of the shooting, the Defendant’s brother, Russell Rogers, then
    an RCSD officer, called the Defendant on his cell phone at 12:05 a.m. but received no
    answer. Given the initial report of a suicide or accidental shooting at Mrs. Rogers’s
    4
    These exhibits were also referred to as “fired,” “expended,” or “spent cartridge cases” or a “hull.” We
    believe all of these terms refer to the outer metal covering of a bullet. For consistency, we will use the term
    “shell casing.”
    -6-
    apartment, Russell5 was afraid his brother was involved. Russell then called his parent’s
    house at 12:09 a.m, located next door to the Defendant’s, and they informed Russell that the
    Defendant “was at his house.” Russell called the Defendant’s house at 12:10 a.m. but still
    the Defendant did not answer. The Defendant returned Russell’s call, using his cell phone,
    at 12:12 a.m.
    Daniel Witherow testified that the Defendant called him from his cell phone at 12:09
    a.m. and that they talked for two or three minutes. According to Witherow, the Defendant
    called him a second time from the Defendant’s home phone at 12:16 p.m, again talking for
    two or three minutes “at the most.” During that first call from the Defendant’s cell phone,
    Witherow said he could hear an oscillating fan that the Defendant usually kept running in his
    bedroom, leading Witherow to conclude that the Defendant was at home during the call. He
    also recalled the Defendant’s home phone ringing in the background.
    In addition to the Defendant’s home phone, two cell phones were linked to the
    Defendant, although the Defendant later disputed that one of the cell phones belonged to him.
    It was determined that between 9:08 a.m. and 10:05 p.m. on July 29, 2007, the Defendant
    called the victim’s cell phone fifteen times. The last outgoing call from the Defendant’s cell
    phone was made at 11:08 p.m., and the next incoming call was from his brother Russell after
    midnight. The Defendant’s home phone records reflected an outgoing call at 11:20 p.m., and
    the next call was made at 12:16 a.m. to Witherow. The third, disputed cell phone showed an
    outgoing call at 10:08 p.m. and then not another call until 1:03 a.m.
    TBI testing revealed that the two 9mm shell casings from the Defendant’s residence
    and the 9mm shell casing found at the scene were all fired by the same weapon. All three
    shell casings were determined to be Winchester manufactured and 9mm Luger cartridge
    cases. The bullet which killed the victim was determined to be of 9mm caliber. Among the
    many brands that could have fired the bullet recovered from the victim’s body was a Star-
    manufactured weapon. There was also testimony presented about an audit of the Soddy
    Daisy Pawn Shop, where the Defendant had worked from August 2006 until April 2007.
    While working there, the Defendant was often alone in the store. The pawnshop was audited
    for a period of September 3, 2007, to September 2, 2008. During this audit, it was
    discovered that a 9mm firearm, a Star Super brand, was missing. The weapon was received
    by the pawn shop on March 26, 2007, and the Defendant was the employee who processed
    that transaction. The police later placed a hold on the weapon on April 25, 2007, meaning
    that the item was not for resale. The Defendant would have been the employee to notate the
    hold on the firearm in the computer system.
    5
    Again, for the sake of clarity, we will refer to this witness by his first name.
    -7-
    Det. Hall confirmed that he and Agent Muhonen interviewed Terry Janow in
    connection with this shooting. Det. Hall stated that Mr. Janow was not a suspect, but they
    wanted to talk to him to “clarify some stuff.” They did search Mr. Janow’s home and his
    vehicles, finding nothing to connect Mr. Janow to the victim’s murder.
    The Defendant testified on his own behalf, denying any involvement in the victim’s
    murder. He also denied ever threatening Mrs. Rogers or taking the 9mm weapon from the
    pawn shop, claimed that one of the cell phones did not belong to him, and maintained that
    his conversations with the victim were cordial. The Defendant asserted that he only called
    the victim on the day of the victim’s murder because the victim had called him first, and he
    was trying to return the victim’s call. During his second conversation with Witherow that
    evening, the Defendant was aware of the shooting at Mrs. Rogers’s apartment. Believing
    that he might be questioned about the incident, the Defendant told Witherow that he was
    going to write down the times of the phone calls, and Witherow told the Defendant that “he
    would save the calls and lock them on his phone so they were there.”
    The Defendant explained that 9mm shell casings were found at his house because Mr.
    Janow had come to his home trying to sell him a 9mm handgun. They fired the weapon
    outside a few times to test it, but the Defendant said he ultimately did not purchase the
    weapon from Mr. Janow. The Defendant also claimed that Mr. Janow and Mrs. Rogers had
    an affair, which continued “up until the time” he met her.
    The Defendant offered several character witnesses on his behalf. The Defendant’s
    father explained that, although the Defendant “couldn’t hit the broad side of a barn with a
    handgun[,]” he was extremely accurate with a “[l]ong gun” because he “was in the ROTC
    rifle team.” His father confirmed that Mr. Janow came to the Defendant’s residence trying
    to sell a 9mm firearm.
    The Defendant’s brother was recalled to the stand and testified that the Defendant was
    “not very [good] at all” with a handgun. Russell said that his brother did not have a
    reputation for violence. Witherow was recalled to the stand and testified that, when he spoke
    with the Defendant immediately following the shooting, the Defendant sounded “normal”
    and did not sound “upset, or nervous, or worried[.]”
    The State called Karen Zimmerley, a former employer of the Defendant’s, in rebuttal.
    Ms. Zimmerley testified that, on one occasion, she overheard the Defendant threaten to kill
    Holly Peak,6 the Defendant’s ex-wife. Ms. Peak, the mother of the Defendant’s children, was
    called to the stand and testified that the Defendant told her that “if he couldn’t have [her],
    6
    Her last name was also Zimmerley at time of trial.
    -8-
    nobody could.” According to Ms. Peak, the Defendant frequently drove by her residence
    following their separation and called her incessantly. She likewise was forced to obtain an
    order of protection against the Defendant. Mrs. Rogers was recalled and denied ever having
    an affair with Terry Janow.
    Following the conclusion of proof, the Defendant was convicted as charged in Count
    1 of the first degree premeditated murder of the victim, found guilty of the lesser-included
    offense of second degree murder in Count 2, and found guilty of the lesser-included offense
    of reckless endangerment in Count 3. See Tenn. Code Ann. §§ 39-13-103, -202, -210. The
    trial court merged the first degree and second degree murder verdicts and imposed the
    mandatory life sentence. For the reckless endangerment conviction, the Defendant was
    sentenced to a concurrent term of eleven months and twenty-nine days. This timely appealed
    followed.
    ANALYSIS
    On appeal, the Defendant presents the following issues for our review: (1) whether
    the trial court erred by refusing to suppress evidence obtained during the search of the
    Defendant’s home; (2) whether the evidence was sufficient to support his convictions,
    including whether the verdicts were inconsistent; (3) whether the trial court erred by refusing
    to allow the Defendant to play a 911 tape; (4) whether the trial court properly admitted, as
    relevant evidence, photographs of the Defendant’s tires; (5) whether the State withheld Mr.
    Janow’s statements in violation of Brady v. Maryland; and (6) whether a juror evidenced bias
    against the Defendant by her body language and actions prior to deliberations.7 We address
    each issue in turn.
    I. Motion to Suppress
    The Defendant argues that the trial court erred by not suppressing the evidence
    obtained as a result of the search warrant and accompanying affidavit. Specifically, on
    appeal, he argues that (1) the officer who signed the affidavit “had no firsthand knowledge
    of the important facts alleged in the affidavit”; (2) information supplied to the affiant and
    included in the affidavit was clearly false; (3) the information obtained from Mrs. Rogers,
    and included in the affidavit, was not entitled to a presumption of reliability; and (4) no copy
    of the warrant was left with the Defendant or at his residence, in violation of Rule 41,
    Tennessee Rules of Criminal Procedure. The State replies that the trial court properly denied
    the Defendant’s motion to suppress the evidence because the police obtained the evidence
    from the Defendant’s home pursuant to a valid search warrant.
    7
    For the purpose of clarity, we have reordered and renumbered the issues as presented by the Defendant in
    his brief.
    -9-
    A. Search Warrant
    The search warrant was issued on July 30, 2007, at 3:52 p.m., just following the
    shooting and the same day the Defendant had been taken into custody and questioned. The
    affidavit in support of the search warrant for the Defendant’s residence states, in its entirety,
    as follows:
    Comes now Chris Hall, after being duly sworn, deposes and says:
    (a.) That I am a certified police officer within the State of Tennessee.
    I have 13 years experience in law enforcement and have presently been
    assigned as a criminal investigator with the Rhea County Sheriff’s Department.
    This position I have held seven or more years.
    (b.) Around midnight, on July 29 and July 30, 2007, Emergency
    Services dispatched The Rhea County Sheriff’s Department to 3311 Blythes
    Ferry Road, APT. 8, in Rhea County Tennessee. The apartment is leased by
    Vanessa Rogers. Upon arriving at the scene, Sgt. Gerald Brewer, Rhea Co.
    Sheriff’s Department (RCSD), found the body of Gregory Keith Brown, white
    male, D.O.B. 02/27/67, dead in the bedroom of the apartment. The victim
    appeared to have a gunshot wound to the head. Vanessa Rogers leased the
    apartment.
    (c.) When Sgt. Brewer arrived at the scene Ciera Bennett and her
    mother Vanessa Rogers was [sic] present.
    (d.) Facts that I have ascertained from investigation indicate that Len
    Rogers had been greatly disturbed by his separation from his wife, Vanessa
    Rogers. This was aggravated by the relationship that Vanessa Rogers had
    developed with the victim, Gregory Keith Brown. The relationship began
    approximately eight weeks ago.
    (e.) Investigation indicated that Vanessa Rogers had applied for and
    had received an Order of Protection from Rhea County Family Court. Said
    Order of Protection required Len Rogers to have no contact with Vanessa
    Rogers or be around where she is located. Said Order was granted on May 2,
    2007, and required Len Rogers to divest himself of any weapons, including
    firearms. The bases for issuance of the Order were allegations of Len Roger[s]
    threatening to harm or kill Vanessa Rogers. Len Rogers was seen with
    firearms the day before the homicide.
    (f.) Subsequent to the Order of Protection, Len Rogers was arrested on
    the complaint of Vanessa Rogers, verified by witnesses for violation of the
    Order. When arrested he was found to have a rifle in the car in which he was
    driving.
    -10-
    (g.) Deputy David King investigated another complaint, on June 11,
    2007, by Vanessa Rogers about hang up phone calls. Deputy King was present
    at the Apartment when another phone call rang. Nothing was said but the
    caller ID indicated a certain number. When [D]eputy King left the apartment
    in his patrol car, he immediately observed [] Len Rogers driving his vehicle
    within 100 yards of the apartment. Deputy King stopped the vehicle and asked
    Len Rogers to see his phone. The number on the phone was identical to the
    number that had appeared on the [p]hone belonging to Vanessa Rogers.
    (h.) According to Vanessa Rogers, Len Rogers had been driving in
    front of her apartment without cause, almost daily since the issuance of the
    order of protection. Further, Vanessa Rogers had change[d] her telephone
    number and Len Rogers had been contacting her boyfriend, Gregory Keith
    Brown, by telephone in order to communicate with Vanessa Rogers. She
    would be present on occasion when these phone call[s] would be made. She
    would not talk to Len Rogers.
