State of Tennessee v. Jerome Sidney Barrett ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
June 22, 2011 Session
STATE OF TENNESSEE v. JEROME SIDNEY BARRETT
Appeal from the Criminal Court for Davidson County
No. 2008-B-1791 Steve Dozier, Judge
No. M2009-02636-CCA-R3-CD - Filed July 13, 2012
The Defendant, Jerome Sidney Barrett, was found guilty by a Davidson County Criminal
Court jury of second degree murder, a Class A felony, for a 1975 homicide. See T.C.A. §
39-2403 (1975) (amended 1979, 1985) (renumbered at § 39-2-211) (repealed 1989). He was
sentenced to forty-four years, to be served consecutively to a life sentence for a previous
conviction. On appeal, he contends that: (1) the evidence is insufficient to support the
conviction; (2) the trial court erred in denying his motion to suppress; (3) the trial court erred
in denying his motion to dismiss the prosecution due to excessive pre-indictment delay; (4)
the trial court erred in admitting evidence that the Defendant stated he “had killed before”;
(5) the trial court erred in allowing the State to ask a defense witness whether he was
arrested, suspended, and had resigned from the police force in 1978; (6) the trial court erred
in allowing the forensic pathologist who performed the victim’s autopsy to testify as an
expert in DNA analysis; (7) the trial court erred in permitting impeachment of a defense
witness with evidence of a misdemeanor conviction; (8) the trial court erred in imposing a
forty-four year sentence; and (9) the trial court erred in ordering the sentence to be served
consecutively to the Defendant’s life sentence. We affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OSEPH M. T IPTON, P.J, delivered the opinion of the court, in which T HOMAS T. W OODALL
and C AMILLE R. M CM ULLEN, JJ., joined.
Dawn Deaner, District Public Defender; Jeffrey Devasher and James McNamara (on appeal),
and Aimee Solway and Laura Dykes, (at trial), Assistant Public Defenders, Nashville,
Tennessee, for the appellant, Jerome Sidney Barrett.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Tom
Thurman, Katy Miller, and Rachel Sobrero, Assistant District Attorneys General, for the
appellee, State of Tennessee.
OPINION
This case relates to the murder of Marcia Trimble. Virginia Trimble Ritter,1 the
victim’s mother, testified that on February 25, 1975, she lived on Copeland Drive in
Davidson County. She said her daughter was born on March 28, 1965, and was in the fourth
grade at the time of her disappearance and death. She said that she allowed the victim to sell
Girl Scout cookies in their neighborhood and that the victim sometimes did so alone. She
said that the victim was allowed to eat fruit after school and that on the day of the victim’s
disappearance, the victim may have eaten a small donut.
Ms. Trimble testified that the victim left her home about 5:20 p.m. on February 25,
1975, to deliver cookies to Marie Maxwell, a neighbor who lived diagonally across the street.
She said the victim had about twenty dollars with her. The victim was wearing a blue
checked blouse, blue jeans, white socks, and black patent leather boots, but was not wearing
a coat. She said that around 5:45 p.m., she went outside to call the victim. She said she saw
the victim’s dogs sitting in Ms. Howard’s yard across from her driveway and knew that the
victim was on that side of the street. She said that the victim always came home when called
but that the victim did not respond on February 25. She said that she called Ms. Maxwell to
inquire about the victim’s whereabouts and that afterwards, her husband and son drove
around the neighborhood searching for the victim. She said she went to the backyard and
called for the victim.
Ms. Trimble testified that her husband called a police officer, Sergeant Sherman
Nickens, who was an acquaintance. She said a police officer came to their home and
completed a missing person report. She said that “everybody in the community” searched
for her daughter that night and that there were aerial searches using helicopters. She said that
the victim’s disappearance received media attention and that various law enforcement
agencies established a command post in their home for about ten days. She said a $30,000
reward was established with funds from her family, a newspaper, and the governor.
Ms. Trimble testified that the victim’s body was found on March 30. She said that
when they came home from church that day, the police chief and Sergeant Nickens were
waiting to give them the news. She said her family was acquainted through the neighborhood
with the family that owned the garage where the victim’s body was found. She identified a
1
Although she remarried after Mr. Trimble’s death, she said she preferred to be called Ms.
Trimble.
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photograph of the victim that was taken a few days before the victim’s disappearance, in
which the victim wore the same blouse as she wore when she disappeared.
Ms. Trimble identified an aerial photograph of their neighborhood. She marked the
locations of her home, the victim’s school, a second school, a landscaping nursery, the house
where the victim’s body was found in a detached garage, and a vacant lot where
neighborhood children played.
On cross-examination, Ms. Trimble said that one of the victim’s male classmates
walked around the neighborhood with the victim while the victim sold cookies earlier that
afternoon and that the classmate then played basketball with the victim’s twelve-year-old
brother and at least two other boys. Although she did not remember receiving a telephone
call before the victim left home the second time, she acknowledged that there was discussion
of a telephone call during a 1975 hypnosis session to which she submitted at the request of
the authorities. She said the victim’s father, who was deceased at the time of the trial,
thought the victim left the house around 5:30 p.m. She thought it was between 5:20 p.m. and
5:30 p.m. She said she called for the victim to come home for dinner at 5:45 p.m. She
acknowledged that although there were pears in the house, she did not see the victim eat a
pear on February 25.
Ms. Trimble testified that when she called Ms. Maxwell about 6:00 p.m., Ms.
Maxwell said the victim had not been to the Maxwell home. She said Ms. Maxwell thought
she saw the victim by the hedge in Ms. Howard’s driveway. She said the police were
notified between 7:00 p.m. and 7:30 p.m. She did not recall telling investigators that she did
not see the dogs when she first went outside to look for the victim. She did not recall telling
them that she instructed the victim’s brother not to call the dogs because they were with the
victim. She said that within a week, her family paid to have tracking dogs brought from
Philadelphia to assist in the search for the victim.
Harry Moffett testified that he was thirty-three years old in 1975 and that he was
visiting his in-laws, the Thorpes, for Easter on March 30, 1975. He said there were six adults
and eight children staying in the Thorpe home that weekend. Mr. Moffett said that the family
attended an early church service that morning and that he went to the Thorpes’ garage, which
was a detached storage building about twenty feet from the house. He said that he went to
the garage to get a tire and an outboard motor and that as he looked at the tires stored in the
garage, he saw the victim’s body. He said that he had his brother-in-law, John Ed Fuller,
come to the garage and that Mr. Fuller touched the victim with a broom handle to see if she
was plastic. He said neither of them made any other contact with the body. He said he did
not smell decomposition. The police were called. Mr. Moffett identified a photograph of
the garage and the locations of the victim’s body and various items in the garage.
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On cross-examination, Mr. Moffett testified that he did not have to move anything to
see the victim’s body. He said that he never came closer than a few feet and that he could
see the victim’s body after he stepped outside the garage. He said that other than a tire he
moved, the police saw the garage exactly as he found it.
Retired Metropolitan Police Captain Thomas Cathey testified that he was a detective
in the homicide and armed robbery sections in March 1975. He said that he was not involved
in the initial investigation of the victim’s disappearance but that he responded when the
victim’s body was discovered on March 30 and took charge of the scene. He said the garage
where the body was found was open-ended without doors. He had the garage secured and
wood planks laid to cover the dirt floor. He identified photographs of the garage. He said
that the victim was well-concealed in the garage and that he could not see her until he was
within three feet of her body. He said a greenish glass jar and a large cardboard box were
on top of the victim. He identified a form, an empty money envelope, and boxes of cookies
near her. He identified a diagram showing the victim in the back left corner of the
rectangular garage.
Mr. Cathey testified that Officer Carol Lawrence of the Youth Guidance Division
recorded notes of his collection of evidence and measurements of the scene. He said he wore
rubber gloves. He said that he and Sergeant Jimmy Vaughn moved the body to a table in the
garage after covering the table with a sheet provided by a funeral home. After the body was
on the table, he removed the victim’s clothing except for her panties and collected it as
evidence. He said the victim’s clothing was in place, including the snaps on the victim’s
jeans. He cut the blouse in order to remove it. He said the evidence “was placed in the ID
unit . . . outside the garage.” He identified the victim’s clothing, which he had sent to the
FBI for analysis. He said that fingerprints collected from the scene were not useful for
identification purposes.
Mr. Cathey testified that the victim’s body was placed in a “crash bag” and taken to
a funeral home. He said that the normal procedure in 1975 was for examination of a body
to take place at a funeral home and that he observed the post-mortem examination conducted
by Dr. Michael Petrone and took notes. He said Dr. Petrone conducted a vaginal
examination. He said the victim’s body was flown to Memphis on a state-owned airplane
for further examination by Dr. Jerry Francisco, the state medical examiner.
On cross-examination, Mr. Cathey testified that he supervised the homicide unit in
1975. He agreed Detective Tommy Jacobs was the lead detective assigned to the victim’s
case and said Detective Jacobs and Sergeant R.C. Jackson were at the victim’s home on the
night she disappeared.
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Mr. Cathey testified that he took extreme care in collecting the evidence and that his
goal was for the evidence to be touched only by him. He said that most of the evidence was
placed in paper bags, although some evidence might have been placed in plastic bags. He
said the unopened boxes of cookies were between the body and the side wall of the garage.
He said that after the body was moved, he could see that it had been on top of stacked bags
of fertilizer and mulch. He said that although the bags were not initially collected, he had
samples taken from them, and that the bags were eventually collected. He said he
accompanied the body to the funeral home and to Memphis to maintain the integrity of the
evidence. He said that in 1975, Nashville’s medical examiners were physicians but not
forensic pathologists and that Dr. Francisco was a forensic pathologist. He said he left
Memphis on March 30 at 9:00 p.m. and returned the next day with the victim’s dental records
and information about scars and moles that Dr. Francisco requested.
Mr. Cathey said that officers from other divisions were involved with the case because
the homicide division was short-staffed and was investigating ten other murders in the month
before the victim’s body was found. He said the victim’s neighborhood was canvassed after
the body was found, which involved going door-to-door and inquiring about anything
unusual that occurred around the time of the victim’s disappearance. He acknowledged that
the homicide division’s property room flooded in February 1976.
Dr. Jerry Francisco, an expert in forensic pathology, testified that he was the
Tennessee Medical Examiner from 1971 until 1989 and for three additional years in the
1960s and that he performed the victim’s autopsy. He said that at the time, no Davidson
County pathologist was willing to perform forensic autopsies. He said the victim’s cause of
death was asphyxia due to manual strangulation, which he said would take considerable
pressure because children’s cartilage and bones were flexible. He noted that the victim’s
thyroid cartilage and hyoid bone were broken, that the victim had an adjacent hemorrhage,
blue lips, and small hemorrhages of the scalp, surface of the chest organs, heart, and lungs,
and that she had a small bruise on her knee. He said that he did not observe any vaginal
injuries and that the victim’s hymen was intact, which he said “suggested that it was unlikely
there had been a sexual act performed.” He said he did not know at the time of his autopsy
that Dr. Petrone had examined the victim’s body in Nashville.
Dr. Francisco testified that the victim showed livor mortis on the back left side of the
body, which was consistent with the position of the body in the garage. He said that based
upon a pear fragment in the victim’s stomach, decomposition, livor mortis, and other changes
to the body, it was his opinion that the victim died at or near the time she disappeared. He
said that he did not know whether the victim was killed in the location where her body was
found but that in his opinion, “she was in that location almost from the time of death.” He
said he had reviewed Dr. William Bass’s report and concurred with it.
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Dr. Francisco testified that his report stated that semen was found on vaginal
swabbings of the victim’s vagina and that Dr. James Spencer Bell collected that evidence
before the autopsy. He said that DNA testing was not performed in 1975 and that the
technique for magnifying DNA was not developed until the early 1980s. He said that in
1975, there were no precautions in the laboratory to prevent the transfer of DNA. He said
that in 1975, the person who prepared a swab would touch it and that there were numerous
sources of contamination. He acknowledged that he and Dr. Bell made their own swabs by
twisting cotton around a stick and that gloves might not be worn in conducting vaginal
swabbings.
Dr. Francisco testified that the vaginal swab procedure called for taking samples with
two swabs, which were placed in a tube and delivered to the laboratory with a request slip.
He said that during any delay before analysis, they would have been stored in a secure area,
currently referred to as an evidence locker, which might be refrigerated. He said that no one
except the analyst had access to the swabs during this time and that the samples probably
would not have been air dried. He said that slides would have been prepared by rolling the
swab onto the slide and that the analysts did not wear gloves at that time. He said the vaginal
samples collected in this case were analyzed four days after they were collected. He said the
analyst, Ms. Fowler, reported that sperm was detected. He acknowledged that other things
that might be present on a dead body, such has mold spores, yeast buds, and fungus, might
appear to be sperm. He said that he first saw the slides when they were retrieved from the
laboratory in 1990 by the Nashville authorities and that between 1975 and 1990, they would
have been stored in numerical order in a slide drawer. He stated that there were conflicting
chemical test results regarding whether the substance was seminal fluid because spermine
and “the impact [sic] for spermatozoa were found, but acid phosphatase and choline were not
detected.” He said that it would be unusual for intact sperm to be present after thirty-three
days but that sperm could survive much longer on a victim’s clothing. He testified that the
slides could be identified as the victim’s because they were marked with a unique “TE
number” assigned by the serology laboratory, TE75-218. He said the autopsy number or the
victim’s name were not used for the slides. He said that in this case, Ms. Fowler would have
assigned the TE number. He said a serological type could not be determined from the slides
because the sample was insufficient or degraded. He said the only evidence of sexual assault
was the observation of sperm on the slides. He said that if testing of the slides showed four
or five DNA contributors, they were probably contaminated. He said contamination would
not alter the presence of existing DNA but would place additional DNA on the slides.
On cross-examination, Dr. Francisco testified that the victim’s autopsy was the only
one he ever performed for Nashville authorities. He agreed that he did not have a
standardized working relationship with Metro Police regarding items to be sent with the
body, such as clothing and fingernail clippings. He said the victim’s hands were bagged. He
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did not initially receive crime scene photographs or other items recovered from the
immediate vicinity of the body. He said he received crime scene photographs after he
performed the autopsy, possibly after he issued his report.
Dr. Francisco testified that the victim’s body was in the first stage of decomposition
and that there was no evidence of animal destruction. He said that he requested information
about food the victim might have consumed, that he was provided information about
powdered donuts, and that he was told that pears were available in the victim’s home. He
said temperature affected the rate of decomposition. He obtained weather information from
the Davidson County Weather Bureau and went to Nashville to record temperatures in the
garage for comparison with weather bureau reports. He did not include this information in
his report.
Dr. Francisco did not recall if he was asked in 1975 whether it would take significant
force to break the hyoid bone or whether an adolescent or a child was capable of producing
that amount of force, but he conceded he might have stated his opinion to the police. He said
a child could produce the necessary force. He stated that although he had some
conversations with detectives about specific issues after his report was delivered, he did not
recall much conversation.
Dr. Francisco testified that during the autopsy, he saw fluid in the vaginal vault but
conceded that it was not possible to identify seminal fluid based upon visual observation.
He said there were three unique numbers associated with the forensic institute and the
toxicology laboratory – the autopsy number, the toxicology number, and the trace evidence
number. He said the batch number was not part of a unique numbering system. He said that
he had “no doubt” the slides identified as evidence were from the victim’s autopsy and that
the numbering used on the slides was consistent with the practice in 1975. He said that the
term “intact spermatoza” used in his report was a plural term meaning more than one sperm.