    (i.) On July 28, 2007, approximately 11:00 pm, Vanessa Rogers heard
    a noise outside her previously mentioned apartment. Her daughter Ciera
    Bennett went to investigate and looked out the peephole in the door. She saw
    Len Rogers outside the door. Vanessa immediately called the Sheriff’s
    Department. When deputies arrived, no one was found.
    (j.) According to Vanessa Rogers, at the time of the shooting, she was
    in the bedroom with the victim. She was standing next to the victim who was
    also standing and packing a suitcase. She heard a sharp popping sound and
    felt [a] stinging sensation on her face and hands. Instantly she observed the
    victim fall to the floor and appeared to be bleeding from the head. I found
    slivers of broken glass on the bed in the bedroom.
    (k.) At the scene, I found the deceased with an apparent bullet wound
    with entry point slightly above the victim’s ear. I saw a bullet hole in through
    the screen and thermo pane of the bedroom window of the room in which the
    body was found. Investigation of the area outside of the window [led] to the
    discovery of a 9mm Luger shell casing. The ground area around the bedroom
    window was wet, muddy, and contained what appeared to be moss type plants
    that had been disturbed by footprints.
    (l.) I also discovered an old unimproved roadway with heavy ruts
    approximately 50 to 75 yards away from the apartment. I discovered tire
    track[s] leading out from this road onto the pavement. There was a gouged out
    mark where a vehicle bottomed out getting out of that unimproved road.
    Besides the earth being disturbed in the road, there were plants that have been
    broken, torn with parts of the plants missing.
    -11-
    (m.) Len Rogers owns and operates a 1993 blue Honda Civic with
    Tennessee license plate number 087 DVQ. My fellow officers informed that
    this is the vehicle they see Len Rogers drive constantly.
    (n.) At approximately 2:00 a.m., Sgt. Gerald Brewer and Deputy Mike
    Alderson, of the RCSD, arrived at the residence of Len Rogers. They found
    Len Rogers at that residence. He was wearing pajama pants no shirt and no
    shoes. He was aware of the shooting at his wife’s apartment. Len Rogers’s
    residence is more particularly described in Exhibit “A” attached to and made
    part of this Affidavit as if copied verbatim herein.
    (o). Based upon the foregoing, I am of the opinion and belief that the
    offense of criminal homicide has been committed in Rhea County, Tennessee,
    and that there is probable cause that evidence of such criminal offense may be
    concealed on the premises of Len Rogers described more particularly in
    Exhibit “A” attached hereto.
    WHEREFORE, as such Law Enforcement Officer acting in
    performance of my duty, I pray that the court issue a warrant authorizing the
    search of the person of Len Rogers, along with his residence described in
    Exhibit “A”, including any and all vehicles, specifically a blue 1993 Honda
    Civic with Tennessee license plate number 087 DVQ, outbuildings, trailers
    and storage containers found on said property for any evidence of the crime of
    criminal homicide, in violation of T.C.A. 39-13-202 for items including
    firearms, clothing, shoes, ammunition, shell casing[s], bullets, soil samples,
    vegetation samples, shooting supplies, records including telephone records,
    firearm[’]s information, owner[’]s manuals, gun shot residue, and tires and/or
    tire impressions. Also, that said search be made day or night.
    B. Hearings
    On May 26, 2010, the trial court first addressed the Defendant’s various motions to
    suppress.8 The trial court determined that leaving a copy of the search warrant at jail where
    the Defendant was being housed and where he actually received it, rather than at the
    Defendant’s unoccupied residence, satisfied the requirements of Tennessee Rule of Criminal
    Procedure 41. The hearing was recessed to allow the Defendant time to file a supplement
    to his motion and raise additional grounds.
    8
    The Defendant had also filed a motion to suppress his statements to police, arguing that those statements
    were not voluntarily made. That issue was also addressed at this hearing. We will recount the testimony and
    findings relevant only to the issues presented on appeal.
    -12-
    On June 3, 2010, the trial court again heard argument of the various motion to
    suppress issues. During this hearing, the trial court addressed the Defendant’s argument that
    Mrs. Rogers’s information should not be afforded a presumption of reliability as a citizen
    informant because she had a motive to falsely accuse the Defendant. The Defendant relied
    on the case of State v. Williams, 
    193 S.W.3d 502
     (Tenn. 2006), to support his argument, but
    the trial court found that the Williams case was not applicable under these facts. In so
    concluding, the court reasoned, “It’s true the parties had had some issues but it’s not a
    situation where they were both standing there looking at an officer and they were about to --
    both were about to be arrested. But even -- so I find that her information is presumptively
    reliable. But even if so, if not so the affidavit does establish her basis of knowledge. And
    she gave specifics, her -- what she gave was specific enough . . . .”
    Det. Hall testified that he investigated the shooting death of the victim and signed as
    the affiant on the search warrant for the Defendant’s residence, obtaining “the information
    that was placed in the affidavit . . . .” Det. Hall acknowledged that he was approached by an
    investigator from the defense counsel’s office. At that time, when the investigator asked Det.
    Hall about the search warrant, Det. Hall said that he “did not think” he obtained the search
    warrant in the Defendant’s case, believing that Agent Muhouen was possibly the affiant. He
    clarified for the investigator that, without his “case file[,]” he could not say “for sure[.]”
    After later reviewing the file, Det. Hall realized that, although he did not personally type the
    search warrant, he did provide the information for the warrant to the assistant attorney
    general. He remembered several other officers being present at the time the warrant was
    prepared, including Deputy King and Agent Muhouen.
    The trial court ruled, “I accept [Det.] Hall’s explanation as to his conversation with
    [the defense’s] investigator.” The trial court again continued the hearing, allowing time for
    more research and preparation on the issue of the alleged false or misleading statements in
    the affidavit.
    A final hearing on the motion to suppress was held on September 30, 2010. Deputy
    King was first to testify at hearing. Deputy King said that the day following the murder, he
    provided Det. Hall with information in preparation of the search warrant. He was with Det.
    Hall and several others in the district attorney’s office at the time. The information he
    relayed involved another complaint by Vanessa Rogers on June 11, 2007, regarding hang up
    phone calls. He had gone to Mrs. Rogers’s residence on this complaint, and while there,
    another phone call came in. Deputy King wrote down the number from the caller ID on a
    notepad, but he did not know what happened to that piece of paper. When Deputy King left
    the apartment on that occasion, he observed the Defendant driving within one hundred yards
    of the apartment. He stopped the Defendant’s vehicle and asked to see the Defendant’s
    phone. He, and his supervisor who had just arrived at the stop, were unable to “figure [] out”
    -13-
    the Defendant’s phone to determine if it was the Defendant who called the apartment, so they
    let the Defendant go. Deputy King testified that he did not recall whether the number on the
    phone was the same as the number on the caller ID. He also did not recall telling Det. Hall
    that the numbers were the same and did not know where Det. Hall would have obtained that
    information. He said that he did not intentionally give false or misleading information to
    Det. Hall. Deputy King opined that it was “possible” that the statement in the affidavit,
    stating that the two phone numbers were the same, was false.
    On cross-examination, Deputy King clarified that he was not the one to actually see
    the Defendant on this occasion, that it was Mrs. Rogers’s daughter who pointed out the
    Defendant driving by the residence, and that he continued to talk with Mrs. Rogers and her
    daughter before leaving the residence. Deputy King stated that he was returning to the
    sheriff’s department when he encountered the Defendant. He turned around and initiated a
    traffic stop; the stop took place directly across from Mrs. Rogers’s apartment. Deputy King
    and his supervisor discussed the order of protection in place and whether the Defendant was
    in violation of that order by driving back and forth in front of Mrs. Rogers’s residence.
    Because the Defendant was driving on a public road, they decided to let him go.
    On redirect, Deputy King confirmed that he was unable to obtain a number from the
    Defendant’s phone and, therefore, could not have provided that information to Det. Hall.
    Det. Hall again testified that he took out a search warrant in this case, providing the
    information to the assistant district attorney for him to type the warrant. According to Det.
    Hall, there were several people present at this time, and Det. Hall also “gathered information”
    from Deputy King for preparation of the warrant. Det. Hall testified that Deputy King told
    him at the time that the number on the Defendant’s phone was identical to the number that
    was on Mrs. Rogers’s caller ID.
    On cross-examination, Det. Hall confirmed that he either obtained or observed all of
    the information provided in the search warrant, including information from Vanessa Rogers,
    her daughter, and from other fellow officers about violations of orders of protection and
    “things” of that nature. Det. Hall had no reason to believe that the information provided by
    Deputy King was incorrect. Det. Hall agreed that the language in the search warrant was not
    a direct quote but a summary of what Deputy King had told him. According to Det. Hall,
    when he included Deputy King’s statement in the affidavit, he had no intention of putting in
    a false or misleading statement. Det. Hall stated that he always endeavored to “put forth the
    facts” establishing probable cause as accurately as possible. He confirmed that he knew it
    was improper to put a false statement in an affidavit for a search warrant and that, if he was
    unsure about a certain piece of information, he would not include it therein. He averred that
    -14-
    paragraph (g.) of the affidavit, to the best of his recollection, was “exactly the information”
    he received from Deputy King.
    On redirect, Det. Hall was not aware if an order of protection was in place on June 11,
    2007, when the phone call was allegedly made to Vanessa Rogers. Det. Hall was shown
    Deputy King’s police report regarding the June 11 incident, but Det. Hall could not recall
    whether he reviewed the report in preparation of the warrant. It was noted at the hearing that,
    in the report, Deputy King did not state that the two numbers were the same.
    The trial court found the Defendant’s claim regarding a false or reckless statement in
    the affidavit to be without merit, ruling as follows:
    I cannot find here that there was a false statement made with intent to
    deceive, under the first category. I cannot find that there was a false statement
    recklessly made under the second category that would entitle [defense counsel]
    to be successful. Even if, even if the inquiry is the way that you were arguing
    it, that is look at -- trying to look at his phone to see if there was a number
    recently called that had called Mrs. Rogers’ house, even if that were the case,
    I still don’t find that the [D]efendant has shown a false statement made with
    intent to deceive, and I don’t find that a false statement was recklessly made.
    Even if it were recklessly made, it was not essential to probable ca[u]se. There
    are numbers of other statements made, (a.) through (o.), I believe, ever how
    many there are that would have established probable cause without this
    particular statement.
    C. Standard of Review
    On review, an appellate court may consider the evidence presented at the suppression
    hearing as well as at trial in determining whether the trial court properly denied a pretrial
    motion to suppress. State v. Henning, 
    975 S.W.2d 290
    , 297-99 (Tenn. 1998). 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.”
    State v. Meeks, 
    262 S.W.3d 710
    , 722 (Tenn. 2008). 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. 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. Meeks,
    262 S.W.3d at 722.
    -15-
    D. Probable Cause
    The Fourth Amendment to the United States Constitution requires that search warrants
    issue only “upon probable cause, supported by Oath or affirmation.” Article I, section 7 of
    the Tennessee Constitution precludes the issuance of warrants except upon “evidence of the
    fact committed.” Therefore, under both the federal and state constitutions, no warrant is to
    be issued except upon probable cause. Illinois v. Gates, 
    462 U.S. 213
     (1983); State v.
    Jacumin, 
    778 S.W.2d 430
    , 431-32 (Tenn. 1989). Probable cause has been defined as a
    reasonable ground for suspicion, supported by circumstances indicative of an illegal act.
    Henning, 975 S.W.2d at 294.
    Tennessee requires a written and sworn affidavit, “containing allegations from which
    the magistrate can determine whether probable cause exists,” as “an indispensable
    prerequisite to the issuance of a search warrant.” Id. A finding of probable cause made by
    an issuing magistrate is entitled to great deference. State v. Yeomans, 
    10 S.W.3d 293
    , 296
    (Tenn. Crim. App. 1999) (citing State v. Melson, 
    638 S.W.2d 342
    , 357 (Tenn. 1982)).
    Therefore, the standard to be employed in reviewing the issuance of a search warrant is
    “whether, in light of all the evidence available, the magistrate had a substantial basis for
    finding probable cause.” State v. Meeks, 
    876 S.W.2d 121
    , 124 (Tenn. Crim. App. 1993).
    1. Informant Status of Mrs. Rogers
    The Defendant, again relying on Williams, 
    193 S.W.3d 502
    , argues that Mrs. Rogers’s
    statements should not have been given a presumption of reliability. According to the
    Defendant, because of the ongoing contentious divorce, Mrs. Rogers had a motive to falsely
    accuse the Defendant, and therefore, she was not a citizen informant and nothing in the
    affidavit established her reliability. The State responds that the trial court correctly
    determined that Mrs. Rogers should get a presumption of reliability as a citizen informant.
    However, the State continues that, even if Mrs. Rogers is not treated as a citizen informant,
    the affidavit nonetheless satisfies the two-pronged “basis of information” and “reliability”
    test.
    When a court reviews an affidavit for probable cause, the court must first determine
    whether the informant was a citizen informant, a criminal informant, or neither. Williams,
    193 S.W.3d at 507. A citizen informant is a citizen or bystander who “acts with an intent to
    aid the police in law enforcement because of his concern for society or for his own safety.”
    Id.; State v. Stevens, 
    989 S.W.2d 290
    , 294 (Tenn. 1999) (quoting State v. Smith, 
    867 S.W.2d 343
    , 347 (Tenn. Crim. App. 1993)). Additionally, a citizen informant “does not expect any
    gain or concession in exchange for his information.” Stevens, 989 S.W.2d at 294. The
    information provided by the citizen informant is presumed reliable. Id. at 293. In contrast,
    a criminal informant is someone from the criminal milieu, or, in other words, a “citizen with
    ties to the criminal community.” Williams, 193 S.W.3d at 507; Melson, 638 S.W.2d at 355.
    -16-
    Often, a criminal informant is described as a citizen who supplies information to the police
    “in exchange for some concession, payment, or simply out of revenge against the subject.”
    Stevens, 989 S.W.2d at 294. Since the criminal informant might have a “motive to
    exaggerate, falsify, or distort the fact to serve [personal] ends,” the information must be
    examined by a magistrate under a two-part analysis: (1) the affidavit must show the basis for
    the informant’s knowledge; and (2) the affidavit must show the reliability of the informant
    or the information (“Jacumin test”). Id. at 293-94 (citing State v. Cauley, 
    863 S.W.2d 411
    ,
    417 (Tenn.1993)); Jacumin, 778 S.W.2d at 436.
    In Williams, our supreme court recognized that information may also be provided by
    someone who is neither a criminal informant nor a pure citizen informant but is instead
    motivated to inform on a suspect out of personal bias or revenge. 193 S.W.3d at 507-08; see
    also State v. Siliski, 
    238 S.W.3d 338
    , 367 (Tenn. Crim. App. 2007). In such cases, absent
    “additional particularized information in the affidavit” to bolster or corroborate that the
    information was supplied by a concerned citizen informant, the affidavit must satisfy the
    two-pronged “basis of information” and “reliability” test for information supplied by a
    criminal informant. Williams, 193 S.W.3d at 507-08 (citing Stevens, 989 S.W.2d at 294-95);
    see Siliski, 238 S.W.3d at 367.
    Williams indicates that our supreme court has accepted the “modern view . . . that as
    a general proposition any person purporting to be a crime victim or witness may be presumed
    reliable, though the police must remain alert to the existence of any circumstances making
    that presumption inoperative in a particular case.” 2 Wayne R. LaFave, Search and Seizure,
    § 3.4(a) (5th ed.) (citing cases). In Williams, the informant provided information to police
    about her boyfriend’s possession of cocaine only after she herself had been arrested for
    domestic assault. The court held that where the information regarding the defendant’s drug
    possession was given by his girlfriend “only when she was in the midst of a domestic
    disturbance that led to her arrest and the arrest of the defendant,” and the investigator “did
    not consider whether she was acting for revenge or a similar motivation,” such “information
    was not presumptively reliable.” Williams, 193 S.W.3d at 508. The court continued that the
    affidavit established probable cause under the two-prong Jacumin test because the affidavit
    established the informant’s basis of knowledge prong and the information’s reliability,
    including that the information was “corroborated by . . . defendant’s prior drug-related
    conviction.” Id.
    In adopting this modern view, the Williams court relied on the case of United States
    v. Phillips, 
    727 F.2d 392
     (5th Cir. 1984). In Philips, the defendant, who was convicted of
    possession of an unregistered sawed-off shotgun, possession of a firearm which had been
    made into a sawed-off shotgun without complying with the provisions of the Gun Control
    -17-
    Act of 1968, and possession of a firearm by a convicted felon, moved to suppress evidence
    seized under the search warrant. The Williams court analyzed as follows:
    In [Phillips,] for instance, the affidavit in support of a search warrant
    was based on information from an estranged wife whose husband had
    threatened to shoot her. The court observed that, unlike “citizen informants,”
    some informants may be involved with the defendant whose person or
    residence is to be searched and may “have personal reasons for giving shaded
    or otherwise inaccurate information to law enforcement officials . . . .” Id. at
    397 (quoting United States v. Flynn, 
    664 F.2d 1296
    , 1302-03 (5th Cir. 1982)).
    The court emphasized that the wife “had recently quarreled with and left her
    husband” and that she did “not fit comfortably within the description of an
    ‘eyewitness-bystander.’” [Id.] Although the court found that the information
    was not “presumptively reliable,” it went on to conclude that probable cause
    had been established under a totality of circumstances analysis. Id.; see also
    Hodsdon v. State, 
    698 P.2d 1224
    , 1228 (Alaska Ct. App.1985) (court
    determined that informant was “somewhere between a citizen informant and
    a police informant” and thus, applied traditional probable cause analysis).
    Williams, 193 S.W.3d at 507-08.
    Following Williams, this court was presented with a similar argument in Siliski. In
    Siliski, the informant was a former employee of the defendant’s, who quit due to
    unacceptable working conditions and low pay. The employee thereafter reported the state
    of the defendant’s kennels and animals, and the defendant was convicted of nine counts of
    animal cruelty. On appeal, the defendant argued that search warrant was not supported by
    probable cause because the employee, “at the time she gave the information, had an axe to
    grind against the [d]efendant.” This court held that the defendant’s argument was “sheer
    speculation[,]” as there was no basis for concluding “that an employee who feels she is
    underpaid and called to work in unacceptable conditions automatically has an ‘axe to grind.’”
    Siliski, 238 S.W.3d at 367. The Siliski court concluded that the record supported the
    determination of the trial court that the employee was a citizen informant and, thus, presumed
    to be reliable. Id.
    The trial court in this case found Mrs. Rogers to be a citizen informant and
    presumptively reliable and overruled that part of the Defendant’s motion to suppress. The
    trial court distinguished Williams, reasoning that although “the parties had had some
    issues[,]” this was not a case where the Defendant and Mrs. Rogers were about to be arrested
    when Mrs. Rogers offered the information. The trial court further determined that, even if
    -18-
    Mrs. Rogers’s information was not afforded the presumption, the affidavit established her
    basis of knowledge” and the information she provided was “specific enough[.]”
    We cannot accept wholesale the Defendant’s argument that parties going through a
    contentious divorce cannot be considered citizen informants if they are a victim or witness
    to a crime simply because that crime was allegedly committed by the other party involved.
    However, in cases such as these, if the police know of possible bias or motive to falsify, then
    police should take the additional steps outlined in Williams to ensure the informant’s
    reliability, i.e, “additional particularized information in the affidavit” is needed to bolster or
    corroborate that the information was supplied by a concerned citizen informant. This is not
    to suggest, however, that all “domestic violence victims are undeserving of the presumption
    of veracity accorded other victim-witnesses,” for such is certainly not the case. LaFave §
    3.4(a) (citing United State v. Patane, 304 F3.d 1013 (10th Cir. 2002)). Accordingly, what
    the police should be concerned with is an apparent motive to falsify or allegations made out
    of spite. Id. (citing cases).
    We agree with the trial court that Mrs. Rogers should be classified as a citizen
    informant in this case. Based upon the circumstances present to the officers, Mrs. Rogers
    appeared to be a victim of domestic violence, including threats, harassing phone calls, and
    stalking by the Defendant, all of which had been well documented over the proceeding
    months. It would be hard to fathom where a divorce of that nature would not be
    characterized as “contentious.” The police were faced with a victim, Mrs. Rogers’s new
    boyfriend, who suffered a gunshot wound to the head in Mrs. Rogers’s bedroom.
    Accordingly, we conclude that the record supports the determination of the trial court that
    Mrs. Rogers was a citizen informant and, thus, presumed to be reliable. Accordingly, there
    need be no further showing regarding her veracity or basis of knowledge. Nonetheless, even
    if Mrs. Rogers were not afforded a presumption of reliability, we agree with the trial court
    that the affidavit is also sufficient to satisfy the Jacumin test, providing the basis of Mrs.
    Rogers’s knowledge and including specifics of the couple’s tumultuous relationship,
    corroborated by police investigation. The information provided in the affidavit was
    sufficient to establish probable cause for the issuance of a search warrant.
    2. False Statement
    The Defendant also asserts that the search warrant was obtained based on an affidavit
    that contained a materially false statement and, therefore, the evidence seized from the
    residence should have been suppressed on that basis. Specifically, the Defendant argued that
    the statement attributed to Deputy King in the affidavit—that Deputy King said that the
    number he saw on the Defendant’s phone was identical to the number he observed on Mrs.
    Rogers’s caller ID—was clearly false. The Defendant submits that this statement of Deputy
    King’s was essential to the establishment of probable cause, as it was the only direct link
    -19-
    from an unbiased source that would establish that the Defendant had been contacting Mrs.
    Rogers, and that the statement was included to mislead the magistrate. The State responds
    that Deputy King testified that he did not intentionally give false or misleading information
    to Det. Hall and that Det. Hall testified that he did not intentionally include false or
    misleading information in the affidavit. The State continues, even if it was mistakenly
    included, it was not an intentional or reckless material misrepresentation.
    In Franks v. Delaware, the United States Supreme Court held that the fruits of a search
    should be excluded when the affidavit in support of the search warrant contains deliberately
    or recklessly false statements by the affiant, which are material to the establishment of
    probable cause. 
    438 U.S. 154
    , 172-73 (1978). The “fraudulent misrepresentation of a
    material fact will invalidate a search warrant.” State v. Little, 
    560 S.W.2d 403
    , 406 (Tenn.
    1978). Our supreme court has defined two situations in which false information within the
    supporting affidavit mandates the application of the exclusionary rule despite the affidavit’s
    facial sufficiency:
    (1) a false statement made with intent to deceive the [c]ourt, whether material
    or immaterial to the issue of probable cause, and
    (2) a false statement, essential to the establishment of probable cause,
    recklessly made. Recklessness may be established by showing that a statement
    was false when made and that affiant did not have reasonable grounds for
    believing it, at that time.