He said spermine referred to a chemical that is typically present in semen. He said he had
not changed his original opinion that semen was present on the victim’s body. He was
unsure whether he was asked in 1975 whether the victim could have been partially
penetrated. When asked if he recalled being asked whether the victim might have been
penetrated by someone with an underdeveloped penis, he said, “That . . . kind of rings a bell.”
Dr. Francisco testified that it was possible that the victim’s body was moved to the
garage after lividity set in. He said it was more reasonable to conclude, as he had, that the
body was in the garage from the time of the victim’s disappearance or shortly thereafter.
Dr. Francisco testified that the most reasonable explanation for the multiple DNA
profiles was “touched DNA,” caused by contamination in preparation of the swabs,
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preparation of the slides, storage, and handling. He said that in 1975, there were no concerns
about DNA and that no precautions were taken to avoid contamination. He said he did not
prepare a report about possible contamination of the slides. He acknowledged that an
assistant district attorney general provided the information he used to formulate his opinion
about contamination. He did not think he was given specific information about the presence
of a mixture and the gender marker for each slide individually.
On redirect examination, Dr. Francisco testified that the fluid he observed in the
victim’s vagina was small and that decomposition would have produced fluid in the vagina.
He said he would expect to have consistent DNA results on the two swabs. He agreed that
if there were multiple DNA profiles on the five slides prepared, this would indicate
contamination. He said that it was possible to transfer sperm from laboratory samples from
one autopsy to another but that it was “very unlikely.” Dr. Francisco testified that based
upon the lividity of the body, if it was moved from another location after death it would have
had to have been placed in exactly the same position at the original location as it was found
in the garage.
Marie Maxwell testified that she lived on Copeland Drive in 1975 and knew the
victim’s family, who lived across and down the street. She said that on February 25, 1975,
she arrived home about 5:30 p.m. She said that as she was getting her daughter out of the
car, she noticed three people next door at Ms. Howard’s home. She estimated they were
thirty feet away and said there was still enough daylight for her to tell that there were three
people. She admitted she did not see them clearly through the hedge. She said that she
thought one of the people might be the victim and that the victim might be bringing cookies
to her. She said she looked at the people for four to six seconds and did not focus on the
people other than the one she thought was the victim. She said she might have looked at the
people a second time when she brought her daughter around the car. She said she went
inside to retrieve her checkbook and await the victim’s arrival. She identified photographs
taken from her driveway toward Ms. Howard’s home and said that the two people in the
photograph were in approximately the same location as the three people she saw on February
25, 1975, but said that she was standing at a greater distance than the photographer.
Ms. Maxwell testified that she was familiar with the victim’s size. She said the person
who she thought was the victim had a box like the ones used for Girl Scout cookies on the
ground. She acknowledged she could not see the person’s face. She said one of the other
people was “a little bit taller than” the victim and was not facing her. She said the third
person was facing her and was wearing a long, poorly fitted, drab, dark coat. She assumed
the third person was Ms. Howard because Ms. Howard lived on the property alone. She said
she previously described the person as about 5'7" or 5'8", which she based on the person
appearing about one and one-half feet taller than the victim. She recalled the victim reaching
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up to hand something to the taller person. She acknowledged she told the FBI the next day
that she thought the taller person was white. She said that in retrospect, she thought she had
assumed the person was white because Ms. Howard was white and she did not have any
African-American neighbors. She did not, however, recall the person’s race.
Ms. Maxwell testified that the victim’s mother called and inquired about the victim.
She said she told the victim’s mother that she had seen the victim next door about 5:30 p.m.
but that she thought the victim went to the Thorpes’ house because she heard her dog bark
at the back right corner of her yard. She said she assumed the victim was going through the
woods at the back of her property. She said the Thorpes’ garage, where the victim was
found, was about a thirty-second walk from her backyard.
Ms. Maxwell testified that she was interviewed by law enforcement agencies at least
twenty times about the victim’s disappearance. She said that on February 25, she spoke with
several people but was not sure whether they were police officers or media reporters. She
said she felt pressured to provide information that would help find the victim, and later, to
find the victim’s killer. She said she participated in two to four hypnosis sessions around
March 17, 1975, which she did not think were helpful. She said she provided a description
of the taller person, from which a composite sketch was drawn, but she was unsure whether
she had described something she saw or “was just desperate to help.” She acknowledged
telling the police that the person had a dark complexion, but she thought she said this based
upon the person’s complexion in comparison with Ms. Howard’s. She said the person’s hair
was darker than Ms. Howard’s gray hair. She said that based upon the person’s pants, she
described him as being male. She said women did not wear pants often at the time,
especially Ms. Howard. She said she did not think she could identify the taller person. She
said that she was unsure what she saw on February 25 but that she was “pretty sure” she saw
the victim.
On cross-examination, Ms. Maxwell testified that she reviewed her previous
statements before testifying. She said that although she did not know the victim’s family
well, she was familiar with the victim because the victim was interested in Ms. Maxwell’s
one-year-old daughter. She identified a photograph that depicted her driveway, Ms.
Howard’s house and driveway, and the Thorpes’ garage. The Thorpes’ garage was visible
from her driveway. She acknowledged that other than the victim, she did not recognize the
people in Ms. Howard’s driveway. She said that because she thought the victim was one of
them, she did not change her daughter’s outfit in order for the victim to see it, and she
retrieved her checkbook to pay for her cookie order. She said she waited for the victim to
deliver the cookies for twenty to twenty-five minutes, until Ms. Trimble called to inquire
about the victim. She informed Ms. Trimble of her belief that the victim went to the
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Thorpes’ house, based upon the barking dog in the back corner of her yard. She said her yard
was fenced but the Thorpes’ was not.
Ms. Maxwell testified that she was interviewed by several law enforcement agents
while the victim was missing. She said she wanted to help and was not trying to give faulty
information. She agreed that she described the taller person in Ms. Howard’s driveway as
a child but that she did not know the person’s gender. She recalled stating that the child was
white but did not recall being asked whether the child was black. She was certain that the
adult was facing her. She said the person’s coat was knee-length or longer and
acknowledged she may have described it as “an old woman’s coat.” She said the coat was
too big for the person. She agreed she described the person as white.
Ms. Maxwell testified that she attended the victim’s funeral. She did not recall telling
the police that a person named “Demassa” or “Massa” who was at the funeral resembled the
adult she saw in Ms. Howard’s driveway, but she acknowledged that reports created at the
time reflected that she made the statement. She said that at the time the victim disappeared,
she did not know Jeffrey Womack but that she later became familiar with his appearance.
She said she “probably” told the authorities that the person resembled Jeffrey Womack. She
identified a composite sketch that was prepared from her description of the adult in Ms.
Howard’s driveway. She agreed that the sketch depicted a white person, that the sketch was
distributed publicly for a long time, and that she never requested its recall due to inaccuracy.
She agreed that the sketch was prepared from her descriptions during four hypnosis sessions
with the authorities. She said she did not think she was ever under hypnosis during the
sessions because she did not feel like she ever lost awareness of her environment. She said
that she never identified a suspect and that she did not think she would have been able to do
so. She agreed she probably told the police in October 1976 that she never looked at the
adult’s face. She agreed that when she was hypnotized, she had been exposed to outside
information about the investigation. She agreed that Jeffrey Womack came to her door
soliciting money for charity a couple of weeks after the victim’s disappearance. She
maintained that she did not see the person’s facial features and said she was unsure of the
person’s race.
Dr. William Bass testified as an expert in forensic anthropology. He said he was
asked to review the case in 2002 in order to determine the victim’s time of death. He
reviewed the autopsy report, the victim’s dental records, photographs of the autopsy, and
photographs of the crime scene. He identified his written report, which was received as an
exhibit. He said that in his opinion, the victim died at the time of her disappearance. He said
that temperature was the major factor in the decay of a body. He said he reviewed the
records of the temperatures in the thirty-three days between the victim’s disappearance and
the discovery of her body. He said he examined the insect activity relative to the body and
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noted that flies were active only at fifty-two degrees and above. He also noted the presence
and maturity of maggots. He said he agreed with Dr. Francisco that the body was not moved
after the victim’s death.
On cross-examination, Dr. Bass testified that he told defense counsel before the trial
that he had not looked at the crime scene photographs, but he acknowledged that a detective
told him earlier on the day of testimony that he had seen the photographs but had not retained
them. He said he reviewed the photographs that morning but did not recall seeing them
previously. He was unaware in 2002 that the garage did not have doors. He said that this
could be a significant factor but that he did not think it was in this case. He said that he was
not provided with preserved maggot larvae, which would have been helpful. He said he was
not provided with a 1975 entomology report and did not recall seeing the photographs taken
by Dr. Francisco. He acknowledged that his review was premised upon observations made
by others and said the description of the body in the autopsy report was consistent with the
victim’s having been dead for thirty-three days. He said his opinion that the body had been
in the garage for the thirty-three days was based upon the fact that the lividity was unchanged
and Dr. Francisco’s observation that the victim’s clothing was not dirty. He agreed that the
victim’s body could have been elsewhere in an environment under similar conditions.
On redirect examination, Dr. Bass testified that if the victim’s body had been in
another location before it was in the garage, it would have had to have been in a position
“very close” to its presentation at the scene in order to match the rigor mortis pattern. When
shown photographs from the scene, he said the condition of the body was consistent with his
opinions. He agreed that he concurred with Dr. Francisco’s findings.
William Gavin, an expert in forensic serology, testified that he was a former FBI agent
and was employed by the FBI for twenty-eight years. He said that in 1975, he had been
working as an analyst in the serology unit of the FBI laboratory for about three years. With
respect to the procedure for maintaining evidence submitted to the laboratory, he said that
evidence was “signed in” when it was received. He said that they used the case number
assigned by the local agency, that an FBI number would be used if the FBI had an interest
in the case, and that a laboratory number was also assigned. He said that forensic evidence
typically had three numbers. He said that if the substance to be examined was known, this
was designated by a K. Where the composition or identity of a substance was questioned,
this was designated by a Q. He said that when he received evidence, he determined whether
he had been given everything that was supposed to be present. He then conducted tests to
determine the nature of the Q substances. He further marked stains with B, denoting blood,
and S, denoting semen, depending on the substance for which he was looking. He said that
in 1975, they did not photograph the evidence they examined. He said that DNA testing was
not available at the time.
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Mr. Gavin testified that blood testing involved identifying a stain visually, conducting
an initial chemical test, making a cutting, applying a confirmatory chemical test, and
examining the sample under a microscope. If the substance was determined to be blood,
another chemical test was applied and observed microscopically to determine whether the
source was human. If there was enough of the substance for further testing, it was then
grouped by blood type. He said that testing for seminal fluid involved visual inspection and
tactile examination of a stain on a garment, making a cutting, mixing the cutting in a test tube
with a saline solution, placing a sample on a slide, adding a reagent, and examining the slide
under a microscope. He said that the presence of seminal fluid did not allow for a conclusion
that semen was present and that spermatozoa must also be present on the slide to support a
conclusion that a substance was semen. He said that the appearance of spermatozoa was very
distinctive, with a head, neck, and a tail, and that he would not have confidence to conclude
that spermatozoa were present if he merely observed segments. He said he would not work
on two cases simultaneously due to the risk of contamination.
Mr. Gavin testified that he examined evidence in the victim’s case. He said that
although he prepared notes when he conducted his examination, he learned when he was
called to testify that his notes were destroyed, although his reports were not. He said that
after he conducted his testing, he would have returned the notes and evidence to the person
or persons who gave him the evidence and would have given them his conclusions. He said
the conclusions from various laboratory examinations would have been typed into a report.
He identified a report containing his findings and identified the laboratory number, PCL7190,
the FBI number associated with the victim’s kidnapping, 7-15942, and his initials used on
the report, OJ. He said he used his own initials when identifying evidence. Referring to the
report, he testified that Lieutenant J. Wise delivered the evidence to the laboratory on March
31, 1975.
Mr. Gavin identified underwear that he examined for the presence of blood and semen
and testified that neither was present. He identified a pair of pants and said he found semen
containing spermatozoa on them, but not blood. He identified a blouse and said he found
blood on the sleeve but was unable to obtain a blood type grouping. He found semen
containing spermatozoa on the blouse. Mr. Gavin stated that in 1975, cuttings made from
evidence were partially consumed in the testing process and that the remaining portions were
not retained. He said he was not provided with any of the Defendant’s bodily fluids for
serology examination.
On cross-examination, Mr. Gavin testified that he recognized the items he tested based
upon their identification number, not his specific recall of having tested them thirty-four
years earlier. He said that although he did not have specific memories of conducting
individual tests in this case, he was confident from the documentation and identifying
-12-
information that he worked on the case. He said his name did not appear on the report but
that the initials OJ designated him. He said the identities of others who handled the evidence
were likewise designated by initials, not names.
Mr. Gavin testified that in the victim’s case, Agent John Hipperd received the
evidence first and designated the Q numbers. He said Agent Hipperd conducted microscopic
analysis and then gave the evidence to him. He said that three people examined the evidence
but that he was unsure of the third person’s identity and the nature of the testing done by that
person. He said that laboratory aides who worked under the supervision of the analysts might
have handled the evidence. He said he could not identify the date when he conducted the
examination but said the information would have been recorded in his notes.
Mr. Gavin testified that protocol called for garments to be packaged individually. He
said that evidence was examined in the laboratory in a specific order and that in a rape case,
microscopic analysis for hair and fibers was conducted before the serological examination.
He acknowledged that he did not wear gloves when performing the tactile examination. He
said the number of cuttings he made on the various garments would have been recorded in
his notes. He acknowledged the report did not state the number of cuttings, the results for
the individual cuttings, or the number of spermatozoa he observed. He said that the
microscopic testing he performed to determine the presence of semen was considered reliable
at the time. He conceded that he had not worked at the FBI laboratory since 1977 and that
he did not know the current testing standards. He said the semen grouping tests were
inconclusive. He said that as a matter of customary practice, the cuttings and slides would
have been discarded. On redirect examination, Mr. Gavin testified that during his time in the
FBI laboratory, he never had a semen sample from any individual associated with this case.
Metro Police Captain Mickey Miller testified that he was presently in charge of the
warrant fugitive division but that he was assigned to the criminal investigation division in
1990, when he reviewed the victim’s case file. He said their review was for evidence to
submit for DNA testing. He identified the victim’s blouse and jeans. He said they retrieved
slides that had been stored by the medical examiner’s office in Memphis. He said that the
medical examiner had been unable to locate the slides when they first requested them but that
the slides were located about two-and-one-half weeks later in a basement file cabinet. He
said the jeans were submitted to the FBI laboratory and then to CDR Laboratories. He said
a DNA profile was identified in March 1992. He said that due to advancing technology, the
jeans were sent to the TBI laboratory in 2000 and to the FBI laboratory in 2004. He said the
slides were sent to the FBI initially, returned in December 1990, sent to CDR Laboratories,
and sent to CDR a second time in 1994. He said the slides were also reviewed by Roche
Biomedical, which later became Lab Corp, and by Joe Minor of the TBI. He said the blouse
was sent first to the FBI laboratory, then to CDR. The blouse was also sent to the TBI in
-13-
2000 and to the FBI in 2004. He said that over 100 samples were obtained for DNA testing,
including those of Jeffrey Womack and Bill Massa. He agreed they tried to obtain DNA
samples for almost everyone in the victim’s neighborhood.