    Id. at 407. Allegations of negligence or innocent mistakes are insufficient to invalidate the
    search warrant. Yeomans, 
    10 S.W.3d 293
    , 297 (Tenn. Crim. App. 1999). “[I]n order to be
    entitled to relief, a defendant must show that the reckless statements were necessary to the
    finding of probable cause.” Id. The defendant has the burden to establish the allegation of
    perjury or reckless disregard by a preponderance of the evidence. Id. (citing Franks v.
    Deleware, 438 U.S. at 156).
    From the testimony at the motion to suppress hearing, it was apparent that Deputy
    King was never able to determine if the two phone numbers were the same. Thus, the
    statement was false at the time it was made by Det. Hall. However, Deputy King stated that
    he did not intentionally give false or misleading information to Det. Hall. Det. Hall
    continued to aver at the hearing that Deputy King made the statement to him that the number
    on the Defendant’s phone was identical to the number that was on Mrs. Rogers’s caller ID
    and that he had no reason to believe that the information was incorrect. Det. Hall also
    testified that, by including the statement from Deputy King in the affidavit, he had no
    intention of including false or erroneous information. The trial court accredited the officers’
    -20-
    testimony that the statement was not made or included in the affidavit with the intent to
    deceive the magistrate. Because this was a credibility determination, and in the absence of
    proof to the contrary of the officers’ intent, we conclude that the evidence does not
    preponderate against the trial court’s finding that there was no intentionally false statement
    in the affidavit. See Odom, 928 S.W.2d at 23.
    We must consider, then, whether the statement was recklessly made, and if so,
    whether it was essential to establishing probable cause. See Little, 560 S.W.2d at 407.
    Again, “[r]ecklessness may be established by showing that a statement was false when made
    and that affiant did not have reasonable grounds for believing it, at that time.” Id. The
    record reflects that statement was false at the time it was made; however, in order to establish
    recklessness, the Defendant must also demonstrate that the affiant did not have reasonable
    grounds for believing it, at that time. When analyzing false statements in a facially valid
    supporting affidavit, we do not look beyond the conduct of the affiant. See Franks, 438 U.S.
    at 172 (holding “[t]he deliberate falsity or reckless disregard whose impeachment is
    permitted today is only that of the affiant, not of any nongovernmental informant”); Little,
    560 S.W.2d at 406-07 (noting that to foreclose inquiry into false statements in a supporting
    affidavit would effectively transfer the discretion which rests with the magistrate to the
    affiant). Det. Hall confirmed at the hearing that he either obtained or observed all of the
    information provided in the search warrant, including information from Mrs. Rogers, her
    daughter, and from other fellow officers about violations of orders of protection and “things”
    of that nature. Thus, Det. Hall was aware that Mrs. Rogers had obtained orders of protection
    against the Defendant, that she frequently complained he violated those orders, and that
    police investigation of those complaints often led to corroboration that a violation had in fact
    taken place. He testified that he had no reason to believe that the information provided to
    him by Deputy King was incorrect. Given the evidence of record, we conclude that Det. Hall
    had reasonable grounds for believing the facts as represented in the affidavit. Therefore, the
    evidence does not preponderate against the trial court’s finding that the statement was not
    recklessly made. See, e.g., State v. Richard M. Parrot and Edith L. Parrott, No.
    03C01-9709-CR-00408, 
    1999 WL 320712
    , at *5 (Tenn. Crim. App. May 21, 1999) (affiant
    stated in affidavit that officers went with informant to the defendants’ home and observed
    informant meet with one of the defendants, but at the time he sought to have the warrant
    signed, affiant had not spoken with the officer in charge of personally observing the meeting
    and did not know that the officer had failed to observe the meeting; trial court found that the
    statements in affidavit were neither intentionally nor recklessly false but, instead, resulted
    from the “careless composition of conclusory facts”). Moreover, we likewise agree that,
    even without the erroneous statement, the affidavit contained sufficient information to
    establish probable cause. The Defendant is not entitled to relief on this issue.
    3. Firsthand Knowledge
    -21-
    In a related issue, the Defendant submits that Det. Hall had no firsthand knowledge
    of the important facts in the affidavit. Specifically, he states, “[t]he affidavit was invalid on
    its face due to the fact that it was based upon hearsay information with no showing of a basis
    of knowledge or reliability.” The Defendant notes that the affidavit in question relies on
    information from three sources: (1) the affiant’s “‘investigation,’ although no showing of
    what this consisted of was made”; (2) information from Deputy King, which information is
    shown to have been false; and (3) information from Mrs. Rogers, with no showing of her
    reliability. The affidavit may contain hearsay and need not reflect the direct personal
    observations of the affiant. Melson, 638 S.W.2d at 354. As we have determined that the
    Defendant’s issues regarding the statement attributed to Deputy King and the presumption
    of reliability to be afforded Mrs. Rogers have no merit, we likewise conclude that this issue
    is also meritless.
    E. Service of Search Warrant
    As his final suppression issue, the Defendant contends that no warrant was left with
    him or at his residence as required by Tennessee Rule of Criminal Procedure 41. The
    Defendant, who was incarcerated in the county jail at the time of the search, notes that he did
    not receive a copy of the search warrant until after the search occurred. The State responds
    that leaving a copy of the search warrant at the jail was sufficient because the Defendant was
    unavailable at his residence.
    Tennessee Rule Criminal Procedure 41(e)(4) governs leaving a copy of the search
    warrant and a receipt for any property taken. The Rule states,
    The officer executing the warrant shall:
    (A) give to the person from whom or from whose premises the property
    was taken a copy of the warrant and a receipt for the property; or
    (B) shall leave the copy and receipt at a place from which the property
    was taken.
    Tenn. R. Crim. P. 41(e)(4). Rule 41(g)(6) provides that serving officers’ failure “where
    possible-[to] leave a copy of the warrant with the person or persons on whom the search
    warrant was served” requires exclusion of evidence seized during the warrant’s execution.
    Tenn. R. Crim. P. 41(g)(6). Personal service of a search warrant upon a defendant, therefore,
    is not strictly necessary for compliance with Rule 41(e). See State v. Watson, 
    227 S.W.3d 622
    , 645 (Tenn. Crim. App. 2006) (holding that service of a search warrant upon a
    defendant’s counsel satisfied Rule 41’s notice requirement).
    -22-
    The intent of Rule 41 is “‘to secure the citizen against carelessness and abuse in the
    issuance and execution of search warrants.’” State v. Coffee, 
    54 S.W.3d 231
    , 233 (Tenn.
    2001) (quoting Talley v. State, 
    345 S.W.2d 867
    , 869 (Tenn. 1961)). The purpose of
    providing notice to the owner of seized property is to notify the owner of the source of the
    seizure so that the owner can pursue available remedies for its return. City of West Covina
    v. Perkins, 
    525 U.S. 234
    , 240 (1999). However, “the prevailing view is that noncompliance
    with . . . [notice] does not compel exclusion of the evidence obtained pursuant to the warrant,
    at least absent prejudice to the defendant or a deliberate disregard of the notice provision.”
    LaFave § 4.12(b) (citing cases).
    We agree with the State that this case is controlled by State v. Henretta, 
    325 S.W.3d 112
    , 140-41 (Tenn. 2010), and not the cases cited by the Defendant, Johnson v. State, 348
    S.W.32d 295 (Tenn. 1961), and State v. Steele, 
    894 S.W.2d 318
     (Tenn. Crim. App. 1994).
    In Henretta, the inmate defendant was not given a copy of the search warrant at the time of
    its execution, and blood, hair, and saliva samples were collected from the defendant. It was
    not disputed that copy of the warrant was left with a prison official at the facility in which
    the defendant was incarcerated or that the defendant received a copy of the warrant through
    the prison’s mail system about one week after the search. The defendant argued that this
    method of service ran afoul of the requirements of Rule 41 and, as a result, required
    suppression of the evidence obtained pursuant to the warrant. The defendant attested that
    there was no prison rule prohibiting officers from handing him a copy of the warrant, and as
    such was not prohibited, they should have given him a copy personally. Our supreme court
    concluded that, “even if there was no prison rule forbidding such personal service at the time
    of the search, the method of service utilized was adequate to satisfy the requirements of Rule
    41[].”9 Henretta, 325 S.W.3d at 140-41.
    The Defendant attempts to distinguish his case from Henretta because he was in the
    county jail rather than prison and the sheriff’s department employees could have easily
    accessed him. The Defendant also notes that the officers in Henretta “did as instructed by
    prison officials and left a copy for the defendant because they believed that they could not
    personally hand it to [him].” The Defendant argues that, in his case, the State provided “no
    explanation for the failure to serve him . . . .”
    We disagree with the Defendant’s attempts to distinguish his case from Henretta. The
    Henretta court cited with approval the case of State v. Johnny Ray Roach, No. C.C.A. 4,
    
    1989 WL 22815
     (Tenn. Crim. App. Mar. 15, 1989). In Roach, the defendant was arrested
    and taken to jail while police officers were searching his premises pursuant to a search
    warrant. Although the defendant was shown the search warrant at the scene, he was not
    9
    Our supreme court analyzed the issue under a prior version of the rule.
    -23-
    served with a copy of the warrant at the time of the search. However, upon completion of
    the search, an officer took a copy of the warrant to the jail where the defendant was
    incarcerated and placed the copy in the defendant’s property bag. Later, the warrant was
    transmitted to the defendant’s attorney by the jailor in charge of the property bag. This court
    held that delivering the warrant to the defendant in this way satisfied the service requirements
    of Rule 41. Id. at *2. The Defendant likewise attempts to distinguish his case from Roach,
    noting that in Roach, the defendant was shown a copy of the search warrant at the time it was
    executed and the defendant was informed a copy was being placed in his property bag.
    Relying on our holding in Roach, the Henretta court concluded “that even if there was
    no prison rule forbidding such personal service at the time of the search, the method of
    service utilized was adequate to satisfy the requirements of Rule 41[].” 325 S.W.3d at 140
    (emphasis added). Just as in Henretta, we find no meaningful distinction between the method
    of service employed in Roach and the method employed in the matter before us. “In each
    instance, the defendant was incarcerated, and the warrant was served upon him indirectly via
    prison officials, although there was no indication that circumstances precluded personal
    service.” Id. at 141. Accordingly, we hold that, given the Defendant’s incarcerated status,
    delivery of the warrant to jail officials immediately upon its execution satisfied the
    requirements of Rule 41. The Defendant’s motion to suppress was properly denied.
    II. Sufficiency of the Evidence
    The Defendant has challenged the sufficiency of the evidence supporting his
    convictions for premeditated murder, second degree murder, and reckless endangerment.
    Specifically, he contends that there was neither sufficient evidence to establish his identity
    as the shooter nor that the murder was premeditated.
    An appellate court’s standard of review when a 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.” Id.; State v. Tuggle, 
    639 S.W.2d 913
    ,
    -24-
    914 (Tenn. 1982). “This [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). The standard of
    proof is the same, whether the evidence is direct or circumstantial. State v. Dorantes, 
    331 S.W.3d 370
    , 379 (Tenn. 2011). Likewise, appellate review of the convicting evidence “‘is
    the same whether the conviction is based upon direct or circumstantial evidence.’” Id.