On cross-examination, Captain Miller testified that Detective Tommy Jacobs reopened
the investigation in August 1990. He agreed he was not involved with the investigation until
1990 but said Detective Jacobs had been involved since the night of the victim’s
disappearance. He agreed that DNA testing in 1990 required blood to be drawn but that it
could now be accomplished from swabbing a person’s cheek. He agreed that the majority
of people gave a biological sample voluntarily but that a search warrant had to be obtained
to draw blood from some of the people. He also agreed that numerous polygraph tests were
administered. He thought that all of the people whose blood was drawn and who were given
polygraph tests were white males.
Captain Miller acknowledged that a report was prepared from a 1991 exercise in
which various officers played the roles of the victim and other individuals in the case in order
to reconcile the various timelines. He said, however, that they were unable to reconcile the
timelines. He could not recall whether he met with Ms. Ray, a library employee, on the same
day as the exercise or the following day, regarding “the bus exercise.” Captain Miller
identified an undated police photograph as appearing to be the same as the Defendant’s 1975
police photograph, which he reviewed previously.
On redirect examination, Captain Miller testified that Jeffrey Womack took several
polygraph examinations. He said that in the 1991 exercise, he was unable to disprove Mr.
Womack’s alibi.
Charles “Friday” Blackwood testified that he was a private investigator and was a
former crime scene investigator for the Metro Police Department. In September 1991, he
visually examined the victim’s pants, shirt, underwear, and boots using an alternate light
source. He said he was looking for items such as stains, fibers, or hairs. He said that to his
knowledge, the police department did not have alternate light sources in 1975 and that
alternate light source technology continued to improve after 1991. He said that he identified
five areas showing contrast on the victim’s jeans and that he marked and made cuttings for
further examination. He said he did not identify any contrasting areas on the victim’s blouse,
and he explained that the alternate light source did not detect all stains. He said a sample was
collected from a stain on the victim’s underwear, another from the victim’s left boot, and two
from the victim’s right boot. On cross-examination, Mr. Blackwood testified that he
collected hair and fibers from the victim’s jeans.
-14-
Davidson County Sheriff’s Investigator Michelle Ray testified that she reviewed
recorded video footage from the jail in which the Defendant was confined. The recording
was received as an exhibit.
Sheldon Anter testified that he and the Defendant were housed in the Davidson
County Jail in the summer of 2008. He acknowledged that he was an illegal alien from
Trinidad facing deportation proceedings that were deferred until after he testified in the
Defendant’s case. He acknowledged that he testified previously in another matter involving
the Defendant and that the State requested that federal authorities release him into the
community in order for him to testify in the present case. He denied receiving other benefits
for his testimony. He said that he had been convicted of worker’s compensation fraud and
that a theft charge was retired in exchange for his agreement not to appeal the fraud
conviction.
Mr. Anter testified that while he was in jail with the Defendant, they talked “pretty
much” every day. He said they discussed their respective cases. He said that the first time
the Defendant mentioned the case involving the victim, the Defendant stated that the
Defendant’s DNA was on the victim but denied raping the victim. He said they had another
conversation on the roof in which the Defendant admitted killing the victim but denied raping
her. He said the Defendant stated that his DNA was on the victim but not inside her. He said
that another time, a television program featured information about the victim, prompting the
Defendant to say to Frank White and him that the authorities found the Defendant’s DNA
on the victim. He said the Defendant stated that the authorities were about to obtain
fingerprints from him and perform tests. Mr. Anter recalled another occasion in the
recreation room when he and Mr. White inquired why the Defendant’s DNA was on the
victim, given the Defendant’s previous denial of any knowledge of the victim. He said that
the Defendant admitted that his DNA was on the victim and that the Defendant claimed to
have killed but not raped the victim. He said the Defendant made the same statement on
another occasion when he, Mr. White, and Jerome Napper questioned the Defendant about
the victim.
Mr. Anter testified that on August 16, 2008, Mr. White was taunting the Defendant
about being a “baby killer and a rapist.” He said the Defendant responded, “I have killed
before and I have no problem killing you.” He said the Defendant went inside Mr. White’s
cell and stated that the Defendant would kill Mr. White as the Defendant had killed before.
He said that Mr. White pushed the Defendant away and that the Defendant said, “I will kill
you like I’ve killed before.” He said the Defendant also claimed to have killed but not raped
the victim. He said that later the same evening, Mr. White continued to taunt the Defendant
and that the Defendant continued to admit killing the victim but denied raping her. He
acknowledged that it was not good to be known in jail as a child rapist. He said the incident
-15-
was documented on videotape. The video recording introduced during Ms. Ray’s testimony,
which had no audio, was played for the jury as Mr. Anter narrated it. Mr. Anter said he did
not report any of the Defendant’s statements to the police until he was questioned by
Detective Coleman about ten days after the August 16 incident. He denied requesting the
meeting with Detective Coleman.
On cross-examination, Mr. Anter testified that he had been in the United States for
twenty-four years. He said he had family, a fiancee, and children in the country. He said
that before his arrest, he planned to live the rest of his life in the United States. He said he
feared for his life if he returned to Trinidad. He acknowledged that he knew in March 2008
that he faced deportation proceedings. He acknowledged that he hired an immigration
attorney to help avoid his return to Trinidad but denied that he was using the Defendant as
leverage in the deportation matter.
Mr. Anter acknowledged that the pod in which he and the Defendant were housed was
small, that there was only one television in the pod, and that he first heard the victim’s name
on television, not from the Defendant. He agreed that Mr. Napper and Mr. White had been
his cellmates at times. He acknowledged that the inmates spoke to each other through the
vents and that conversations could be heard throughout the pod. He acknowledged that he
did not know the Defendant until he requested and was moved into the pod on May 21, 2008,
and that the Defendant was already in the pod when he arrived. He said he asked the
Defendant what his charges were but denied asking questions about the victim. He
acknowledged that the Defendant did not answer him. He denied asking the Defendant about
writing a letter to the District Attorney General regarding another inmate.
Mr. Anter acknowledged that he spoke with Mr. White frequently about Bible study,
although they had not known each other before being in jail. He said the Defendant and Mr.
White did not like or trust each other. He agreed he told Detective Coleman about Mr.
White’s statement that Mr. White would kill the Defendant because the Defendant was a
“baby killer.” He agreed that Mr. White had information from the internet about other
inmates in his cell and that the materials were contraband in the jail. He said Mr. White had
a photograph of the Defendant. He said he was never questioned about Mr. White’s
possession of the materials.
Mr. Anter denied that Corporal Antonio Johnson, one of the jailers, allowed him to
come out of his cell when the other inmates were locked inside their cells. He denied that
he asked Corporal Johnson about the Defendant. He acknowledged that as time passed, he
and the Defendant did not get along well. He said the Defendant approached and threatened
him when he was playing cards with other inmates. He said he overheard the Defendant
talking to other inmates in addition to the Defendant’s statements to him. He acknowledged
-16-
that Mr. White became his cellmate the night of August 16, 2008, and that he told the
Sheriff’s Department that he wanted to report a crime. He said that the crime was a fight
between Mr. White and the Defendant and that he told them he did not want to explain the
details of the incident. He acknowledged that when he was questioned about the Defendant,
he told the authorities he had notes of everything that occurred in the pod. He said, though,
that he later flushed them in the toilet.
Mr. Anter denied that he committed the theft that was the basis for the retired felony
charge or that he tried to defraud a business by using a receipt for previously purchased
goods. He denied telling his sister that the State was going to help him with his immigration
case in exchange for his testimony in the other matter involving the Defendant. He said that
he did not ask for the State’s assistance and that the only thing the State did was write a letter
requesting that he remain in the United States in order to testify. He denied that he
previously refused to testify unless his custody status was changed but explained that he
demanded to be released in order to deal with the immigration case. He said that he refused
to testify because he wanted to avoid cameras and that the Defendant had threatened his life
and his family. He said he had been deported previously. He agreed he had been released
from federal custody and was home with his family in Nashville but said his deportation
proceeding was still pending.
On redirect examination, he identified the Defendant in the courtroom. He agreed he
had a good relationship with the Defendant at times. He agreed he had no knowledge
whether his lawyer requested that the district attorney’s office write a letter on his behalf
regarding the deportation proceeding.
Metro Police Detective Hugh Coleman testified that on August 26, 2008, he was
assigned to the Homicide Cold Case Unit. He said he interviewed Sheldon Anter about
possible statements made by the Defendant. He said Mr. Anter cooperated and did not
request anything, nor did he promise Mr. Anter anything in exchange for the statement. On
cross-examination, Detective Coleman testified that Mr. Anter claimed to keep information
to himself. He agreed that Mr. Anter did not know ahead of time that the sheriff’s
department was going to interview him.
Andrew Napper, an inmate, testified that he was present when a news story about the
victim was on television at the jail. He said that Mr. Anter made a remark to the Defendant
and that the Defendant stated, “I killed her, I didn’t rape her.” He said that he did not report
the statement to the police but that he revealed it when the police questioned him. He
acknowledged his own lengthy criminal record, which included convictions for burglary,
robbery, forgery, theft, escape, and criminal impersonation. He also acknowledged that he
had worked as a paid police informant in drug cases. He had a pending probation violation
-17-
case. He denied making any deals with the State other than his transfer to another county for
protection following his testimony.
On cross-examination, Mr. Napper acknowledged writing a letter to the district
attorney about an inmate other than the Defendant in which he requested assistance with his
case in exchange for his testimony against the inmate. He said he never received a response.
He denied that he made statements to jail workers claiming that he made a deal which would
require him to serve sixty days of a five-year sentence.
Will Griffith testified that he was Andrew Napper’s attorney. He said the State did
not promise anything to his client aside from its agreement that Mr. Napper could be
transferred to another county if he testified in the Defendant’s case.
Metro Police Detective Pat Postiglione testified that he was the sergeant in charge of
the Homicide Cold Case Unit. He said that in the course of investigating the victim’s
homicide, the police determined that the Defendant lived in Nashville in 1975, that the
Defendant lived in Memphis in 2007, and that they obtained a search warrant for the
Defendant’s DNA sample. He said a DNA sample was collected by swabbing the inside of
the subject’s mouth on both cheeks. He identified the swabs used to collect evidence from
the Defendant and said they were first sent to the TBI laboratory and later sent to the SERI
laboratory in California. He said the SERI laboratory conducted DNA testing using the same
method used to test the victim’s jeans in 1991. He said that the method of testing was no
longer prevalent but that they had to use the same means for the Defendant’s sample as had
been used to test the victim’s pants. He said that after the testing, the Defendant was indicted
and arrested.
Detective Postiglione testified that he interviewed Andrew Napper at the CCA
correctional facility on September 11, 2008. He said Mr. Napper did not request the
interview but was cooperative. He said he did not offer assistance, nor did Mr. Napper
request it. He said a paid police informant must be truthful and reliable. On cross-
examination, Detective Postiglione testified that he learned through the investigation that the
Defendant was in jail part of the time the victim was missing, beginning on March 12, 1975,
and continuing through the time the victim’s body was found.
Janice Williamson testified as an expert in DNA analysis and said that from 1974 until
1997, she was employed with Center for Blood Research (CBR) Laboratories as the manager
of clinical laboratories. She said that from 1990 until 1994, she worked with the forensic
section of CBR Laboratories. She said the laboratory conducted two types of DNA testing,
PCR testing for forensic applications and RFLP testing for paternity applications. She said
that PCR testing was better suited for forensic settings because it allowed for amplification
-18-
of old or small samples. She said that DNA could degrade but that it could not change its
genetic composition. She identified DQ Alpha testing as a type of PCR testing the laboratory
used in the early 1990s.
Ms. Williamson testified that the procedure for newly submitted evidence was to make
a log entry for the sample, assign a unique case number, and photograph the evidence.
Individual numbers were also assigned for each item pertaining to a single case. She said
that the evidence would be stored in the best location for the type of evidence. She said that
she worked with a team that included Dr. David Bing and Susan Mitchell and that they
worked collaboratively when determining the strategy for testing samples, that at least two
of them read the results independently, and that they discussed any discrepancies. She said
Dr. Bing was deceased. After the evidence was documented, the team would discuss who
was going to test the evidence and the procedures that would be used for the tests. She said
that the evidence relative to the victim’s homicide was numbered F131 and that some of the
records of the testing done with respect to the victim’s homicide were no longer available,
including a notebook and photographs.
Ms. Williamson described the process of differential extraction, whereby an analyst
separated “fractions” of cells in two groups to determine whether it was possible to isolate
DNA in each type of cell. The laboratory compared the DNA profiles of stains on the
victim’s clothing with the victim’s DNA from her hair roots. The laboratory results reflected
that the victim’s DQ Alpha Type was not the same as that on two samples from the victim’s
jeans. The laboratory report, which was received as evidence, reflected that ten individuals
whose biological samples were submitted were ruled out as the contributor. These
individuals included Mr. Womack, Mr. Egerton, and Mr. Mesa.
Ms. Williamson identified slides that the laboratory received on April 6, 1994, and
testified that the slides were previously received on September 18, 1991, and that numbers
were assigned, but that no testing was done at that time and they were returned to Nashville.
She said that in 1994, the slides were assigned new individual numbers but retained the same
case number. She said the slides were opened and the material was tested for DNA evidence.
She said that because some of the slides had mixtures of DNA from multiple persons, she
sent the slides to another laboratory for further testing. On cross-examination, she identified
the laboratory where the slides were sent as Roche Lab in North Carolina.
Megan Clement, the technical director of the forensic identity department of
Laboratory Corporation of America in Research Triangle Park, North Carolina, testified as
an expert witness in DNA analysis and said that in 1994, “Lab Corp” operated with a
different business name. She received approximately eighty-one vials of extracted DNA,
slides, cloth material taken from a pair of underwear, and the victim’s reference sample,
-19-
which were shipped from Dr. Bing at CBR Laboratory. She stated that her laboratory was
able to examine eight areas of DNA, whereas Dr. Bing’s laboratory could only examine one.
Ms. Clement testified that a laboratory number for her laboratory was assigned to the
evidence. She said they tested samples from thirty-five people who had not been ruled out
by the testing done at CBR Laboratory. She stated that with one exception, her laboratory
relied on the DQ Alpha test results developed by CBR Laboratory. Her laboratory developed
a DQ Alpha type for one sample that CBR had been unable to develop. She said that none
of the known DNA profiles matched the slides from the victim’s body and that they were not
given a sample from the Defendant. She said they could not verify the victim’s DNA on any
of the slides they tested, although she would have expected to find the victim’s DNA from
the vaginal swabbings. She said, though, that there were DNA mixtures on all but one of
these slides. She said that similar results were expected but that completely different results
were not. She identified three samples containing two or more DNA profiles and said that
the combination of the contributors to the mixtures varied. She stated that DNA from at least
five people was in the mixtures and that there could have been as many as six to eight. She
said there were numerous ways in which extraneous DNA might reach the slide, including
someone who touched the slides, spoke near the slides and deposited saliva, or sneezed on
the slides. She doubted that gloves were worn in laboratories in 1975 and said that she did
not wear gloves when she began doing serological analysis in 1985.
Ms. Clement testified that she did not examine whether there were sperm cells on the
slides, nor did she determine the gender of the contributors. She said technology to
determine the sex of the contributor was not available at the time. She said sperm cells broke
down over time and could become unidentifiable. Ms. Clement said that her laboratory
tested the substance on the slide that CBR Laboratory had not been able to type with the DQ
Alpha process and eliminated all thirty-five known samples as not matching the DNA on the
slide. She said the eliminated samples included the victim’s known sample.
On cross-examination, Ms. Clement testified that her laboratory used what was
cutting-edge technology at the time. She said that technology existed at the time of the trial
that allowed analysis of a DNA profile to determine whether it was from a sperm cell but that
her laboratory did not have the technology when it conducted the testing. She said that the
probability of the profile that was developed matching someone in the Caucasian population
was approximately one in 180,000 and that it was one in 10,800,000 for the African-
American population. She said that after the initial testing, the laboratory received seventeen
additional samples to test. After their testing was complete, they sent the slides to the
Nashville authorities.
-20-
On redirect examination, Ms. Clement testified that although the victim’s underwear
was tested, they were unable to obtain any DNA results. She acknowledged that upon
microscopic examination of apparent sperm cells, the substance might actually be yeast or
overlapping cell nuclei.
Retired Berry Hill Police Officer Tommy Lunn testified that he was on duty on March
12, 1975, around 8:30 p.m., when he was called to an apartment complex, where he arrested
the Defendant. He said the Defendant was wearing a full length coat, a ski mask, a second
hat, and two pairs of gloves. He identified the Defendant’s booking photograph and clothing.
He said the Defendant gave a home address that was eight or nine miles from the arrest
location. He said that at the time of the arrest, the Defendant was 6'2", 150 pounds, with
black hair and brown eyes. On cross-examination, Officer Lunn testified that the Defendant
reported that his employer was the Nation of Islam.
TBI Special Agent Forensic Scientist Joe Minor testified as an expert in DNA analysis
and said that on August 25, 2000, he received the victim’s blouse and slides for testing. He
analyzed the blouse with an alternate light source and noticed stains. He did not receive
results from presumptive testing, but he explained that this did not eliminate the possibility
that DNA or semen was present. He said Jennifer Luttman performed additional testing to
develop the DNA profiles.
Agent Minor testified that he was familiar with the methodology for serology testing
in the 1970s and 1980s. He said that a swab of a person’s vaginal area would be air dried up
to sixteen hours and then packaged in paper. Air drying involved removing the swab from
the tube and exposing it to air. He said he tested the swabbings of the slides prepared by Lab
Corp. He developed one profile from the swabbings. He said that it was a male profile but
that he could not say whether it was sperm or another type of cell. He said that the statistical
probabilities for the profile were that it would match one in approximately forty-one billion
individuals in the Caucasian population, and one in one trillion in the African-American
population. He considered it a “strong profile.” He placed the profile in the CODIS system,
a national database of DNA profiles, and did not receive a match. He said he did not receive
a match from any of the other profiles from samples that were submitted. He said the male
profile from the slide did not match the Defendant’s profile. He acknowledged that he tested
the Defendant’s DNA recently and did not have DNA samples from Dr. Bell, Dr. Petrone,
or the Memphis laboratory for comparison.
When asked how many rape kits he had worked with in homicide and rape cases,
Agent Minor said, “[H]undreds, thousands perhaps.” He said he had never seen a rape kit
that did not contain the victim’s DNA. He said he would have expected to receive different
results and varying mixtures from the five slides prepared from the two vaginal swabs from
-21-
the victim’s autopsy. He said that DNA would be transferred if the laboratory personnel did
not wear gloves or if they made their own swabs to collect the evidence and that performing
a vagina examination without wearing gloves could also transfer DNA, as could touching the
slides without gloves. He said that the current practice was to wear gloves and laboratory
coats, and to limit conversations in the lab due to the easy transfer of epithelial cells. He
agreed he did not have a known sample from the Defendant for testing until 2007. Agent
Minor thought it would be unusual to find intact sperm inside a vagina thirty-three days after
sperm was deposited.
On cross-examination, Agent Minor testified that the testing of the slides in 2000 used
technology that was not available at the time of the previous testing. He was confident that
the male contributor identified from one slide was from one person and could only have
come from a male. He said, however, that testing was not done to eliminate Dr. Francisco
or Dr. Bell as the contributor. He reiterated that the Defendant was not the contributor and
did not recall telling Captain Mickey Miller otherwise. He acknowledged that DNA was
developed from only one of the two differentiated cell types in the sample. He said he
compared sixty-three samples with the profile on the slide. He said the presumptive test he
used to detect the possible presence of semen on the victim’s shirt was still considered
reliable. On redirect examination, Agent Minor clarified that he told Captain Miller that the
slide contained a sperm fraction, which referred to male cells, not necessarily to sperm. He
said it was possible for DNA not to be shown in a presumptive test but found in microscopic
analysis.
Gary Harmor, a forensic serologist with The Serological Research Institute, testified
as an expert in DNA analysis. He said that advances had been made in DNA technology and
that that current technology allowed for identification of anyone other than identical twins.
He said DQ Alpha testing was no longer widely used because it was not as sensitive as STR
testing now used. He said DQ Alpha testing used only one marker, which would yield
different test results in two people about ninety-six percent of the time. In contrast, STR
testing was more discriminating because it used about fifteen markers.
Mr. Harmor identified the Defendant’s reference sample, which he received on
December 12, 2007. He identified the packaging in which he received the sample and the
case number assigned by his laboratory, which was M’73-7531’07. He said that when the
sample arrived in his laboratory, it was “logged in and stored in a secured area, frozen.” The
case file was established and assigned to him because he was the only person in the
laboratory who did DQ Alpha testing. He gave the reference sample to Amy Lee, who
worked in a separate reference sample room. The reference sample room existed to keep
reference samples away from unknown samples. Ms. Lee performed testing and gave him
the extracted DNA. Mr. Harmor amplified the extracted DNA, determined the typing, and
-22-
wrote his report. He identified two reports he prepared. He said that the first, dated January
28, 2008, stated an incorrect date for his receipt of the evidence, and that the second, dated
July 8, 2009, corrected the error.
Mr. Harmor testified that the original DQ Alpha testing only tested for one marker,
but that more recent tests allowed testing for four markers. Using the four-point test for
comparing the Defendant’s sample with the crime scene evidence, he determined that the
Defendant’s DQ Alpha DNA type was the same as that on the victim’s right front pants leg
and inside pants leg. He also determined that the victim was not the source of the DNA on
the pants leg. He said the test results excluded ninety-two percent of the population. On
cross-examination, Agent Minor testified that DNA testing did not reveal how or when a
sample was deposited.
TBI Special Agent Chad Johnson testified as an expert in forensic science and DNA
analysis and said that in STR DNA testing, thirteen loci and the sex-determining marker were
analyzed. He received the Defendant’s sample on October 25, 2007, analyzed it, and issued
his report on November 7, 2007. He said he did not receive any physical evidence from the
victim’s homicide. He sent his report to the FBI when it was requested.
Jennifer Luttman, an expert in forensic DNA analysis, testified that she was the chief
of the CODIS Unit of the FBI and had worked as a DNA examiner. She said the FBI
followed multiple procedures to avoid contamination or cross-contamination of biological
samples. She said that the examiners had only one item on their workbenches at a time, that
they cleaned their workbenches and implements, and that they covered their workbenches
with butcher paper for each item of evidence. She said the DNA analysts ran control tests
to ensure accuracy.
Ms. Luttman testified that the FBI conducted short tandem repeat (STR) analysis, for
which there were three possible outcomes. If the profile from evidence was found to match
a known reference sample, it was reported as an inclusion, or DNA match. Alternatively, if
the two did not match, it was reported as an exclusion. She said that when DNA was found
but the information was not sufficient to allow confidence, it was reported as inconclusive.
She said they also conducted probability analysis based upon four population groups. She
said the laboratory could determine whether a sample contained DNA from more than one
person and the relative proportions from the different sources.
With respect to the laboratory procedures, Ms. Luttman testified that a sample must
be accompanied by a letter explaining the nature of the crime and detailing the evidence
submitted. She said the evidence was given a laboratory number that was based on the day
the evidence was received and whether the source was questioned or known, and followed
-23-
a numerical pattern. She said that the evidence was also assigned a case file number if it was
submitted from a state or local agency and that the case file number would have been
assigned previously if the evidence was submitted from an FBI field office. She said that the
evidence was inventoried and that its transfer to units within the laboratory was documented.
She said that each analyst was assigned a two-letter identifier and that hers was MD. That
identifier was noted on the evidence she was assigned to examine.
Ms. Luttman testified that evidence from the victim’s homicide was received in the
laboratory on March 29, 2004. The evidence was also submitted in 1975 and 1995. From
its 1995 analysis, it was already assigned case number 7-15942 and laboratory number PC-
L7190NUOJJP. She said that the policy for assigning case numbers changed and that
evidence from the victim’s homicide was assigned new case number 95A-HQ-1460421, the
new laboratory number for the victim’s head hair was 040329005UJMD, and the new
laboratory number for the victim’s clothing was 040405031UJMD. She said that the
laboratory’s policy was not to re-examine previously analyzed evidence but that there was
an exception if the notes from the previous analysis could not be found, as with the 1975
notes in this case. She said that additional examinations but not re-examinations might also
be warranted due to technological advances. She said that despite the absence of the 1975
notes, the reports from 1975 were available.
Ms. Luttman testified that serology testing was conducted in 1975 and that RFLP
DNA typing analysis was conducted in 1990. She said that there had been advances since
the introduction of RFLP testing, which required a large sample that was not degraded. With
respect to samples from the victim’s jeans and blouse, she said that no DNA profile was
obtained through RFLP testing and that the stains were consumed in the testing process.
Ms. Luttman testified that the evidence from the victim’s jeans and blouse was re-
analyzed in 2004. She said that after biologists conducted tests, she analyzed the results and
determined that semen was present on one sample from the victim’s jeans and two samples
from the victim’s blouse. The samples from the the victim’s blouse and jeans were submitted
for DNA testing. She said samples from the victim’s underwear were tested by the serology
unit and were negative for semen. She said the DNA testing on the jeans did not establish
that DNA was present. She said that DNA from more than one person was present on the
victim’s blouse and that they were able to obtain a profile for the major contributor and
determine that the person was male. DNA from the minor contributor was only present at
two locations, which was below the laboratory’s threshold for conclusive results. Ms.
Luttman said that due to the small quantity of DNA from the major contributor, she was only
able to examine nine of the thirteen loci. A known sample of the victim’s DNA was
compared and did not have the same profile as the DNA from the major contributor for the
blouse. The comparison of the victim’s DNA to the minor contributor’s DNA was
-24-
inconclusive but consistent with the victim’s DNA. The comparison allowed for elimination
of some individuals as the minor contributor. She said that the evidence was returned to local
authorities and that a report was generated. The report was received as an exhibit.
Ms. Luttman testified that she placed the profile she obtained from the evidence into
CODIS in August 2004. In the fall of 2007, she received information about the evidence that
she gave to the local authorities. The TBI later provided her with the Defendant’s DNA
profile, although she was not given the cheek swabs. She said the Defendant’s DNA profile
matched the major contributor’s profile developed from the blouse. She said the random
match probability was one in six trillion. She said the probability of selecting an unrelated
person from the general African-American population was approximately one in five
quadrillion. The probability in the Caucasian population was approximately one in 160
quadrillion. The probability in the Southeastern-Hispanic population was approximately one
in 230 quadrillion. The probability in the Southwestern-Hispanic population was
approximately one in 2.2 quintillion. She said the Defendant was eliminated as the source
of the minor contributor. Her report was received as an exhibit.
On cross-examination, Ms. Luttman agreed that the FBI laboratory used a team
approach with “different people routinely conduct[ing] different aspects of testing.” She
agreed that the laboratory’s reports did not specify each member of the team and each
person’s participation in the testing, but she said that the information was in the case notes.
With respect to the 1975 analysis, Ms. Luttman acknowledged that she was not able to tell
where cuttings were made on the blouse. She said she did not know when cuttings were
made or how many people handled the blouse before it came to the laboratory in 1975. She
said she had information about the 1990 blouse cuttings’ approximate locations and that the
notes from 1990 state that the cuttings were taken from the same area. She acknowledged
that the cuttings she made in 2004 were not from the immediate area of the previous cuttings.
She said the stains from 1975 and 1990 were consumed in the testing process. She said that
the victim’s boots were tested in 2004 and that blood and semen were not detected.
Ms. Luttman testified that she did not know what the FBI laboratory’s protocols were
in 1975 because she was not employed there at the time. She agreed the protocols were
different in 2004 than in 1990. She acknowledged that there were new protocols in place in
2004 because a biologist had not followed existing protocols in 2002, which had required
repeating work in many cases. She said that although there were thirty-one
recommendations, the protocols did not change drastically. On redirect examination, Ms.
Luttman said that the person who did not follow protocols did not work on the present case.
The defense called retired Metro Police Officer Bill Fallati, who testified that he was
employed in the Youth Guidance Division in February 1975. He said he was assigned to
-25-
investigate the victim’s disappearance. He recalled searching the Thorpes’ garage for the
victim about one and one-half to two weeks after her disappearance. He said it was mid-
morning and daylight. He said the Trimble home was approximately 100 yards from the
garage. He said that he asked his partner, David Mincey, to accompany him during the
search but that he went alone because Officer Mincey had other duties. He said he did not
see a child lying on fertilizer bags in the corner of the open garage. He acknowledged that
he did not create a report about his search.
On cross-examination, Mr. Fallati acknowledged that earlier in the week of the trial,
he told Captain Miller he was not 100% sure the body was not in the garage. He conceded
that it was possible the body was in the garage. On redirect examination, he said that he did
not think there was a body in the garage but that there was “some possibility.”
Ewen Robert “Bobby” Downs testified that in February 1975, he was a police recruit
in training at the police academy. He said he left the police department in January 1980. Mr.
Downs said that as part of the investigation of the victim’s disappearance, he and his partner,
Larry Felts, were asked to search the area near the Thorpes’ garage, the garage, and in the
Trimbles’ neighborhood. He said that “pretty much the whole class” of recruits was involved
in the search. He could not recall how long after the victim’s disappearance the search
occurred, although his report stated it was February 28, 1975. He said he was looking for a
living person, not a body.
With respect to the search of the garage, Mr. Downs testified that he and Mr. Felts
used a systematic method whereby he searched right to left and Mr. Felts searched left to
right. He said that he inspected the inside of the garage, that he emptied wood from a bin,
that he looked under a swimming pool, in fertilizer bags, on shelves, and around a table, but
that he did not see the victim or any boxes of Girl Scout cookies. The diagram he drew
hastily after searching the garage was received as an exhibit.
On cross-examination, Mr. Downs testified that after leaving the police department,
he had done iron work, odd jobs, and been a district manager of furniture stores. He did not
recall how many places he searched for the victim, although he remembered the garage
because he “felt very strange” about it. He did not recall Billy Butler being present during
his search of the garage. He said he expressed his “gut feeling” about the garage in a
meeting of the recruits held after the victim’s body was found. He said Mr. Felts also
expressed his strange feeling about the garage. He said that they had not yet been told that
the victim’s body had been found and that he was asked to draw a diagram of the garage. He
said he also wrote a three-page report at the request of his superior officer but did not recall
when it was written in relation to his drawing the diagram. He denied that he was taken to
the garage to view it again before he created the diagram and the report. He maintained that
-26-
he remembered specific items in the garage that were mentioned in his report, even though
it was created thirty-one days after the search. He said a hole in the back of the garage and
the open front of the garage allowed him to see the fertilizer sacks clearly. He denied that
he was fearful of losing his job because the body was not found during the search.
Mr. Downs denied that he involuntarily resigned from the police department after
being charged with fraudulent breach of trust. He said that it was possible he was charged
at the time he resigned but that he could not remember without “see[ing] the paperwork.”