    (quoting State v. Hanson, 
    279 S.W.3d 265
    , 275 (Tenn. 2009)). 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 jury convicted the Defendant as charged in Count 1 of the first degree
    premeditated murder of the victim. First degree murder, in this instance, is defined as “[a]
    premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1). A
    person acts intentionally “when it is the person’s conscious objective or desire to engage in
    the conduct or cause the result.” Tenn. Code Ann. § 39-11-302(a).
    “[P]remeditation” is an act done after the exercise of reflection and judgment.
    “Premeditation” means that the intent to kill must have been formed prior to
    the act itself. It is not necessary that the purpose to kill pre-exist in the mind
    of the accused for any definite period of time.
    Tenn. Code Ann. § 39-13-202(d).
    In Count 2, as a lesser-included offense of first degree felony murder (with the
    underlying felony being the attempted murder of Vanessa Rogers), the jury convicted the
    Defendant of the second degree murder of the victim. Second degree murder is defined as
    the knowing killing of a victim. See Tenn. Code Ann. § 39-13-210(a)(1). Our supreme court
    has determined that second degree murder is a result-of-conduct offense. See State v.
    Ducker, 
    27 S.W.3d 889
    , 896 (Tenn. 2000). Accordingly, “[a] person acts knowingly with
    respect to a result of the person’s conduct when the person is aware that the conduct is
    reasonably certain to cause the result.” Tenn. Code Ann. § 39-11-302(b).
    The Defendant also challenges the sufficiency of the evidence for his conviction of
    reckless endangerment in Count 3 as a lesser-included offense of the attempted first degree
    murder of Mrs. Rogers. A person commits reckless endangerment “who recklessly engages
    in conduct that places or may place another person in imminent danger of death or serious
    bodily injury.” Tenn. Code Ann. § 39-13-103(a). Our supreme court has held that, “for the
    threat of death or serious bodily injury to be ‘imminent,’ the person must be placed in a
    reasonable probability of danger as opposed to a mere possibility of danger.” State v. Payne,
    -25-
    
    7 S.W.3d 25
    , 28 (Tenn. 1999) (citing State v. Fox, 
    947 S.W.2d 865
    , 866 (Tenn. Crim. App.
    1996)). The court further held that “the term ‘zone of danger’ may be employed to define
    that area in which a reasonable probability exists that the defendant’s conduct would place
    others in imminent danger of death or serious bodily injury if others were present in that zone
    or area.” Id.
    First, with respect to the Defendant’s identity as the perpetrator of these offenses, the
    Defendant notes that there were no eyewitnesses to the shooting, that there was an
    explanation for the matching shell casings found at his residence and, beyond the matching
    shell casings, that there was no credible physical evidence to place him at the scene. The
    identity of the perpetrator is an essential element of any crime. State v. Rice, 
    184 S.W.3d 646
    , 662 (Tenn. 2006) (citing State v. Thompson, 
    519 S.W.2d 789
    , 793 (Tenn. 1975)). The
    State has the burden of proving “the identity of the defendant as the perpetrator beyond a
    reasonable doubt.” State v. Sneed, 
    908 S.W.2d 408
    , 410 (Tenn. Crim. App. 1995)). The
    identity of the defendant as the perpetrator may be established by direct evidence,
    circumstantial evidence, or a combination of the two. Thompson, 519 S.W.2d at 793. The
    identification of the defendant as the perpetrator is a question of fact for the jury after
    considering all the relevant proof. State v. Strickland, 
    885 S.W.2d 85
    , 87 (Tenn. Crim. App.
    1993) (citing State v. Crawford, 
    635 S.W.2d 704
    , 705 (Tenn. Crim. App. 1982)).
    The Defendant correctly notes that he did provide the jury with an explanation
    regarding the presence of the matching shell casings found at his house; however, what he
    fails to recognize is that the jury was free to disregard his explanation. The presence of
    matching shell casings at his house directly linked him with the shooting. Moreover, the
    Defendant fails to acknowledge that his identity can also be established by circumstantial
    evidence. There was ample testimony that the Defendant stalked and harassed Mrs. Rogers
    and members of her family following the couple’s separation. Once Mrs. Rogers began to
    date the victim, the Defendant also frequently called the victim, calling him multiple times
    on the day of his murder. The proof also connected the Defendant’s car to the scene,
    including the presence of tire tracks with similar characteristics and fresh scrapes on the
    undercarriage of the Defendant’s vehicle. Other proof showed that the Defendant possessed
    a 9 millimeter weapon, likely a Star Super that he had stolen from his pawn shop employer.
    The Defendant’s attack is essentially an argument as to the credibility of the witnesses and
    assertions that conflicts in the proof must be construed in favor of the Defendant. Of course,
    this argument must fail in light of the well established law set forth above. The evidence was
    sufficient for a rational jury to identify the Defendant, beyond a reasonable doubt, as the
    shooter.
    Next, the Defendant challenges the element of premeditation. He argues that, because
    he was found guilty of first degree premeditated murder, not felony murder, any
    -26-
    premeditation would have to involve the victim, not Mrs. Rogers. The State responds that
    the evidence is sufficient to support the Defendant’s conviction for first degree premeditated
    murder. According to the State, even if the Defendant were not attempting to kill the victim,
    but instead Mrs. Rogers, he did strike and kill Brown, and under a theory of “transferred
    intent,” the Defendant is still guilty.
    The element of premeditation is a factual question to be decided by a jury from all the
    circumstances surrounding the killing. State v. Davidson, 
    121 S.W.3d 600
    , 614 (Tenn.
    2003). Although a jury may not engage in speculation, it may infer premeditation from the
    manner and circumstances of the killing. Bland, 958 S.W.2d at 660. Our supreme court has
    held that factors demonstrating the existence of premeditation include, but are not limited to,
    the following: the use of a deadly weapon upon an unarmed victim, the particular cruelty of
    the killing, declarations by the defendant of an intent to kill, evidence of procurement of a
    weapon, preparations before the killing for concealment of the crime, destruction or secretion
    of evidence of the killing, and calmness immediately after the killing. See Davidson, 121
    S.W.3d at 614; Bland, 958 S.W.2d at 660. Additional factors cited by this court from which
    a jury may infer premeditation include lack of provocation by the victim and the defendant’s
    failure to render aid to the victim. See State v. Lewis, 
    36 S.W.3d 88
    , 96 (Tenn. Crim. App.
    2000). Further, “[e]stablishment of a motive for the killing is a factor from which the jury
    may infer premeditation.” State v. Leach, 
    148 S.W.3d 42
    , 54 (Tenn. 2004).
    The State’s theory on appeal is still, at least in part, that the Defendant intended to kill
    Mrs. Rogers but instead killed the victim, citing to Millen v. State, 
    988 S.W.2d 164
     (Tenn.
    1999), in support of that proposition. In Millen, our supreme court considered whether a
    defendant who intends to kill a specific person but instead kills a bystander is guilty of first
    degree premeditated and deliberate murder via application of the transferred intent doctrine.10
    Id. at 164. The supreme court noted that transferred intent is a common law doctrine, and
    its application under the Criminal Code “is, at best, unclear, at least with regard to first
    degree murder.” Id. at 166. Ultimately, the court held that “unintended victim” cases are
    most appropriately prosecuted as felony murder; however, resort to the transferred intent
    doctrine is not necessary to establish premeditated and deliberate first degree murder. Id. at
    167-68. In so holding, the court said,
    The legislature has broadly defined an “intentional” act as: “a person who acts
    intentionally with respect to the nature of the conduct or to a result of the
    conduct when it is the person’s conscious objective or desire to engage in the
    10
    Millen arose under the first degree murder statute which required a killing be intentional, premeditated,
    and deliberate to constitute the offense. 988 S.W.2d at 164, n.2; see Tenn. Code Ann. § 39-13-202(a)(1)
    (1991) (amended 1995).
    -27-
    conduct or cause the result.” Tenn. Code Ann. § 39-11-302(a) (1991)
    (emphasis added). A plain reading of this statute as applied to first degree
    murder indicates that a defendant’s conscious objective need not be to kill a
    specific victim. Rather, the statute simply requires proof that the defendant’s
    conscious objective was to kill a person, i.e., “cause the result.” In short, if the
    evidence demonstrates that the defendant intended to “cause the result,” the
    death of a person, and that he did so with premeditation and deliberation, then
    the killing of another, even if not the intended victim (i.e., intended result), is
    first degree murder.
    Id. at 168.
    However, the principles of Millen are not dispositive of the case at bar. In this case,
    the jury was charged with the first degree premeditated murder of the victim, the felony
    murder of the victim during the attempted murder of Mrs. Rogers, and the attempted murder
    of Mrs. Rogers. The instructions to the jury were clear.11 The jury by its verdict clearly
    rejected a notion of transferred intent, i.e., that the Defendant intended to shoot Mrs. Rogers
    but instead hit the victim. Thus, we will not resort to a theory of transferred intent in this
    case and agree with the Defendant that to uphold the Defendant’s conviction for first degree
    premeditated murder, the State must have established beyond a reasonable doubt that the
    killing of the victim was premeditated.
    The Defendant, citing State v. Jackson, 
    173 S.W.3d 401
    , 409-410 (Tenn. 2005)
    (affirmed reduction of defendant’s premeditated murder conviction to conviction for second
    degree murder because element of premeditation was lacking), argues that the proof in this
    case established none of the factors that would demonstrate premeditation. We disagree.
    After viewing the evidence in a light most favorable to the prosecution, we conclude
    that there was sufficient evidence for the jury to have found that the Defendant intentionally
    and with premeditation killed the victim. The Defendant had a motive for the killing—he
    had recently separated from Mrs. Rogers and was jealous of her relationship with her new
    boyfriend, the victim. Following the couple’s separation, the Defendant stalked and harassed
    Mrs. Rogers, threatening to kill her and several of her family members. Upon learning of the
    victim’s and Mrs. Rogers’s relationship, the Defendant began to harass the victim, including
    calling him multiple times on the day of the murder. Prior to the evening of the murder, the
    Defendant had taken pictures of the victim’s and Mrs. Rogers’s vehicles parked in front of
    11
    After Millen, the Tennessee Pattern Jury Instructions were amended to conform with the language
    contained therein. See T.P.I — Crim. 7.01. That instruction is absent from the premeditated murder charge
    given to the jury in this case.
    -28-
    Mrs. Rogers’s residence. The State’s theory at trial was that the armed Defendant traveled
    to Mrs. Rogers’s residence late at night, and both cars—the victim’s and Mrs.
    Rogers’s—were present. Upon these observations, the Defendant proceeded to a nearby side
    street, parked his car in a roadbed, and taking his weapon with him, proceeded to peer into
    Mrs. Rogers’s bedroom window. There was testimony, based upon the moss that was
    “mashed down” just outside the bedroom window, “that someone had been standing right
    there at the edge of the window.” The window was partially unobstructed, so the Defendant
    could see the victim and Mrs. Rogers standing side by side. There was testimony from which
    the jury could infer that the Defendant was proficient with weapons, including handguns,
    despite his assertions to the contrary. The handgun was never recovered. Although there
    was a weapon inside Mrs. Rogers’s bedroom at the time, testimony established that the
    weapon was holstered and had not been fired. Based upon phone records from the
    Defendant’s home phone, the Defendant accomplished all of this in under one hour. In
    phone conversations immediately following the shooting, the Defendant was described as
    normal and calm. The Defendant also stated during his phone conversation with Witherow
    that he was going to note the time of call, in an effort to establish an alibi, if one was needed.
    Considering all of these factors, we conclude that the evidence was sufficient to establish the
    elements of premeditation and intent. Accordingly, the evidence is sufficient to support all
    of the Defendant’s convictions.
    As a separate issue, the Defendant also submits that the verdicts were inconsistent in
    that a rational jury could not find the Defendant guilty of first degree murder of the victim
    and also find him guilty of a lesser-included offense of felony murder (second degree
    murder). Specifically, he argues,
    [The Defendant] was indicted on two counts of murder, which espoused
    completely different theories. The first is that [the Defendant] intentionally
    shot the victim. The second is that [the Defendant] was attempting to shoot
    [Mrs. Rogers] and, instead of shooting her, shot the victim. As [the
    Defendant] could not have been convicted of premeditated first degree murder
    and felony murder, it appears the jury did not understand the essential elements
    of the crimes for which [the Defendant] was ultimately convicted.
    The State responds that this court should not speculate as to the jury’s rationale for
    convicting the Defendant of one count of premeditated murder and one count of second
    degree murder.
    The Defendant was charged with alternative theories of killing the same victim in
    Counts 1 and 2, (premeditated and felony murder). The underlying felony in Count 2 was
    the attempted murder of Mrs. Rogers. When the jury determined that the Defendant lacked
    -29-
    the requisite intent to commit the underlying felony, i.e., lacked any intent to murder Mrs.
    Rogers, the jury properly concluded that the Defendant was not guilty of felony murder as
    charged. The jury then properly considered the next lesser-included offense of felony
    murder—second degree murder, i.e., a knowing killing of the victim. See State v. Ely, 
    48 S.W.3d 710
    , 720-22 (Tenn. 2001) (holding that second degree murder is a lesser-included
    offense of felony murder). The jury found that the Defendant knowingly killed the victim
    in Count 2, not that the Defendant knowingly killed Mrs. Rogers. Knowing is simply a lesser
    mental state; if the jury found the Defendant guilty of the premeditated and intentional killing
    of the victim in Count 1, such a finding necessarily encompassed the lesser mental state of
    knowing in Count 2.
    We disagree that the verdicts were inconsistent in any way. Moreover, as noted by
    the State, even if they were, inconsistent verdicts have long been upheld in this State. See
    Wiggins v. State, 
    498 S.W.2d 92
    , 94-95 (Tenn. 1973) (our supreme court held that
    “consistency in verdicts for multiple count indictments is unnecessary as each count is a
    separate indictment” and must be individually supported by the evidence); see also State v.
    Marlo Davis, No. W2011-01548-CCA-R3-CD, 
    2013 WL 2297131
    , at *7-11 (Tenn. Crim.
    App. May 21, 2013), perm. app. filed, (Tenn. July 23, 2013) (providing an in depth analysis
    of the applicability of the doctrines of inconsistent versus mutually exclusive verdicts in
    Tennessee). The Defendant is not entitled to relief on this issue.
    III. 911 Tape
    The Defendant contends that the trial court erred in not allowing the Defendant to play
    the tape of the 911 call Mrs. Rogers made the night before the incident in question, wherein
    she reported a prowler at her residence. According to the Defendant, giving a transcript to
    the jury is not the same as playing the audiotape because the audiotape would have had
    greater impact. The State responds that the trial court properly exercised its discretion when
    refusing to play the recording. The information the Defendant wanted to impart to the jury
    was accomplished by cross-examination and impeaching her with a transcript of the
    recording. The Defendant has failed to show that the trial court abused its discretion or that
    he was prejudiced in any manner. Furthermore, according to the State, because the audiotape
    of the 911 call is not a part of the record on appeal, the Defendant has waived any
    consideration of the issue.
    At trial, Vanessa Rogers stated that, on the evening before the shooting, she had a
    prowler at her residence and that her daughter said it was the Defendant who was outside.
    On cross-examination, defense counsel asked Mrs. Rogers about the 911 call she made that
    evening. The relevant testimony was as follows:
    -30-
    Q. Let’s move forward to July 28th. You stated that you all had a prowler
    outside your apartment, is that correct?
    A. Yes.
    Q. Okay. And just to make sure I recall what you said correctly, you, your
    daughter looked outside, saw [the Defendant], told you it was [the Defendant]?
    A. Yes.
    Q. And then you called 911, is that correct?
    A. Yes.
    Q. Do you recall what you told 911?
    A. I believe she’s the one that talked to them.
    Q. Do you recall whether or not she or you either one told them that night that
    this was [the Defendant] outside?
    A. I don’t remember the exact conversation.
    Q. Okay.
    A. She had panicked when she saw him.
    Q. Okay. If, indeed, this was [the Defendant], would you have told 911 that?
    A. I don’t know. I can’t say for sure.
    Q. Any reason why you wouldn’t have told them that?
    A. Scared. When you’re scared you don’t think.
    Q. Okay. The fact of the matter is when you called that night you didn’t know
    who was outside, did you?
    A. My daughter did. I didn’t see him. My daughter saw him. She looked
    through the peephole in the door.
    Q. Do you remember telling 911 that she saw a shadow outside?
    A. No.
    Q. That looked like a tall man?
    A. No.
    Defense counsel then requested to play the 911 tape for the jury. The prosecutor
    responded, “If he’s going to play the 911 tape, now is not the proper time. It would be in his
    proof. . . . All he can do is ask her did she make the statement, and she either admits it or
    denies it, and he can only play it if she denies it, a prior inconsistent statement . . . .” The
    prosecutor further noted that defense counsel was impermissibly seeking to use extrinsic
    evidence of a prior inconsistent statement by playing the 911 tape. Defense counsel
    responded that the witness had already denied making the statement and that he wanted to
    play the tape to show that she did in fact make such a statement. The trial court then excused
    the jury. Following an exhaustive jury-out hearing on the 911 tape, including discussion on
    issues of refreshing recollection and proper impeachment evidence, the court recessed for the
    evening.
    -31-
    The following morning when court reconvened, the prosecutor stated that he done
    some research over the evening on the admissibility of the 911 tape and learned the
    following,
    I did not realize that . . . the supreme court has amended the rules of evidence,
    not 613, but it comes in under 803, paragraph 26, relative to hearsay, and they
    have made a substantive change in how impeachment statements can come in
    ....
    I think the only proper procedure is, if they have this transcript, would
    be to show the witness the transcript, and then ask her if she recollects making
    that statement and, of course, if she denies it or says she [doesn’t] know, then
    I think under the new rule, with all candor, then the state -- the extrinsic
    statement could be introduced. I would have to concede that point.
    After more extensive discussion on the proper procedure to be employed for admission of
    the 911 tape, trial resumed.
    Cross-examination of Vanessa Rogers continued:
    Q. When we left yesterday we were discussing this prowler incident of July
    28, 2007, do you recall that?
    A. Yes, sir.
    Q. I think you stated you did not recall whether or not you made a call to 911
    that night, is that correct?
    A. Correct.
    Q. Since that time do you now recall whether or not you called 911 that night?
    A. I do not recall.
    Q. Okay. You do not recall calling 911 and saying my name is Vanessa
    Rogers, I live at Country Village Apartments?
    A. I don’t remember.
    Q. Don’t remember saying, I think I have a prowler, someone just tried to get
    in my front door?
    A. I don’t remember who made the call, whether it was myself or my
    daughter?
    Q. Okay. Do you recall stating me and my daughter are home alone and I
    have a wind chime on my front door because of some problems I’ve been
    having, and we were just sitting here getting ready for bed, and all of a sudden
    the doorknob started turning, the wind chimes started chiming and she looked
    -32-
    out the peephole and she said that she could see a shadow standing there, but
    nobody was moving, do you recall that?
    A. I do not.
    Q. And later on do you recall stating she saw a shadow out there. Yes. She
    said it looked like a tall man, and my neighbors are not at home. Do you recall
    that?
    A. I do not remember.
    Q. Do you want to review the statement?
    A. Sure.
    Mrs. Rogers was then permitted time to review the statement. Questioning continued:
    Q. . . . After reading that . . . do you recall whether or not you made that call?
    A. I don’t remember the phone conversation.
    Q. Do you remember whether or not -- you said you don’t remember the
    conversation, do you remember even making the call?
    A. I do not.
    Q. Okay. Do you remember giving a statement to Officer Chris Hall after this
    all happened?
    A. I remember an officer being there, but I don’t remember anything [about]
    who it was.
    Q. Do you remember telling that officer, regarding this July 28th incident, that
    you called 911, when the police arrived he was gone?
    A. I don’t remember.
    Defense counsel then approached the bench and requested to “introduce the actual tape of
    the call.” The trial court ruled, “I’ll allow you to introduce the transcript as an exhibit.” The
    transcript was admitted as an exhibit, and the prosecutor stated that he had reviewed the
    recording and stipulated that it was “a correct transcript of the tape.”
    Neither party points to either Rule 613(b) or Rule 803(26) of the Tennessee Rules of
    Evidence in support of their respective arguments on appeal. They simply argue about
    whether the trial court’s ruling to admit the transcript rather than actual tape was an abuse
    of discretion.
    Because the trial court found that the transcript of the 911 call was admissible as
    substantive evidence under Tennessee Rule of Evidence 803(26), and allowed the transcript
    to be entered as an exhibit in the record, we will begin by addressing that exception to the
    hearsay rule. Rule 803(26) provides a hearsay exception for a testifying witness’s prior
    -33-
    inconsistent statement. The statement is admissible as substantive evidence if the following
    conditions are satisfied:
    1. The statement must be admissible under Tennessee Rule of Evidence
    613(b).
    2. The declarant must testify at the trial or hearing and be subject to
    cross-examination about the statement.
    3. The statement must be audio or video recorded, written and signed by the
    witness, or given under oath.
    4. The trial court must conduct a jury-out hearing to determine by a
    preponderance of the evidence that the prior statement was made under
    circumstances indicating trustworthiness.
    Tenn. R. Evid. 803(26) & Advisory Comm’n Cmts. Tennessee Rule of Evidence 613(b)
    provides that “[e]xtrinsic evidence of a prior inconsistent statement by a witness is not
    admissible unless and until the witness is afforded an opportunity to explain or deny the same
    and the opposite party is afforded an opportunity to interrogate the witness thereon, or the
    interests of justice otherwise require.”
    At trial, defense counsel thoroughly questioned Mrs. Rogers about her recollection
    of the 911 call, and after being permitted to review the transcript of the call, Mrs. Rogers was
    still unable to recall any details of the call. Accordingly, Mrs. Rogers was afforded the
    opportunity to explain or deny her prior statement, satisfying Rule 613. She was also
    subjected to cross-examination. While the trial court did hold an extensive jury-out hearing
    on the issue, the court did not make a specific determination as to whether the prior statement
    was made under circumstances indicating trustworthiness. However, the State conceded that
    the evidence pertaining to the 911 call was admissible under Rule 803(26) after the witness
    had been afforded the opportunity to explain or deny the same.12 When defense counsel
    moved to admit the audiotape, the trial court instead permitted the transcript as an exhibit.
    The trial court did not err in admitting the statement as substantive evidence. See Davis,
    
    2013 WL 2297131
    , at *15; State v. Michael Wayne Davis, M2010-02108-CCA-R3-CD,
    
    2013 WL 105172
    , at *9 (Tenn. Crim. App. Jan. 9.2013), perm. app. denied, (Tenn. Apr. 11,
    2013).