John Thorpe, Jr., testified that he was fourteen years old in 1975 and that he lived on
Estes Road with his parents and older sister. He said the victim’s body was found in his
family’s garage and identified a diagram of the neighborhood. He said that the house was
thirty yards from Estes Road and that the detached garage was ten to twenty feet from the
house. He said that the garage was used to store items such as garden tools, fertilizer,
lawnmowers, and a bicycle, and that his parents did not park their cars in the garage. He said
his family had a German Shepherd/Laborator mix dog that was allowed outside unleashed.
Mr. Thorpe testified that on February 25, 1975, he came home around 5:15 to 5:30
p.m. from school and basketball practice. He ate a snack inside the house for about ten to
fifteen minutes and left through the back door to go to the Ettinger home to play basketball.
He said he passed behind the garage as he went through his back yard, “trotted” through the
Frenches’ backyard and the Ettingers’ backyard, and arrived at the Ettingers’ driveway. He
did not see anyone or hear anything unusual other than the sound of a bouncing ball. He said
he would have remembered if he had seen anyone unusual. He thought that Brooks Ettinger,
Jodie Macey, Overton Tompson, Chuck Trimble, and March Ettinger were playing
basketball. He said that the victim’s home was across the street from the Ettinger home. He
said that while they were playing basketball, the victim’s father came to the door and called
for the victim.
Mr. Thorpe testified that he was sure he went into the garage between February 25 and
March 30 to get a bicycle, garden hose, or other item, but that he did not go into the garage
regularly. He said other family members would have done the same. He said he never saw
anything suspicious in the garage.
On cross-examination, Mr. Thorpe testified that a photograph exhibit depicted his
bicycle near the front of the garage and that he usually kept it near the front. He agreed there
were several neighborhood boys playing basketball that afternoon. He said there had been
a nice path from the Thorpe house to the Maxwell house, although it became overgrown in
the past couple of years since the Maxwells moved into the house. He said that
-27-
neighborhood children typically did not go into the woods to the right of the Maxwell house
but that they played in his backyard.
Mr. Thorpe testified that he did not see the victim or Ms. Maxwell on the night of the
victim’s disappearance. He said that Hal Moffett, who found the victim’s body, was his
uncle. He said that his family’s dog “was free to roam” and that she was allowed to sleep
inside or outside.
Larry Felts testified that he was a police recruit in 1975 and that he worked as a police
officer until his termination in 1992. He said that he pled guilty to misdemeanor attempted
misuse of information as a result of charges that led to his termination. He said he was
presently employed as an attorney. He said he and his fellow recruits searched for the victim
for two weeks. He said that on February 28, he searched behind the Thorpes’ house with
Bobby Downs. He did not recall how long they searched inside the shed. He said Mr.
Downs began on the right and moved to the left and that he searched in the opposite
direction. He said he could see the location where the victim was eventually found. He said,
“[I]t was evident . . . that she was not out in the open. We would have literally almost tripped
over her.” He said the body was not there, nor did he see any Girl Scout cookies.
Mr. Felts said that after the victim’s body was found, the recruits were told of the
discovery and asked who searched the Thorpes’ garage. He said that he and other recruits
had searched several open garages. The commanding officer said there was something
unique about the Thorpes’ garage. He said that when Mr. Downs told the commanding
officer that there was a commode in a garage, he and Mr. Downs were taken to another room
to prepare a report and a diagram. He did not recall going back to the scene before preparing
the diagram.
On cross-examination, Mr. Felts testified that the recruits searched many locations and
buildings for weeks. He recalled that the Thorpes’ garage was “kind of an eye sore” in the
upper middle class neighborhood and that most of the other garages they searched were
enclosed. He acknowledged that he did not write a report about any of the garages he
searched other than the Thorpes’ garage. He did not recall any lights inside the garage but
said that it was daylight and that light was coming through the front. He did not recall Billy
Butler searching with him, but he would not dispute it if Mr. Butler said he did. He said that
although he and Mr. Downs were taken into a room together to write their reports, they did
not confer and wrote the reports separately. He was not positive that he was not taken back
to the scene before writing the report. He maintained that he remembered specific items in
the garage, including golf shoes and a small swimming pool, even though time passed
between the search and his creating a report.
-28-
Mr. Felts testified that his employment was terminated because he told a person who
was later arrested that the person was not going to be “raided,” although his information
proved incorrect. He said he did not appeal a determination that he lied to his superior
officers.
Davidson County Sheriff’s Corporal Antonio Johnson testified that in August 2008,
he worked at the jail. He said that the Defendant, Mr. Anter, and Mr. White were in a
subsection of the unit he monitored and that Andrew Napper was another inmate he
monitored. He said that the pod area was ten to fifteen yards from the recreation area. He
recalled a day when Mr. Anter asked to come out of his cell to clean and said that Mr. Anter
had been requesting to clean for several days. He said Mr. Anter eventually said that Mr.
Anter wanted to talk to him privately. He said Mr. Anter stated that the Defendant’s case had
been on television recently and inquired whether Corporal Johnson knew anything about the
case. He said he told Mr. Anter that he did not become involved in other inmates’ business.
He said that most inmates would not have asked about another inmate’s case.
On cross-examination, Corporal Johnson testified that Mr. White filed a complaint
alleging that he showed favoritism toward the Defendant. When asked whether he disliked
Mr. White, he said Mr. White was “another inmate.” He said he did not know at the time
what the Defendant’s charges were, although he knew the Defendant had been moved to
protective custody.
On rebuttal, Billy Butler testified that he was a retired police officer. He said he left
in good standing. He said he searched for the victim in 1975. His partner in the search was
Ricky Smith, and they also searched with Mr. Downs and Mr. Felts. He thought that during
the search, he saw Mr. Downs and Mr. Felts through a hole or crack in the back of a small
building. He went to the front of the building and watched from the opening but did not go
inside. He recalled seeing a table and a commode inside. He thought Mr. Downs sat on the
table and looked into a back corner. He said that Mr. Downs and Mr. Felts were searching
but did not touch anything inside and that he watched them for “no more than a couple of
minutes.” He said that at the meeting after the body was found, “We were taken back to the
scene and that’s where I was handed a supplement report to fill out.” He said he wrote the
report while looking at the garage.
On cross-examination, Mr. Butler acknowledged that photograph exhibits did not
depict a hole in the back wall of the garage but maintained that to the best of his recollection,
he saw Mr. Downs and Mr. Felts through a hole or crack. He remembered that the garage
did not have doors but not whether it faced the driveway beside the house. He agreed he did
not go past the center post in the doorway. He did not see Mr. Downs or Mr. Felts discover
anything in the garage. Based on the date reflected in his report, he agreed that this search
-29-
was on February 28, 1975. He identified an undated diagram and said he drew it on March
31, 1975, the same day he created the supplement report.
The jury found the Defendant guilty of the lesser included offense of second-degree
murder for the count charging premeditated murder and for the count charging felony murder
in the perpetration of larceny. The jury sentenced him to forty-four years for each conviction.
The trial court merged the convictions and ordered that the sentence be served consecutively
to a life sentence for a previous conviction. This appeal followed.
I
The Defendant challenges the sufficiency of the convicting evidence. He states that
there was no eyewitness account of the crime, that the evidence is circumstantial, and that
the conviction rests “solely” upon proof of his DNA on the victim’s blouse and the testimony
of two convicted felons. The State counters that the proof is sufficient to support the
convictions. We agree with the State.
Our standard of review when the sufficiency of the evidence is questioned 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); State v. Williams, 657 S.W.2d 405,
410 (Tenn. 1983). This means that we may not reweigh the evidence but must presume that
the trier of fact 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). Any questions about the
“credibility of the witnesses, the weight to be given to their testimony, and the reconciliation
of conflicts in the proof are matters entrusted to the jury as the trier of fact.” State v. Dotson,
254 S.W.3d 378, 395 (Tenn. 2008) (citing State v. Vasques, 221 S.W.3d 514, 521 (Tenn.
2007)); see State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
The Defendant’s contention is premised, in part, upon the former standard for analysis
of convictions based solely upon circumstantial evidence. Previously, Tennessee law
provided that for a conviction to be based upon circumstantial evidence alone, the evidence
“must be not only consistent with the guilt of the accused but it must also be inconsistent
with his [or her] innocence and must exclude every other reasonable theory or hypothesis
except that of guilt.” Pruitt v. State, 460 S.W.2d 385, 390 (Tenn. Crim. App. 1970); see also
State v. Crawford, 470 S.W.2d 610, 612 (Tenn. 1971). Shortly after the Defendant filed his
brief, however, our supreme court adopted the United States Supreme Court’s perspective
that the standard of proof is the same, without regard to whether evidence is direct or
circumstantial, eliminating the “every other reasonable theory or hypothesis except that of
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guilt” analysis. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing Jackson, 443
U.S. at 326; Holland v. U.S., 348 U.S. 121, 139-40 (1954)). We will, therefore, conduct our
review in accord with Dorantes. See State v. Sisk, 343 S.W.3d 60, 68 (Tenn. 2011)
(reinstating convictions based on Dorantes analysis after Court of Criminal Appeals reversed
convictions for insufficient evidence under Crawford circumstantial evidence analysis but
noting that intermediate court did not err in applying Crawford because its ruling was pre-
Dorantes).
At the time of the Defendant’s crime, the relevant statute provided that the defining
characteristics of second degree murder were an unlawful, willful, and malicious killing of
a victim. T.C.A. §§ 39-2401 (1975, 1985) (renumbered at T.C.A. § 39-2-201) (repealed
1989), 39-2402 (1975) (amended 1977, 1979, 1988) (renumbered at T.C.A. § 39-2-202)
(repealed 1982), 39-2403 (1975) (amended 1979) (renumbered at T.C.A. § 39-2-211)
(repealed 1989); see, e.g., State v. Johnson, 541 S.W.2d 417, 418-19 (Tenn. 1976); State v.
Shepherd, 862 S.W.2d 557, 565 (Tenn. Crim. App. 1992).
The Defendant challenges both the sufficiency of the proof of the statutory elements
of the crime and that of his identity as the perpetrator or as an aider and abettor to the crime.
In the light most favorable to the State, the record reflects that the victim died from asphyxia
due to manual strangulation. Her injuries were so great that her thyroid cartilage and hyoid
bone were broken. Dr. Francisco testified that this would take considerable pressure because
a child’s cartilage and bones were flexible. The evidence demonstrates that the killing was
unlawful, willful, and malicious and is sufficient to support the conviction for second degree
murder.
With respect to the proof that the Defendant perpetrated the crime, the evidence in the
light most favorable to the State established that the Defendant’s DNA was present on the
victim’s blouse. The chance of the same STR DNA profile occurring in another person was
one in five quadrillion for the African-American population and one in 160 quadrillion for
the Caucasian population. The Defendant’s DNA alpha type was present on the victim’s
pants. This type was shared by only eight percent of the population. Over 100 other
individuals, including virtually everyone from the victim’s neighborhood, were eliminated
as the contributors of the DNA evidence. Two of the Defendant’s fellow inmates testified
that the Defendant admitted that he killed the victim and that his DNA was on her. Their
testimony regarding the altercation between the Defendant and Frank White was consistent
with the video recording of the altercation. There was no indication of any prior
acquaintance or association of the victim and the Defendant that might provide an alternate
explanation of the presence of his DNA on her clothing. Dr. Francisco and Dr. Bass testified
that the victim died at or near the time of her disappearance, which was before the Defendant
was in jail. When the Defendant was arrested, he was wearing a full length coat, a ski mask,
-31-
another hat, and two pairs of gloves. His clothing and physical stature were consistent with
the description Ms. Maxwell gave of the adult she saw in Ms. Howard’s driveway with the
child she presumed was the victim. The Defendant is not entitled to relief.
II
The Defendant contends that the trial court erred in denying his motion to suppress
the evidence obtained pursuant to a search warrant for his DNA sample in another case. The
DNA sample was later matched to the DNA evidence in this case, leading to the Defendant’s
arrest for and charge of the victim’s murder. The Defendant contends that the affidavit used
to obtain the warrant contained a false statement that overstated the evidence supporting
probable cause and omitted material information that was favorable to the Defendant. The
State contends that the affidavit did not contain a material misrepresentation or a material
omission and was supported by probable cause. We conclude that the trial court properly
denied the motion to suppress.
A trial court’s factual findings on a motion to suppress are conclusive on appeal unless
the evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996);
State v. Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Questions about the
“credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts
in the evidence are matters entrusted to the trial judge as the trier of fact.” Odom, 928
S.W.2d at 23. The prevailing party is entitled to the strongest legitimate view of the evidence
and all reasonable inferences drawn from that evidence. State v. Hicks, 55 S.W.3d 515, 521
(Tenn. 2001). The application of the law to the facts as determined by the trial court is a
question of law which is reviewed de novo on appeal. State v. Yeargan, 958 S.W.2d 626,
629 (Tenn. 1997).
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 Court,
whether material or immaterial to the issue of probable cause,
and
-32-
(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. Thus, even an immaterial statement in the affidavit will result in exclusion of the
evidence if the statement is intentionally false. However, “negligence or innocent mistake
[is] insufficient” to support exclusion. Franks, 438 U.S. at 172; see Little, 560 S.W.2d at
406-07. This court has recognized that the Franks analysis has also been applied to material
omissions from an affidavit. See State v. Yeomans, 10 S.W.3d 293, 297 (Tenn. Crim. App.
1999) (citing 2 LaFave, Search and Seizure § 4.4(b) (3d ed.1996)). Nevertheless, the court
in Yeomans said that “an affidavit omitting potentially exculpatory information is less likely
to present a question of impermissible official conduct than one which affirmatively includes
false information.” Id. at 297.
The evidence presented at the suppression hearing and the trial reflects that a series
of crimes including rape, attempted rape or assault, and homicide occurred in a particular
geographic area of Nashville in 1975. In 1976, the Defendant was convicted of one of the
crimes, the rape of A.P. He was charged with two other crimes that occurred in the area
involving a second rape and an attempted rape of two other victims, but those charges were
retired. In 2007, Detective Bill Pridemore of the Metro Police Department’s Cold Case Unit
was investigating an uncharged crime, the 1975 homicide of S.D., in which the Defendant
was a suspect. Detective Pridemore reviewed the transcript of the A.P. rape trial and the
investigative records for other crimes in the area that occurred around the same time. As a
result of his review, he prepared an affidavit seeking a search warrant for the Defendant’s
DNA. The affidavit stated:
On February 2nd, 1975, [S.D.] was found murdered by
Asphyxia in her apartment located at 911 20th Ave. South
Nashville, Tn. During the investigation it was determined that
the victim was sexually assaulted in the early morning hours.
Evidence from the sexual assault including but not limited to
negroid pubic hairs and semen was collected and examined.
Investigators interviewed the last person known to be with
[S.D.] who states during the early morning hours of February
2nd 1975 he dropped [S.D.] off in front of her apartment
building located at 911 20th Ave. South Nashville, Tn. and
drove away. During the time frame of her death there was a rash
of rapes and sexual assaults occurring in the same general area
where the victims [sic] body was located. The pattern of the
-33-
assaults consisted of female white’s [sic] being assaulted in their
dorm rooms or apartments. The suspect would enter through an
unlocked door and would forcibly rape the victim. March of
1975, one month after the death of [S.D.], [the Defendant] was
arrested and charged with committing at least two of the rapes
and one attempted rape in the vicinity of [S.D.’s] residence. He
was later tried and convicted in Davidson County Criminal
Court Nashville, Tn. for rape. During the investigation [the
Defendant] made a statement implicating himself. In this
statement Mr. Barrett stated in the early morning hours he would
enter the buildings attempting to find unlocked apartment doors.