    Nonetheless, the issue remains as to whether the tape or the transcript was the proper
    medium of the evidence to be admitted. There are three types of statements that fall within
    the ambit of Rule 803(26): (1) the statement must be audio or video recorded; (2) the
    12
    We note that Mrs. Rogers’s statements on the 911 call would qualify as excited utterances, a firmly rooted
    hearsay exception and bearing particularized guarantees of trustworthiness. See Tenn. R. Evid. 803(2).
    -34-
    statement must be written and signed by the witness; or (3) the statement must be given under
    oath. Only the first type of statement is applicable here. The Advisory Commission
    Comments to this section provide the following additional guidance:
    [T]his rule contains additional express requirements regarding the form of the
    prior statement so that the jury is assured that the statement contains the actual
    “words” of the witness on a prior occasion. For example the prior statement
    must be an audio or video recorded statement. A “police report” or insurance
    investigator’s “transcription” of the recorded statement would not qualify since
    it is not literally the witness’s own words contained on audio or video media.
    If not recorded, the prior statement can be in written form (created by
    the witness or by another) but then must be signed by the witness. The
    commission intends that the “signed” requirement must be equated with an
    actual signature as opposed to some email document which happens to have
    the witness’s name on the address. Finally, the rule permits a prior statement
    to be treated as substantive evidence if given under oath.
    In accordance with these comments, we agree with the Defendant that the recording of the
    911 call, not the transcript, was the proper evidence to be introduced in this case.
    However, the issue is still subjected to harmless error analysis. In making this
    determination, we agree with the State that inclusion of the recording in the appellate record
    would be helpful. Regardless, the State admitted that it was “a correct transcript of the tape.”
    Any distinction regarding admission of the transcript versus the actual tape is tedious at best.
    Here, the Defendant was able to cross-examine Mrs. Rogers and impeach her credibility with
    the contents of the 911 call. The defense was able to get the information it sought before the
    jury as substantive evidence, i.e., that Mrs. Rogers never conveyed to 911 that evening that
    it was the Defendant who was prowling outside her residence. Any error in this regard is
    harmless. The Defendant’s issue is without merit.
    IV. Tire Photographs
    The Defendant contends that the trial court erred by admitting the photographs of the
    tires of his vehicle because the probative value of the photographs does not outweigh their
    prejudicial effect, “especially given the fact that the TBI lab could not make” a definitive
    identification of the Defendant’s tires. The State responds that the trial court properly
    admitted evidence of the tires of the Defendant’s vehicle. The State argues that the
    photographs were relevant to show the similarity between the Defendant’s tires and the tire
    tracks found at the scene and the fact that the TBI could not make a definitive match went
    to the weight not the admissibility of the evidence.
    -35-
    Det. Hall testified that it appeared that a vehicle had recently driven away from a
    roadbed nearby Mrs. Rogers’s apartment. According to Det. Hall, he observed a “set of tire
    tracks coming out of the roadway[,]” and it appeared that the “vehicle had dragged the
    underside, had made some fresh skid marks like the vehicle had backed out, or came out and
    bottomed out.” Det. Hall described that there were “1, 2, 3 longitudinal lines visible in the
    tire track” at the scene. Although they attempted to take “plaster casts of those tire prints”
    and sent photographs to the TBI lab, the lab was unable “to make an identification.” The
    photographs of the tire tracks at the scene and the photographs of the Defendant’s tires were
    introduced as exhibits to Det. Hall’s testimony to show that, although the lab could not make
    a positive identification as to whether there was a match, the tread pattern on the Defendant’s
    tires was similar to the pattern left at the scene.
    Tennessee courts follow a policy of liberality in the admission of photographs in both
    civil and criminal cases. State v. Banks, 
    564 S.W.2d 947
    , 949 (Tenn. 1978) (citations
    omitted). Accordingly, “the admissibility of photographs lies with the discretion of the trial
    court” whose ruling “will not be overturned on appeal except upon a clear showing of an
    abuse of discretion.” State v. Faulkner, 
    154 S.W.3d 48
    , 67 (Tenn. 2005) (quoting Banks, 564
    S.W.2d at 949).
    In order to be admitted as evidence, a photograph must be relevant to an issue at trial.
    Tenn. R. Evid. 402; State v. Braden, 
    867 S.W.2d 750
    , 758 (Tenn. Crim. App. 1993).
    Evidence is relevant if it has “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. A relevant photograph is generally
    admissible, Tenn. R. Evid. 402, unless its “probative value is substantially outweighed by the
    danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
    considerations of undue delay, waste of time, or needless presentation of cumulative
    evidence.” Tenn. R. Evid. 403. In deciding whether to admit photographs, the trial court
    must consider the questions of fact that the jury will have to consider in determining the
    accused’s guilt, as well as other evidence that has been introduced during the course of the
    trial. State v. Williamson, 
    919 S.W.2d 69
    , 78 (Tenn. Crim. App. 1995).
    Relying on rules of relevance, defense counsel objected to admission of the
    photographs of the Defendant’s tires. Defense counsel said, “I mean, how many tires on the
    road have this same tread pattern?” The prosecutor responded that Det. Hall had already
    testified that the photograph of the tire tracks at the scene showed three longitudinal stripes
    and that the photographs of the Defendant’s tires showed the same type of longitudinal
    stripes and, therefore, the photographs were relevant. Defense counsel restated his objection,
    “[I]n these pictures, they’re going to try to make that inference to the jury that this was [the
    Defendant’s] car, but it could have been any car with those three lines.” The trial court
    -36-
    overruled the Defendant’s objection, “Well, it has some probative value. You can argue how
    much it has.” Det. Hall then testified that the tires on the Defendant’s vehicle likewise had
    three longitudinal stripes, and the photographs of the Defendant’s tires were admitted into
    evidence.
    The photographs were clearly relevant, showing that the Defendant’s tires had three
    longitudinal stripes, the same as the tire pattern left at the scene. Additional photographs
    were admitted that showed “fresh scrape marks” on the undercarriage of that same car. We
    agree that the lack of definitive match of the tire tracks at the scene to the Defendant’s tires
    goes to the weight and not the admissibility of the evidence. Therefore, the trial court did
    not abuse its discretion by admitting the photographs into evidence.
    V. Brady Violation
    The Defendant contends that the State failed to disclose exculpatory evidence by
    failing to provide, prior to trial, documentation regarding the investigation by law
    enforcement of Terry Janow as a potential suspect in this matter. The State responds that Mr.
    Janow’s statement was not favorable to the Defendant and that, furthermore, the delayed
    disclosure did not hinder the Defendant’s ability to prepare a defense.
    On cross-examination of Agent Muhonen, defense counsel asked if, as part of law
    enforcement investigation, anyone else was pursued as a possible suspect in the victim’s
    murder. Agent Muhonen explained, “I don’t know if you would describe it as a suspect, we
    had -- some information came out and we went and did -- Detective Hall and I went and did
    an interview” of Mr. Janow. According to Agent Muhonen, he and Det. Hall interviewed
    Mr. Janow because they “were trying to gather information[,]” and there had been
    “allegations made that [Mr. Janow] may have been involved in the shooting.” Agent
    Muhonen then said that he had a copy of Mr. Janow’s statement, taken on August 13, 2007,
    at 11:50 a.m., in his possession. Defense counsel then asked to view the statement; the
    prosecutor objected, arguing that the defense was not entitled to the statement either before
    trial or at trial because Mr. Janow was not a testifying a witness. The trial court then excused
    the jury for a jury-out hearing.
    Defense counsel submitted that the State had committed a Brady violation, arguing
    as follows:
    First of all, . . . I think I was at least entitled to know they were
    interviewing this person. We asked for folks with information. . . . They
    interviewed this fellow and we were never given his name as far as an
    interview, and I’ve [been] given a list of 50 something potential witnesses, and
    people with information. This guy’s name never came up on any of that.
    -37-
    ....
    . . . I think anybody with information regarding this case, that yes, we’re
    entitled to know that, and second of all, I think the fact that they’re looking at
    someone else is exculpatory. I think I would be entitled to any statements that
    person gets. If they’re looking at other people who might have had some
    connection with this, I think that’s exculpatory information that has to be
    turned over.
    In response to the allegation of a Brady violation, the prosecutor averred,
    Well, Your Honor, under Rule 16 we’re not obliged to do [defense
    counsel’s] homework for him. We provide him with a list of potential
    witnesses, and if they testify, then he’s provided, if they’ve given a statement,
    he’s provided under the Jencks Rule with a copy of the statement, but we’re
    under no obligation, unless the statement is patently exculpatory, we’re not
    under an obligation to turn over every name of everybody that every officer
    talked to in this case, or may have had some need to talk to. That’s not our
    obligation.
    The trial court then submitted to defense counsel,
    I don’t know that you can move from we’re talking to someone that it’s
    exculpatory. You’re going to have to have more of a connection than simply
    the fact that they could talk to any number of witnesses that they may not use.
    They wouldn’t necessarily be witnesses that gave information that was
    exculpatory.
    Defense counsel replied that he was not asserting that Mr. Janow’s statement was in fact
    exculpatory. He clarified, “What I’m saying is the fact they’re looking at someone else is
    exculpatory evidence towards my client the fact that there’s some indication that somebody
    else may have been involved in this crime, or may have committed this crime. I think that
    in and of itself is exculpatory.”
    The prosecutor, referring to the contents of Mr. Janow’s statement, asserted that it was
    not exculpatory in nature. The trial court then looked at the actual statement, concluding, “I
    see nothing in the reasonably short statement that is of an exculpatory nature.” However,
    regardless of entitlement, the trial court then allowed the defense to look at a copy of Mr.
    Janow’s statement. Defense counsel agreed that the statement itself was not exculpatory but
    continued to argue, “the fact that the [S]tate had actually looked at other people and
    -38-
    interviewed other folks[, t]hat information would be exculpatory information.” Defense
    counsel proceeded, “Now, it’s not something I’d want at trial, it’s something I would have
    wanted before, because evidently somebody somewhere had said you need to talk to Terry
    Janow. . . . That’s the information that’s exculpatory that’s not been provided.” The
    prosecutor replied that the information regarding Mr. Janow came directly from the
    Defendant to law enforcement.
    Defense counsel moved for mistrial based on the State’s failure to provide this
    information before trial. The trial court denied the motion.
    In Brady v. Maryland, the United States Supreme Court held that “suppression by the
    prosecution of evidence favorable to an accused upon request violates due process where the
    evidence is material either to guilt or to punishment, irrespective of the good faith or bad
    faith of the prosecution.” 
    373 U.S. 83
    , 87 (1963). “Evidence ‘favorable to an accused’
    includes evidence deemed to be exculpatory in nature and evidence that could be used to
    impeach the [S]tate’s witnesses.” Johnson v. State, 
    38 S.W.3d 52
    , 55-56 (Tenn. 2001)
    (citations omitted).
    To prove a Brady violation, a defendant must demonstrate the following: (1) he
    requested the information (unless the evidence is obviously exculpatory, in which case the
    State is obligated to release such evidence regardless of whether or not it was requested); (2)
    the State suppressed the information; (3) the information was favorable to the defendant; and
    (4) the information was material. State v. Edgin, 
    902 S.W.2d 387
    , 390 (Tenn. 1995).