Once entering the apartment he would forcibly rape the victims.
All of the victims were young female whites who appeared to be
alone.
At the suppression hearing, Detective Pridemore acknowledged in his testimony that
he was aware that the Defendant confessed to the rape of A.P. but that the Defendant had not
confessed to another rape and attempted rape. The detective claimed he summarized his
investigation by stating in the affidavit, “In this statement Mr. Barrett stated in the early
morning hours he would enter the buildings attempting to find unlocked apartment doors.”
He said this summary was a compilation of the Defendant’s statement, a detective’s reports
and the trial transcripts from the A.D. case, a statement from a victim that “he attempted to
get in her door, and also another door, neighbor’s door and . . . was the one arrested trying
to get into the maintenance area.” Detective Pridemore later explained that the sentence in
the affidavit referred to “[t]he college campus of Belmont and also the different levels that
he – he entered through the basement door and he went through several levels of the building
before he found an unlocked door where [A.P.] was sleeping.” He denied that he used the
word “buildings” to refer only to floors of a single building and said, “That could be a
combination of – of [A.P.], entering into her dormitory, going through the floors and a
combination of the – of the crime scenes of other crimes that were committed and also from
[another victim’s] statement.”
Detective Pridemore testified that the sentence in the affidavit, “Once entering the
apartment he would forcibly rape the victims,” was based upon “the one statement that he
made that he had committed the rape and also in [another victim’s statement] that she was
forced into her house or her apartment and then forced to have sexual intercourse.” The
detective denied that he intended to imply that the Defendant made all of the statements and
reiterated that the affidavit was a summary of all of the investigative files.
In denying the Defendant’s motion to suppress, the trial court stated:
-34-
The “statement” or more specifically “word” at issue
here is “buildings.” The search warrant affidavit contained the
following language “ . . . [the Defendant] would enter buildings
attempt to find unlocked apartment doors.” The defendant
maintains that the statement attributed to the defendant as
contained in the investigative files (including evidence gathered
by Ralph Langston), did not use the plural of the word. He adds
that Detective Pridemore’s use of the term was in error and
constituted a false statement. The defendant suggests that the
false statement was intentionally or at least recklessly made by
Detective Pridemore. He added that at a minimum Pridemore
was negligent in including the term “buildings.” As a result, he
maintains, the judge reviewing the search warrant and affidavit
was necessarily [misled] as to the existence of probable cause.
...
[T]he Court heard the testimony of Detective Bill Pridemore and
was in a position to assess his credibility. Detective Pridemore
conceded that the statement attributable to the defendant did not
indicate an admission to going into “buildings” to search for
females. However, he testified that he went through the
voluminous files and attempted to summarize what he had
learned from his review. Detective Pridemore indicated that he
did not intentionally include erroneous information in his
affidavit.
Having heard from Pridemore and Langston, the Court is
unconvinced that Detective Pridemore intentionally included a
technically false statement in his affidavit. Further, relying on
the appellate court’s definition of reckless (in this context), this
Court similarly cannot find that defendant has shown (or the
evidence support[s]) that the term was false when made and that
affiant (Detective Pridemore) did not have reasonable grounds
for believing it at that time. Finally, . . . negligence or innocent
mistake do not support exclusion.
On appeal, the Defendant complains that Detective Pridemore’s assertion that the
Defendant admitted entering buildings, attempting to find unlocked doors, and raping the
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victims was false. He also complains that Detective Pridemore failed to divulge that some
of the charges against him were retired.
The trial court accredited Detective Pridemore’s testimony that he did not intend to
make false statements. Because the trial court relied entirely on its credibility determination
and in the absence of proof to the contrary of Detective Pridemore’s testimony about his lack
of 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 statements were recklessly made, and if so,
whether they were essential to establishing probable cause. See Little, 560 S.W.2d at 407.
The record reflects that Detective Pridemore reviewed the cold case file and compiled his
information from it. We note first that his affidavit states, “In [the Defendant’s] statement,
he stated in the early morning hours he would enter the buildings attempting to find unlocked
apartment doors. Once entering the apartment he would forcibly rape the victims.” A police
report summarizing the Defendant’s statement reflects that the Defendant admitted raping
one victim but denied multiple attacks, although police reports in the record also contain
information that the Defendant was arrested “attempting to break into a female whites [sic]
apartment” and that the victim of another rape and the victim’s husband identified articles
of clothing and a gun that had been collected from the Defendant or his home. We conclude
that the evidence preponderates against the trial court’s finding that the statement was not
recklessly made. Given the evidence of record, we also conclude that Detective Pridemore
did not have reasonable grounds for believing the facts as represented in the affidavit.
Regarding the Defendant’s argument that the affidavit did not reveal that some of the
charges were retired, we note that the omission of potentially exculpatory information from
an affidavit is less likely to support a finding of official misconduct than the inclusion of
false information. Yeomans, 10 S.W.3d at 297 (citing United States v. Atkin, 107 S.W.3d
1213, 1217 (6th Cir. 1997)). In any event, we do not view it as significant that the affidavit
did not state that the charges were retired given that it accurately stated that the Defendant
was charged with “at least two . . . rapes and one attempted rape in the vicinity of [the
victim’s] apartment” and that he was later convicted of rape. The affidavit did not falsely
state that the Defendant was convicted of all of the charges. Any favorable inference that
could be drawn from some of the charges being retired could likewise be drawn from the
Defendant’s conviction of a single rape from the multiple charges. We conclude that
Detective Pridemore was not reckless in not disclosing that two of the charges were retired.
The question of the proper remedy remains. In Franks v. Delaware, the Supreme
Court said:
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In the event that at that hearing the allegation of perjury or
reckless disregard is established by the defendant by a
preponderance of the evidence, and, with the affidavit’s false
material set to one side, the affidavit’s remaining content is
insufficient to establish probable cause, the search warrant must
be voided and the fruits of the search excluded to the same
extent as if probable cause was lacking on the face of the
affidavit.
Franks, 438 U.S. at 156. We consider, then, whether the affidavit establishes probable cause
absent the portion that states: “In [the Defendant’s] statement, he stated in the early morning
hours he would enter the buildings attempting to find unlocked apartment doors. Once
entering the apartment he would forcibly rape the victims.” Absent this portion, the affidavit
still recites that there were multiple rapes in the area around the time of S.D.’s homicide, that
S.D. was sexually assaulted, and that the pattern of the rapes was similar in that they involved
a rapist entering a dormitory room or apartment and assaulting a white female who appeared
to be alone, that the Defendant was arrested and charged with at least two rapes and one
attempted rape, and that the Defendant was convicted of one of the rapes. We conclude that
even without the erroneous statement, the affidavit contained sufficient information to
establish probable cause. Despite the trial court’s erroneous finding that the affidavit did not
contain recklessly made false statements, the court did not err in denying the motion to
suppress. The Defendant is not entitled to relief.
III
The Defendant contends that the trial court erred in denying his motion to dismiss the
indictment on the basis that the delay between the offense and the return of the indictment
violated due process. The State counters that the trial court correctly denied the motion. We
agree with the State.
A criminal defendant has the right to due process under the Fifth and Fourteenth
Amendments to the United States Constitution and article I, section 8 of the Tennessee
Constitution. The delay between the commission of an offense and the initiation of formal
proceedings may violate this right to due process. State v. Gray, 917 S.W.2d 668, 671 (Tenn.
1996).
In State v. Dykes, 803 S.W.2d 250, 256 (Tenn. Crim. App. 1990), relying upon United
States v. Marion, 404 U.S. 307 (1971), this court stated that “[b]efore an accused is entitled
to relief based upon the delay between the offense and the initiation of adversarial
proceedings, the accused must prove that (a) there was a delay, (b) the accused sustained
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actual prejudice as a direct and proximate result of the delay, and (c) the State caused the
delay in order to gain tactical advantage over or to harass the accused.” In State v. Utley, 956
S.W.2d 489, 495 (Tenn. 1997), the supreme court acknowledged the “Marion-Dykes”
analysis for cases of delay in charging a defendant.
The offense was committed in February 1975, and the victim’s body was discovered
in March 1975. It is undisputed that DNA technology was not available to the State in 1975.
The DNA testing that identified the Defendant took place in 2007. The indictment was
returned in June 2008.
We agree with the Defendant that sufficient delay occurred in this case to trigger a due
process inquiry. See, e.g., State v. Carico, 968 S.W.2d 280 (Tenn. 1998) (conducting due
process inquiry in case involving seven-year delay between offense and arrest); Utley, 956
S.W.2d 489 (five-year delay). Without question, the thirty-three-year delay was lengthy. We
do not dispute that in some cases, the passage of this many years may be prejudicial to the
defense. The Defendant argues, “[T]he extraordinary delay between the commission of the
crime and the return of the indictment rendered all but impossible the Defendant’s ability to
formulate an alibi defense or produce witnesses or other evidence in his favor.” He argues
generally that the passage of time may impair the quality and quantity of evidence available
and may compromise the reliability of the outcome. We acknowledge that this is a relevant
concern. See, e.g., Carico, 968 S.W.2d at 285 n.5. We note that the Defendant has not
identified any specific unavailable witness or evidence due to the passage of time, nor is any
actual prejudice apparent. We likewise note that the Defendant does not contend that the
State intentionally delayed the prosecution in order to obtain a tactical advantage. In fact,
the record reflects that the police continued to investigate the crime through the cold case
unit and that advances in DNA technology eventually proved fruitful in identifying the
Defendant.
The record supports the trial court’s determination that the Defendant’s due process
rights were not violated by the pre-indictment delay. The trial court did not err in denying
the motion to dismiss the indictment. The Defendant is not entitled to relief.
IV
The Defendant contends that the trial court erred in admitting Sheldon Anter’s
testimony that while the Defendant was in custody, he said that he “had killed before.” The
Defendant advocates the application of Tennessee Rule of Evidence 404(b). The State, on
the other hand, argues that the trial court did not abuse its discretion in admitting the
evidence as an admission of a party opponent pursuant to Rule 803(1.2). We agree with the
State.
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We begin with a review of the relevant evidentiary rules. 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. However, relevant evidence “may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury.” Tenn. R. Evid. 403. Prejudicial evidence is not excluded as a matter
of law. State v. Carruthers, 35 S.W.3d 516, 577 (Tenn. 2000) (citing State v. Gentry, 881
S.W.2d 1, 6 (Tenn. Crim. App. 1993)). The term “undue prejudice” has been defined as
“‘[a]n undue tendency to suggest decision on an improper basis, commonly, though not
necessarily, an emotional one.’” State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978) (quoting
Fed. R. Evid. 403, Advisory Comm’n Notes).
When relevant evidence reflects on the defendant’s character, however, the trial court
must apply the more rigorous standard of Tennessee Rule of Evidence 404(b), rather than
Rule 403. State v. James, 81 S.W.2d 751, 758 (Tenn. 2002); State v. Dubose, 953 S.W.2d
649, 655 (Tenn. 1997). Rule 404(b) prohibits evidence of other crimes, wrongs, or acts
offered to show a character trait in order to prove that a defendant acted in conformity with
that character trait. Tenn. R. Evid. 404(b). However, evidence of other crimes, wrongs, or
acts may be admissible for other purposes, such as establishing identity, motive, common
scheme or plan, intent, or absence of mistake. Id.; State v. McCary, 119 S.W.3d 226, 243
(Tenn. Crim. App. 2003). The rule lists four requirements that must be satisfied before a
court determines admissibility:
(1) The court upon request must hold a hearing outside the
jury’s presence;
(2) The court must determine that a material issue exists other
than conduct conforming with a character trait and must upon
request state on the record the material issues, the ruling, and the
reasons for admitting the evidence;
(3) The court must find proof of the other crime, wrong, or act
to be clear and convincing; and
(4) The court must exclude the evidence if its probative value is
outweighed by the danger of unfair prejudice.
Tenn. R. Evid. 404(b)(1)-(4).
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Hearsay is an out-of-court statement offered in court “to prove the truth of the matter
asserted.” However, Tennessee Rule of Evidence 803(1.2), provides
Hearsay Exceptions.-The following are not excluded by the
hearsay rule:
....
(1.2) Admission by Party-Opponent.-A statement offered against
a party that is (A) the party’s own statement in either an
individual or a representative capacity . . . .
A defendant’s statements, both written and oral, are admissible under this exception, subject
to Tennessee Rules of Evidence 401 and 403. See State v. Binion, 947 S.W.2d 867, 874
(Tenn. Crim. App. 1996); see also Neil P. Cohen et al., Tennessee Law of Evidence, §
8.06[3][a] (6th ed. 2011).
The State filed a pretrial notice that it intended to offer evidence of the Defendant’s
other crimes that included the Defendant’s statements to Sheldon Anter about having killed
other people. The trial court conducted a hearing, at which Mr. Anter testified that while
incarcerated with the Defendant, he witnessed an altercation between the Defendant and
Frank White on August 16, 2008. He said that Mr. White and the Defendant argued about
the television and about another inmate, Andrew Napper. He said that Mr. White had
paperwork containing information about the Defendant’s crimes and taunted the Defendant,
calling him a rapist and a baby killer. Recalling the Defendant’s response, Mr. Anter said,
“[H]e said he don’t have no problem killing here, he had killed four people and had no
problem killing again.” Mr. Anter said the Defendant followed Mr. White into his room and
said, “I will kill you like I killed them blue-eyed b------.” Mr. Anter said Mr. White pushed
the Defendant on top of him. He said the Defendant said that he did not rape the victim, but
that he killed her. He said that the Defendant and Mr. White continued to talk through the
ducts that night after they were “locked down” and that the Defendant again stated he did not
rape anyone but that he killed the victim. Mr. Anter said he did not report the incident to the
police but recounted it when he was questioned ten days later.
Mr. Anter also recalled an occasion when he and the Defendant were on the roof and
the Defendant talked about the charge related to the victim’s death. Mr. Anter could not
recall precisely what the Defendant said, although he recounted,
he was talking about he – that he have a – he haven’t raped – he
hadn’t raped. He killed her but he did not rape her and – . . . He
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also mentioned, he says his DNA wasn’t in her, it was on her.
And he told me if I said anything to anybody he would kill me.
He said the Defendant made these statements on several occasions.
Mr. Anter was cross-examined extensively about his immigration status and his prior
convictions, and his hearing testimony was in accord with his trial testimony on these points.
He acknowledged that he saw television coverage and that he discussed the Defendant’s case
with Mr. White when he and Mr. White were cellmates briefly. He acknowledged that he
told the guards he wanted to report a crime. He denied ever asking Corporal Johnson for
information about the Defendant’s case. He admitted that he did not tell Detective Coleman
in the first interview about the Defendant’s statement that the Defendant had killed “blue-
eyed b-----,” but said he reported it later in a meeting with Detective Postiglione and an
Assistant District Attorney General.
The trial court applied the Rule 404(b) framework in analyzing whether the evidence
was admissible. The court found by clear and convincing evidence that the incidents
described in Mr. Anter’s testimony occurred. See Tenn. R. Evid. 404(b)(3). The court found
that the evidence was admissible because
in some respects it would go to identity, ie., and admission of
guilt and [the Defendant’s] intent. These segments that I am
speaking of are the references to, I’ve killed four other people
and I will kill you, and the statement about, I’ve killed blue-eyed
b------, plural, in the past, and I will kill you. The Court, in the
prior case [against the Defendant for the murder of S.D.], and I
see no reason t[o] change in here, has redacted that statement
about I’ve killed four people to – still reflecting the content of
the statement to a reference of, I’ve killed before and I will kill
you, the Court still is of the opinion that still does not change the
meaning of that statement. And under the case law that can be
done to protect the defendant in terms of the prejudicial effect
that may be present when, or if, the multiple references were
made.