    Evidence is favorable if it “‘provides some significant aid to the defendant’s case, whether
    it furnishes corroboration of the defendant’s story, calls into question a material, although
    not indispensable, element of the prosecution’s version of the events, or challenges the
    credibility of a key prosecution witness.’” Johnson, 38 S.W.3d at 56-57 (quoting
    Commonwealth v. Ellison, 
    379 N.E.2d 560
    , 571 (Mass. 1978)). The evidence is deemed
    material if “there is a reasonable probability that, had the evidence been disclosed to the
    defense, the result of the proceeding would have been different.” United States v. Bagley,
    
    473 U.S. 667
    , 682 (1985). In the case of a delayed disclosure of exculpatory information,
    as opposed to a complete failure to disclose, the inquiry is whether the delay prevented the
    defense from effectively preparing for and presenting the defendant’s case. State v.
    Caughron, 
    855 S.W.2d 526
    , 548 (Tenn. 1993); see Bagley, 473 U.S. at 682 (stating that
    failure to respond to Brady request may impair adversary process because defense “might
    abandon lines of independent investigation, defenses, or trial strategies that it otherwise
    would have pursued”). The appellant bears the burden of proving a Brady violation by a
    preponderance of the evidence. Edgin, 902 S.W.2d at 390.
    -39-
    In examining the elements of a Brady claim, we note that, although defense counsel
    stated he filed a request for discovery, no request appears in the appellate record. However,
    it does appear from the record that the State began providing discovery materials to the
    defense as early as May 2009. Moreover, even assuming that a proper request was made, as
    the State asserted, Mr. Janow was not presented as a witness at the Defendant’s trial; thus,
    it does not appear that the State intentionally suppressed the evidence.
    Our conclusion that the alleged Brady material is neither favorable nor material to the
    Defendant’s case is more significant to our analysis. After being permitted to view Mr.
    Janow’s statement to law enforcement, defense counsel conceded that Mr. Janow’s statement
    itself was not exculpatory. However, defense counsel continued to argue that evidence that
    law enforcement officials had another suspect whom they investigated during the course of
    the investigation of the victim’s murder was exculpatory in nature regardless of the results
    of the investigation. At trial, defense counsel was permitted to question Agent Muhonen and
    Det. Hall about whether they interviewed Mr. Janow in relation to this shooting and their
    reasoning for doing so. The officers testified that, after investigating Mr. Janow and verifying
    certain information, Mr. Janow was eliminated as a suspect. The defense was already
    presenting testimony to the jury insinuating that Mr. Janow committed this crime, not the
    Defendant. Defense counsel was aware of Mr. Janow and any possible motive prior to trial.
    We fail to see how the challenged evidence, simply the fact that Mr. Janow was actually
    interviewed and investigated, is exculpatory of the Defendant. See, e.g., Donald Wayne
    Strouth v. State, No. 03C01-9507-CC-00195, 
    1997 WL 90636
    , at *8 (Tenn. Crim. App. Mar.
    4, 1997) (“evidence of other suspects was presented to the jury and appellant was indeed
    aware that other suspects were considered”), aff’d, 
    999 S.W.2d 759
     (Tenn. 1999).
    It was further established that the officers only investigated Mr. Janow when the
    Defendant began shifting blame to Mr. Janow. The Defendant contends that, although he
    suspected Mr. Janow committed the murder prior to trial, “such is a far cry from having
    knowledge that the State has investigated, and taken a statement from a potential suspect.”
    We disagree. The Defendant’s circular argument must fail: He pointed the finger at Mr.
    Janow; Mr. Janow was interviewed; Law enforcement eliminated Mr. Janow as a suspect;
    Part of the defense strategy at trial was to accuse Mr. Janow of the murder; Defense counsel
    was allowed to see Mr. Janow’s statement at trial, despite the ruling that there was no legal
    requirement for him to be so permitted; After viewing the statement, defense counsel
    acknowledged that Mr. Janow’s statement was not exculpatory to the Defendant; and
    Defense counsel then requested a mistrial for simply not being informed that the interview
    took place. He cannot now be heard to benefit from efficient investigation by law
    enforcement at his behest.
    -40-
    With these considerations in mind, we conclude that any delay did not prevent the
    defense from effectively preparing for and presenting the Defendant’s case. Accordingly,
    the Defendant failed to sustain his Brady claim, and the trial court committed no error in
    denying him relief on this basis.
    VI. Juror Bias
    The Defendant contends that the jury foreperson had made a decision on guilt prior
    to the closing of proof at trial as evidenced by her actions and body language. When this was
    brought to the attention of the trial court, the juror should have been recused from service or
    a mistrial granted. The State responds that the issue is waived because the record is void of
    any request for a mistrial. Alternatively, the State submits that the Defendant has failed to
    prove that the jury foreperson was biased or favored the State in any way.
    During a jury-out hearing following the direct examination of a defense witness,
    defense counsel brought the juror’s actions to the attention of the trial court. The following
    exchange thereafter took place:
    [DEFENSE COUNSEL]: We’ve noticed one juror who, this morning
    especially, has done a lot of eye rolling and looking over to other jurors and
    just kind of eye rolling and whatnot during ou[r] case in chief, and we would
    ask to have her excused. We don’t think that she’s certainly showing any -- I
    don’t know if she’s made up her mind one way or the other, but she’s certainly
    showing some -- having some actions, Judge, that are not indicative of
    someone who has not made up their mind at this point in the case, and actually
    her actions tending to be trying to persuade other jurors of the same thing.
    [Co-counsel for the Defendant] has had --
    [PROSECUTOR]: Your Honor, you can’t ask jurors to be robots. I mean,
    they’re human beings and they have, you know, feelings and, you know, some
    people are more demonstrative than others, and that’s just their interpretation,
    you know. That would be totally uncalled for. This wom[a]n has done
    absolutely nothing wrong.
    ....
    THE COURT: Well, you’re asking me to remove a juror because of some
    interpretation that you have about her demeanor in the jury box?
    [CO-COUNSEL]: In her -- intentionally or not, doing things that appear to be
    trying to influence other jurors.
    -41-
    THE COURT: Well, I hear what your interpretation is. I’m trying to
    formulate -- you’re saying, again, her demeanor as a juror is what -- you’re
    asking me to remove her because of her demeanor, or your interpretation of her
    demeanor? I don’t hear anything that you’re arguing to me that would cause
    me to think that she should be removed, so I deny your motion to remove the
    juror.
    Later in the trial, after more testimony from defense witnesses, the defense again,
    outside the presence of the jury, renewed its motion to remove the juror. Defense counsel
    stated,
    I understand the [c]ourt’s ruling previously. We would renew our
    motion regarding our juror here that continues to make faces and roll eyes.
    [The juror] has continue[d] to do that, and we think that she’s -- we were
    looking at her, and to her it looks like she’s clearly made up her mind one way
    or the other on this case, and we don’t think she’s a fair juror at this point.
    The trial court again overruled the motion.
    Following the final charge to the jury, after the alternate jurors were chosen and
    excused, but before deliberations, the trial court made this observation:
    This morning [defense counsel] made a motion concerning [the juror]. From
    that time until the jurors went out, I have observed [the juror’s] demeanor. Not
    every single minute, but most of the time. In other words, this jury in this
    courtroom is not to my side, but immediately in front of me, and [the juror]
    happens to be seated immediately in front of me. I did not observe anything
    about her demeanor that was unusual during the times that I looked at her.
    Now, it’s rather an unusual, I guess, motion that [defense counsel] made, but
    he’s certainly ought to make every motion that he thinks appropriate. I hardly
    know how to proceed other than to put on the record my observations of [the
    juror] since that time, which was around the mid morning break, I think the
    motion was made.
    That juror was later elected foreperson of the Defendant’s jury.
    -42-
    The Defendant raised this issue in his motion for new trial13 : “Certain jury members
    had made a decision on guilt prior to the closing of proof at trial.” In conjunction with the
    motion for new trial, co-counsel for the Defendant submitted an affidavit. In that affidavit,
    co-counsel averred that the juror had made “numerous gestures indicating that she was in
    agreement with the State’s witnesses and not in agreement with the defense witnesses.” Co-
    counsel continued that, on one occasion, he saw the juror “attempt to gain the attention of
    another juror while indicating that she was in agreement with a witness called by the State”
    and that “these types of actions were common for [the juror] throughout the latter portion of
    the trial.” This ground for relief was overruled.
    Both the Sixth Amendment of the United States Constitution and article I, section 9
    of the Tennessee Constitution guarantee a defendant’s right to an impartial jury. An
    impartial jury is one in which the jurors are “free of . . . disqualification on account of some
    bias or partiality toward one side or the other of the litigation.” State v. Akins, 
    867 S.W.2d 350
    , 354 (Tenn. Crim. App. 1993) (quoting Toombs v. State, 
    197 Tenn. 229
    , 
    270 S.W.2d 649
    , 650 (Tenn. 1954)). “Once a jury is impaneled, jurors may be discharged from further
    service prior to deliberations only if found by the trial court to be ‘unable or disqualified to
    perform their duties.’” State v. Cleveland, 
    959 S.W.2d 548
    , 551 (Tenn.1997) (quoting Tenn.
    R. Crim. P. 24(e) (now Tenn. R. Crim. P. 24(f)(2)(B)); see Tenn. Code Ann. § 22-5-312.
    “Where a juror is not legally disqualified or there is no inherent prejudice, the burden is on
    the Defendant to show that a juror is in some way biased or prejudiced.” State v. Caughron,
    
    855 S.W.2d 526
    , 539 (Tenn. 1993) (citations omitted). The decision to discharge a juror and
    to select an alternate juror is left to the discretion of the trial judge. State v. Millbrooks, 
    819 S.W.2d 441
    , 445 (Tenn. Crim. App. 1991).
    It is a generally accepted principle of trial administration that jurors should not “form
    or express any opinion about the case until it is finally submitted to the jury.” Tenn. R. Crim.
    P. 24(g)(2); see State v. Sexton, 
    368 S.W.3d 371
    , 389 n.7 (Tenn. 2012). Like other
    juror-related issues, including the credibility and demeanor of a juror, the trial court is in the
    best position to assess a juror’s misconduct, such as when a juror is seen sleeping during the
    presentation of testimony. When the defense moved to remove the juror based upon her
    facial gestures and body language, the trial court denied motion, reasoning that the Defendant
    had not provided the court with sufficient information that the juror had already formed an
    13
    The State vehemently argues that the Defendant has waived this issue because the record is devoid of any
    evidence that he ever specifically requested a mistrial. However, the Defendant did lodge an objection at
    trial to the juror remaining on the jury, and this issue was raised in the Defendant’s motion for new trial; this
    is all that is required for appellate review of the issue of whether the trial court abused its discretion by
    failing to remove the juror from the venire. We do agree that the request for a mistrial was never thereafter
    made. Based upon our conclusion that the there was no abuse of discretion in the trial court’s decision to
    allow the juror to remain on the venire, there would likewise be no grounds for a mistrial.
    -43-
    opinion about the Defendant’s guilt. The trial court later stated that it had observed the juror
    in question following the Defendant’s motion and found nothing about her demeanor to be
    “unusual.” The Defendant has the burden of demonstrating bias or prejudice, and he has not
    done so. Jurors are not automatons. See State v. Raynella Dossett Leath, No. E2011-00437-
    CCA-R3-CD, 
    2013 WL 2420639
    , at *32 (Tenn. Crim. App. June 3, 2013), perm. app. filed,
    (Tenn. Aug. 1, 2013). We hold that the trial court did not abuse its discretion in refusing to
    remove this juror.
    CONCLUSION
    In accordance with the foregoing reasoning and authorities, the judgments of the trial
    court are affirmed.
    _________________________________
    D. KELLY THOMAS, JR., JUDGE
    -44-