And I do think that that is, obviously, probative as to
intent and the identity of the perpetrator in this particular case.
Could it mean other things? Sure. Maybe he is not speaking of
[the victim], but maybe he is. So that goes more to the weight
and the argument that the parties want to make of it.
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The court found that the prejudicial effect of the statement about the “blue-eyed b-----” was
too great and that it would not be admitted. The court noted the impossibility of redacting
the reference in that statement to the Defendant killing more than one person, finding that
the statement could not effectively be modified to refer to the Defendant killing one blue-
eyed person without changing the meaning. The court noted that the victim had blue eyes.
The court found, however, that evidence of the Defendant’s statements about having killed
before and his threats to kill other inmates was admissible. See Tenn. R. Evid. 404(b)(2), (4).
Thus, at the trial, Mr. Anter was allowed to testify that the Defendant threatened to kill as the
Defendant had killed before.
The question before us, first, is whether Mr. Anter’s testimony that the Defendant had
“killed before” is subject to the general bar of evidence of a defendant’s other crimes,
wrongs, or acts as contemplated by Rule 404(b), or whether the admissibility should be
analyzed under Rule 803(1.2) as an admission of a party-opponent. The evidence was
offered to show that the Defendant admitted killing the victim, the charged crime. The trial
court’s ruling required that the evidence be limited to the Defendant’s admission that he
killed the victim but did not rape her and excluded his admission that he killed four people,
eliminating the evidence of other crimes. In the context in which the Defendant made the
statement, he was referring to homicides he committed before his threat to kill other inmates,
not to homicides he committed before he killed the victim. Once the evidence was limited
to the Defendant’s inculpatory statements about the victim’s homicide, any issue regarding
Rule 404(b) was eliminated.
Turning to Rule 803(1.2), the evidence was an admission of a party opponent and was
admissible subject to the limits of Rules 401 and 403. In that regard, the evidence was
relevant and material because it included the Defendant’s admission that he killed the victim.
See Tenn. R. Evid. 401. We acknowledge that the Defendant’s actual statement that he killed
“them blue-eyed b-----” did not specifically identify the victim, although it might be
interpreted to refer to her. The trial court allowed only the testimony that the Defendant said
he had “killed before.” Standing alone, the evidence as limited by the trial court might be
interpreted to be more inculpatory of the Defendant’s guilt of killing the victim to the extent
that it could be interpreted to refer to a single victim, rather than multiple individuals who
might or might not include the victim. With respect to the victim, however, the Defendant
specifically admitted in other statements that he killed her but did not rape her. The
probative value of the evidence was not substantially outweighed by the danger of unfair
prejudice. See Tenn. R. Evid. 403. The court did not abuse its discretion in admitting the
evidence.
In so holding, we have rejected the Defendant’s argument that the trial court’s
“attempt to ‘sanitize’” the Defendant’s prior record was not permitted by State v. Galmore,
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because it created the risk the jury would speculate about the Defendant’s other crimes. See
994 S.W.2d 120, 122 (Tenn. 1999). We note, first, that the trial court’s ruling eliminated any
evidence of any homicide other than the victim’s that the Defendant claimed to have
committed. We likewise disagree with the Defendant that Galmore has any bearing on his
case. The issue in Galmore was whether the testifying defendant’s credibility could be
impeached with his prior conviction pursuant to Rule 609(a)(3) when the impeaching
conviction was identified only as a prior felony conviction, rather than by identifying the
specific crime of which the defendant had been convicted. See id. The supreme court was
concerned in Galmore that the jury might speculate to the defendant’s detriment about the
nature of the unidentified conviction. Id. In the present case, the Defendant did not testify,
meaning the evidence was not used to impeach his credibility. Perhaps more significantly,
the crime in this case was neither a prior conviction nor was it unidentified. The Defendant
is not entitled to relief.
V
The Defendant contends that the trial court erred in allowing Bobby Downs to be
questioned about the circumstances surrounding his departure from the Metropolitan Police
Department. The Defendant argues that Tennessee Rule of Evidence 608 did not permit the
questioning. The State contends that the trial court did not err. We conclude that the
Defendant is not entitled to relief.
Rule 608 provides that conduct involving dishonesty may be inquired into on
cross-examination of a witness if certain conditions are met. See Tenn. R. Evid. 608. Rule
608(b)(1) provides,
(b) Specific Instances of Conduct.– Specific instances of
conduct of a witness for the purpose of attacking or supporting
the witness’s character for truthfulness, other than convictions
of crime as provided in Rule 609, may not be proved by
extrinsic evidence. They may, however, if probative of
truthfulness or untruthfulness and under the following
conditions, be inquired into on cross-examination of the witness
concerning the witness’s character for truthfulness or
untruthfulness . . . . The conditions which must be satisfied
before allowing inquiry on cross-examination about such
conduct probative solely of truthfulness or untruthfulness are:
(1) The court upon request must hold a hearing outside the
jury’s presence and must determine that the alleged conduct has
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probative value and that a reasonable factual basis exists for the
inquiry;
(2) The conduct must have occurred no more than ten years
before commencement of the action or prosecution, but evidence
of a specific instance of conduct not qualifying under this
paragraph (2) is admissible if the proponent gives the adverse
party sufficient advance notice of intent to use such evidence to
provide the adverse party with a fair opportunity to contest the
use of such evidence and the court determines in the interests of
justice that the probative value of the evidence, supported by
specific facts and circumstances, substantially outweighs its
prejudicial effect[.]
Tenn. R. Evid. 608(b)(1), (2).
As we noted in our recitation of the trial evidence, Mr. Downs testified as a defense
witness about the extensive search of the victim’s neighborhood conducted by police recruits.
He described the systematic approach he and Mr. Felts used to search the Thorpes’ garage.
He said that he was searching for a missing child and a large box of Girl Scout cookies but
that the search was not fruitful. He described the contents of the garage in detail.
Before the State cross-examined Mr. Downs, the prosecutor requested at a bench
conference that he be permitted to ask the witness “if he was suspended from the police
department on August 22nd, ‘78 for lying during a police investigation.” The defense
objected on the basis that the conduct was “way too remote” and noted that Mr. Downs’s
police work on the victim’s homicide was in March 1975. The prosecutor represented to the
court that the witness “resigned under investigation when he was charged with fraudulent
breach of trust. He stole a car (phonetic) basically.” The defense did not challenge the
accuracy of the prosecutor’s statement about the resignation and underlying facts. The only
basis for objecting to the evidence that the defense raised was that “[i]t exceeds the years.”
The trial court ruled that the evidence was admissible. The record does not reflect that the
court elaborated on its rationale for admitting the evidence, although the court said something
that is recorded in the transcript as “(Indiscernible, too low to understand).”
On cross-examination, Mr. Downs said that at a meeting about the case on March 30,
he told his superior officer that he had a strange feeling about the Thorpes’ garage. He
denied knowing at the time that the victim’s body was found in the garage that day. He said
that he was asked to draw a diagram of the garage and that he wrote a detailed three-page
supplemental report about the garage. The report was dated March 31. He denied that he
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knew when he wrote the report that the victim’s body had been found. He denied that he was
taken to the garage before drawing the diagram and writing a report. He claimed he was able
to remember all of the details about the contents of the garage that he recorded in the March
31 report. The State also elicited that as a recruit, Mr. Downs could have “washed out” of
his police training before becoming an officer. The prosecutor asked Mr. Downs if he was
suspended for lying to Internal Affairs, to which Mr. Downs replied that he would have to
see the paperwork. Mr. Downs denied that he resigned from the force under investigation.
He said he would have to see the paperwork to answer whether he was charged with
fraudulent breach of trust at the time he resigned. He said he would “have to see it on paper”
to answer whether he was arrested for fraudulent breach of trust when he was a police
officer.
On appeal, the Defendant argues that the cross-examination about the resignation and
its circumstances involved a matter that was too remote in time from the Defendant’s
indictment and that the State failed to present “specific facts and circumstances” about the
conduct. Alternatively, he argues that the probative value of the cross-examination did not
substantially outweigh its prejudicial effect.
As a preliminary matter, we address the Defendant’s argument that the State failed to
present the specific facts and circumstances of the prior conduct. Our supreme court has
said:
[W]henever possible, extrinsic proof should be offered at the
jury-out hearing to establish the “reasonable factual basis.” If
the realities of trial make it impossible to do so, the attorney
proposing to ask the question should, at a minimum, clearly state
on the record the source and origin of the information
underlying the specific instance of conduct about which inquiry
is proposed.
State v. Nesbit, 978 S.W.2d 872, 882 (Tenn. 1998) (examining requirements for
impeachment of a character witness with evidence of specific instances of conduct under
Rule 405); see State v. Wyrick, 62 S.W.3d 751, 781 (Tenn. 2001) (applying Nesbit guidelines
to analysis of admissibility of specific instances of conduct for witness impeachment
pursuant to Rule 608(b)(1)). Although the State did not provide extrinsic proof of the matters
about which it sought to cross-examine Mr. Downs, the prosecutor stated specific factual
information about the identity and nature of the prior conduct about which it sought to cross-
examine the witness. The defense did not question the accuracy of the prosecutor’s statement
to the court. Given that no challenge was raised in this respect, the record supports that a
reasonable factual basis existed for the inquiry. See Tenn. R. Evid. 608(b)(1).
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The question that arises next is whether the alleged 1978 misconduct was too remote
under Rule 608(b)(2), which generally prohibits evidence of conduct that occurred more than
ten years before the prosecution began. Rule 608(b)(2) places limits on impeachment with
specific instances of conduct that occurred more than ten years before the prosecution
commenced and requires that the proponent give the adverse party advance notice and an
opportunity to contest the use of the evidence. The general rule is one of exclusion, the
theory being that conduct that occurred more than ten years ago has little bearing on the
witness’s credibility. Neil P. Cohen et al., Tenneseee Law of Evidence, § 6.08[8][a], [c] (6th
ed. 2011). Evidence of the conduct is considered to be “too stale to be probative.” Id. at [b].
Considering the facts of the present case, the record reflects that Mr. Downs left the
police department in 1978, and the Defendant was indicted thirty years later. Mr. Downs’s
testimony on direct examination was significant to the defense theories that the victim was
not killed in the garage and that her body was not in the garage during the neighborhood
search. Mr. Downs insisted that he remembered the search of the garage and recalled
detailed information about the garage’s contents, even though he did not see the victim or the
Girl Scout cookies that the State’s proof suggested had been in the garage since the victim’s
death around the time of her disappearance. The State also elicited evidence from Mr.
Downs that he was able to draw a diagram and write a three-page report weeks after the
victim’s disappearance. Mr. Downs denied that he knew the victim’s body had been found
in the garage on the day he drew the diagram and wrote the report. He admitted he was a
police recruit at the time and could have “washed out” of the police academy.
As with any untruthful conduct, the evidence of the alleged misconduct was probative
of Mr. Downs’s character for truthfulness. Given the passage of decades between the
witness’s alleged misconduct and the commencement of the prosecution, however, we cannot
conclude that the probative value substantially outweighed its prejudicial effect. We
conclude that the trial court erred in allowing the State to cross-examine Mr. Downs about
the circumstances of his departure from the police force.
The Defendant is not entitled to relief unless he can demonstrate that the error more
probably than not affected the judgment. T.R.A.P. 36(b). We hold that he has not. Mr.
Downs denied that he was fired and professed not to remember other details of his departure
from the police force and an alleged criminal charge. In any event, the State cross-examined
Mr. Downs thoroughly about his claims that he thoroughly searched the garage, that he
recalled in detail the items in the garage, and that he was able to draw a diagram and write
a report weeks after the search, his failure to find the victim or the cookie box
notwithstanding. The Defendant is not entitled to relief on this basis.
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VI
The Defendant contends that the trial court erred in allowing Larry Felts to be
questioned about the circumstances of his departure from the police department and his
conviction for attempted misuse of information. The State contends that the trial court did
not abuse its discretion. We conclude that the trial court did not err in allowing cross-
examination about the conviction and the employment termination.
Before Mr. Felts was called as a witness, the State requested a ruling on whether it
would be permitted to cross-examine him about the circumstances under which he left the
police department. The prosecutor told the court,
[Mr. Felts] was fired in 1991 for leaking information of a known
target for a State and Federal investigation. He was also
discharged for lying to superior officers about where he got the
information orally. And . . . in writing . . . he later was charged
with a felony and pled guilty to a misdemeanor misuse . . . of
information.
Defense counsel objected on the basis that the conviction was more than ten years old and
noted that the correct conviction offense was attempted misuse of information. The trial
court noted that the conviction was “related to his police work” and inquired whether the
evidence was probative of bias2 against the police department.
Like Mr. Downs, Mr. Felts was a police recruit at the time he helped search for the
victim, and he later became an officer. Mr. Felts testified on direct examination that he pled
guilty to attempted misuse of information and that as a result, his employment was terminated
in 1992. He testified about his search of the Thorpes’ garage and said he specifically recalled
it because there was a commode inside. On cross-examination, Mr. Felts explained that he
leaked information to a suspect and lied to his superior officers about the matter. He claimed
to have specific recall of the garage because it was not as well-maintained as others in the
neighborhood.
The Defendant argues that the evidence of the conviction and conduct should have
been excluded because it did not qualify for admission under Tennessee Rules of Evidence
608, 609, or 616 and that it was barred by Rule 403. As in the situation involving Mr.
Downs, the evidence regarding Mr. Felts involved misconduct related to official duties as a
2
The trial court meant prejudiced against the police. Under the rule, bias indicates favoring the
police. See Tenn. R. Evid. 616.
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police officer. Although there was no offer of proof, the defense did not object to the facts
recited at the bench conference by the prosecutor except to note that the conviction offense
was attempted misuse of information, rather than misuse of information. As noted by the
defense, the events and conviction were outside the ten-year period.
As we have noted, specific instances of conduct of a witness for the purpose of
attacking a witness’s character for truthfulness or untruthfulness may, in certain
circumstances, be the subject of cross-examination of the witness. Tenn. R. Evid. 608(b).
When the conduct was prosecuted and formed the basis for a criminal conviction, however,
Tennessee Rule of Evidence 609 is the operative rule. See Tenn. R. Evid. 608, 609; Neil P.
Cohen et al., Tennessee Rules of Evidence, § 6.08[4] (6th ed. 2011) (stating that acts
resulting in a criminal conviction must be introduced via Rule 609, not Rule 608).
The State asserted that Mr. Felts was involved in a specific instance of conduct in
which he leaked information to a suspect and lied to his superior officers. The conduct
formed the basis for his attempt conviction, and Rule 609 provides the relevant framework.
The rule permits impeachment of a witness with his or her prior convictions if certain
conditions are met: The prior conviction must be for a misdemeanor involving “dishonesty
or false statement” or for a felony. Tenn. R. Evid. 609(a)(2); State v. Mixon, 983 S.W.2d
661, 674 (Tenn. 1999). Less than ten years must have elapsed between the witness’s release
from confinement for the prior conviction and the commencing of the present prosecution,
or if there was no confinement, from the date of conviction, although older convictions may
be admissible if the adverse party has sufficient advance notice and a fair opportunity to
challenge the evidence. Tenn. R. Evid. 609(b). If the conviction is more than ten years old,
the trial court must find that in the interests of justice, “the probative value of the conviction,
supported by specific facts and circumstances, substantially outweighs its prejudicial effect.”
Id. Finally, the trial court must find that the impeaching conviction’s probative value on
credibility outweighs its unfair prejudicial effect on the substantive issues. Id.
The conviction offense was attempted misuse of official information. The substantive
offense, misuse of official information, is a Class B misdemeanor. T.C.A. § 39-16-404(b)
(2010). Attempted misuse of official information is a Class C misdemeanor. See id., § 39-
12-17(a) (2010). Although a question of first impression, we conclude that attempted misuse
of official information is a crime involving dishonesty or false statement as contemplated by
our supreme court. See generally T.C.A. § 39-16-404(a) (defining misuse of official
information: “A public servant commits an offense who, by reason of information to which
the public servant has access in the public servant’s official capacity and that has not been
made public, attains or aids another to attain a benefit.”). The offense involves dishonesty
because a person entrusted with official information misuses it to his or her own advantage
or to the advantage of a third party.
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We note that the trial court did not make the required findings pursuant to Rule 609.
The record reflects that the conviction was more than ten years old. Despite the age of the
conviction, the misconduct was related to Mr. Felts’ police duties, although there is no
indication the misconduct was related to the Defendant or the investigation of the victim’s
disappearance and death. The Defendant notes that Mr. Felts has since demonstrated his
honesty and good moral character because he was licensed as an attorney after his law
enforcement career ended. We are persuaded, though, that the State was properly allowed
to cross-examine Mr. Felts about the conviction because it was a crime involving dishonesty
that occurred in his capacity as a police officer. The integrity of the investigation was called
into question by the failure of the police to locate the victim’s body in the Thorpes’ garage,
even though the forensic evidence suggested that it had been there all along. Whether Mr.
Felts testified truthfully was a significant point. We conclude that the probative value of the
evidence on Mr. Felts’s credibility substantially outweighed the prejudicial effect of the
evidence. The trial court did not err in allowing the State to cross-examine Mr. Felts about
the conviction.
We consider next the admissibility of the evidence under Rule 616, which provides
for cross-examination, extrinsic evidence, or both, of a witness’s bias or prejudice toward a
party or another witness. See Tenn. R. Evid. 616. The Defendant contends that the trial
court erred in allowing the State to cross-examine Mr. Felts about the circumstances
surrounding the conviction in order to demonstrate that he was prejudiced against the police
department. The State concedes that Rule 616 does not apply because the police department
was not a party or other witness. While we view the adverse party as the State, we view the
police department as the functional equivalent of the State, which prosecuted the crime.
Mr. Felts testified about a thorough search of the garage and said, “Her body was not
there.” His testimony called into question the State’s theory that the victim was in the garage
from the time of her disappearance and death until being found. The defense offered his
testimony to attempt to show otherwise. The facts of Mr. Felts’s dismissal from the police
department were relevant to possible prejudice against the State. We acknowledge the
passage of many years between the employment termination and the Defendant’s trial, but
the facts of the dismissal included Mr. Felts’s admission that he lied to his superior officers.
We conclude that the evidence was probative of prejudice and that the trial court’s admission
of it was consistent with Rule 616.
We have also considered the Defendant’s argument that even if the evidence was
otherwise admissible, Rule 403 barred its admission because “its probative value [was]
substantially outweighed by the danger of unfair prejudice.” See Tenn. R. Evid. 403. As we
have noted regarding admissibility under Rule 609, the probative value of the evidence was
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not substantially outweighed by the danger of unfair prejudice. Rule 403 did not defeat its
admissibility.
The trial court did not err in allowing the State to cross-examine Mr. Felts about his
conviction and employment termination. The Defendant is not entitled to relief.
VII
The Defendant contends that the trial court erred in allowing Dr. Jerry Francisco to
testify as an expert in DNA analysis. The State contends that the trial court did not err in
allowing the former state medical examiner to testify in limited fashion about his
observations of the handling of DNA in his laboratory. We conclude that the trial court did
not abuse its discretion.
Tennessee Rules of Evidence 702 and 703 address the admissibility of opinion
testimony of expert witnesses. Questions regarding the admissibility, qualifications,
relevancy, and competency of expert testimony are left to the discretion of the trial court.
McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 263-64 (Tenn. 1997). A trial court’s ruling
on the admissibility of such evidence may be overturned on appeal only for an abuse of
discretion. State v. Stevens, 78 S.W.3d 817, 834 (Tenn. 2002).
The record reflects that Dr. Francisco testified as an expert witness in forensic
pathology. During his direct examination, he was asked about precautions taken in the
laboratory at the time of the victim’s autopsy to avoid the transfer of DNA evidence. The
defense objected to Dr. Francisco’s testifying as an expert in DNA analysis. The State then
questioned Dr. Francisco about his medical training and education specific to DNA. He said
he had DNA-specific training in medical school. He said it was necessary for a physician to
learn about DNA because “[i]t’s pervasive, it’s everywhere.” He said that he had not done
DNA analysis or interpretation but that he had knowledge of the science of DNA. When
cross-examined on voir dire, he said he was in medical school in 1952 through 1955. He said
he had never testified as an expert in DNA testing. He said he attended a DNA seminar at
least ten years earlier, before his retirement, but that he had done additional “work, review,
literature searching, online examinations constantly since that time because . . . it’s a very
fas[c]inating thing.” The trial court ruled, “I’ll allow Dr. Francisco to answer the question
he’s been asked and we’ll deal with any other objections in terms of explaining . . . about the
lab not taking precautions for any DNA issues.”
Dr. Francisco proceeded to testify that because DNA was present in small amounts,
there was a need for a technique to magnify it. He said that in the late 1970s, a magnification
technique called polymerase chain reaction was developed to unwind DNA molecules. He
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explained, “In 1975, we didn’t know it existed and, therefore, you would touch the swab with
your hands. There were all sorts of contamination that would lead to a false positive, if you
will, and we had no knowledge of this in 1975.” He said that at the time, swabbing was done
to collect fluid in order to examine it for the presence of sperm. He explained the process
by which he and Dr. Bell made their own swabs and the procedure for handling the swabs
and transferring the fluid to slides. He also testified that if testing showed that four or five
individuals’ DNA was on the slides, this was probably due to contamination.
When the trial court instructed the jury, it listed Dr. Francisco as an expert witness in
forensic pathology. The court listed William Gavin as an expert in forensic serology. It
listed Janice Williamson, Meghan Clement, Jennifer Luttman, Chad Johnson, Joe Minor, and
Gary Harmor as experts in DNA analysis.
We conclude that contrary to the Defendant’s assertion, Dr. Francisco did not testify
as an expert in DNA analysis. He testified as an expert in forensic pathology, and as part of
his expertise as a physician, he described basic scientific knowledge as it related to his
laboratory’s lack of procedures for preventing contamination of DNA evidence in 1975. His
voir dire testimony established that basic scientific knowledge about DNA was part of his
medical school curriculum and continuing education and that he had additional independent
education due to his particular interest in the field. He did not testify about any DNA
analysis performed on the evidence in this case. The Defendant has not established that the
trial court abused its discretion or arbitrarily allowed Dr. Francisco to testify about basic
scientific facts within his knowledge as a forensic pathologist.
In so holding, we distinguish the case cited by the Defendant, State v. Halake, 102
S.W.3d 661 (Tenn. Crim. App. 2001). In Halake, this court held that the trial court
committed prejudicial error by allowing a police officer to testify as an expert witness that
blood spots on the defendant’s pants were consistent with gunshot blood spatter. The court
noted the complicated nature of blood spatter analysis. The court also noted that although
the officer had some on-the-job experience at crime scenes where blood spatter was present
and had attended general law enforcement seminars where information about blood spatter
was presented, the officer had no specialized training in blood spatter analysis. Id. at 670-72.
In contrast to Halake, Dr. Francisco’s testimony in the present case was appropriate expert
testimony for an expert in forensic pathology. Dr. Francisco’s testimony was limited to the
procedures in his laboratory before the advent of techniques to examine evidence for the
presence and identity of DNA, the means by which samples prepared before that time could
become contaminated, and his opinion that the slides from the victim’s homicide containing
DNA from multiple sources probably were contaminated. As a forensic pathologist who
worked in a laboratory setting for many years and who had specialized training and an
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individual interest in DNA, Dr. Francisco did not exceed the scope of his expertise. The
Defendant is not entitled to relief.
VIII
The Defendant contends that the jury imposed an excessive sentence of forty-four
years. The State counters that the sentence is within the range of ten years to life
imprisonment that was prescribed for second degree murder at the time of the offense. We
conclude that the Defendant has not established error.
As noted by the State, second degree murder at the time of the offense carried a
sentence to prison “for life or for a period of not less than ten (10) years.” T.C.A. § 39-2408
(1975) (renumbered at T.C.A. § 39-2-212) (repealed 1989); see id., § 40-35-117(c) (2010)
(providing that prior law shall apply to sentencing of a defendant for a crime committed
before July 1, 1982). The law also provided, “The jury before whom the offender is tried,
shall ascertain in their verdict whether it is murder in the first or second degree; and if the
accused confess his guilt, the court shall proceed to determine the degree of crime by the
verdict of a jury, upon the examination of testimony, and give sentence accordingly.” See
id., § 39-2404 (1975) (amended 1977, 1988) (repealed 1989); see, e.g., State v. Bryant, 805
S.W.2d 762, 763 (Tenn. 1991). “Until 1982, appellate review of sentencing was limited to
issues of probation, consecutive sentencing, and capital punishment. Where the jury fixed
sentences within the range authorized by the criminal statute, no appeal was available.”
Bryant, 805 S.W.2d at 763 (citing Ryall v. State, 321 S.W.2d 809 ( Tenn. 1959); State v.
Webb, 625 S.W.2d 281 (Tenn. Crim. App. 1980); Johnson v. State, 598 S.W.2d 803 (Tenn.
Crim. App. 1980)).
The Defendant acknowledges that jury-imposed sentences within the range prescribed
by the former sentencing law normally have not been considered to be “excessive or
indicative of passion, prejudice, or caprice on the part of the jury.” See Dukes v. State, 578
S.W.2d 659, 666 (Tenn. Crim. App. 1978). He notes that the Tennessee Supreme Court
modified sentences involving jury-imposed jail confinement in McKnight v. State, 106
S.W.2d 556 (Tenn. 1937) and Bacon v. State, 385 S.W.2d 107 (Tenn. 1964). We note,
however, that both cases cited by the Defendant involved misdemeanors, and distinguish
them on that basis. See Bacon, 385 S.W.2d at 270 (identifying “assault and battery” and
describing a misdemeanor assault); McKnight, 106 S.W.2d at 557 (identifying unlawfully
soliciting insurance as a misdemeanor).
In any event, the Defendant advocates that this court should reduce his sentence to one
commensurate to a Range I sentence for second degree murder under current law. He notes
that his forty-four year sentence is greater than the maximum sentence for both Range I and
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Range II sentences for second degree murder under current law. He argues that pursuant to
current Code section 39-11-112, he should receive the benefit of the lesser sentence provided
for second degree murder by current law. Code section 39-11-112 states:
When a penal statute or penal legislative act of the state is
repealed or amended by a subsequent legislative act, the offense,
as defined by the statute or act being repealed or amended,
committed while the statute or act was in full force and effect
shall be prosecuted under the act or statute in effect at the time
of the commission of the offense. Except as provided under the
provisions of § 40-35-117, in the event the subsequent act
provides for a lesser penalty, any punishment imposed shall be
in accordance with the subsequent act.
T.C.A. § 39-11-112 (2010) (emphasis added). Code section 40-35-117 provides that prior
law shall apply for all defendants who committed crimes before July 1, 1982. Id., § 40-35-
117(c) (2010). This court has said that section 40-35-117 is constitutional. See, e.g., State
v. Turner, 919 S.W.2d 346, 361-62 (Tenn. Crim. App. 1995); State v. Melvin, 913 S.W.2d
195, 201-02 (Tenn. 1995).
We conclude that the jury imposed a sentence that was within the applicable range and
that the Defendant is not afforded further review by this court. The Defendant is not entitled
to relief.
IX
The Defendant’s final contention is that the trial court erred in imposing his sentence
consecutively to a life sentence for a previous conviction. The State counters that the trial
court did not err. We agree with the State.
Before considering the issue raised, we note that at the Defendant’s request, the trial
court considered consecutive sentencing of the Defendant under current Code section 40-35-
115. That statute was not in effect at the time of the Defendant’s crime. At that time, the
Code provided:
When any person has been convicted of two (2) or more
offenses, judgment shall be rendered on each conviction after
the first, providing that the terms of imprisonment to which such
person is sentenced shall run concurrently or cumulatively in the
discretion of the trial judge; provided, that the exercise of the
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discretion of the trial judge shall be reviewable by the Supreme
Court on appeal.
T.C.A. § 40-2711 (1975) (amended 1979) (repealed 1982). As we noted in Section VIII, the
current Criminal Code provides that prior law shall apply for all defendants who committed
crimes before July 1, 1982. See id., § 40-35-117(c). The proper law for determining whether
the Defendant should receive a consecutive sentence was the law as it existed in 1975.
In that regard, the Defendant’s crime was committed before our supreme court’s
decisions in Gray v. State, 538 S.W.2d 391 (Tenn. 1976) and State v. Taylor, 739 S.W.2d 227(Tenn. 1987). Those cases established the framework that was adopted by our legislature in
defining the current consecutive sentencing scheme. See generally T.C.A. § 40-25-115,
Sent’g Comm. Cmts. Collectively, Gray and Taylor defined five categories of offenders for
whom consecutive sentencing was appropriate. See id. The legislature added two additional
categories in 1990. Id. Before the Gray and Taylor decisions, there was no guidance for a
trial court in imposing consecutive sentencing. See Gray, 538 S.W.2d at 392-93 (noting the
absence of guidelines for determining when consecutive sentencing was appropriate and
defining guidelines to be followed in the future); see also Bundy v. State, 140 S.W.2d 154(Tenn. 1940) (stating that consecutive sentencing was in the discretion of the trial court);
Wooten v. State, 477 S.W.2d 767, 768 (Tenn. Crim. App. 1971).
All of that said, the development of the law is of little consequence to the outcome of
this case. Use of the subsequently developed guidelines only reinforces that the trial court
did not abuse its discretion. In the present case, the trial court found two bases for imposing
consecutive sentencing. First, the court found that the Defendant’s history of criminal
activity was extensive. See Gray, 538 S.W.2d at 393. The record reflects that the Defendant
had prior convictions for first degree murder, rape, unlawful carnal knowledge of a minor,
and assault with intent to rape. This was an appropriate consideration that was within the
discretion of the trial court, without regard to the timing of the Gray decision. The trial court
did not abuse its discretion in imposing consecutive sentencing on this basis.
Second, the trial court found that the Defendant was a dangerous offender with little
or no regard for human life and who had no hesitation about committing a crime involving
a high risk to human life. See id. With regard to this finding, the court noted that the
sentence “need[ed] to be long enough to keep [the Defendant] permanently incarcerated” and
that an extended sentence would minimize the deaths of the victim and the murder victim
from the previous case. See id.; see also State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995).
Again, this was an appropriate consideration for the trial court to have considered. The trial
court did not abuse its discretion in relying on this basis to impose consecutive sentences.
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In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.
____________________________________
JOSEPH M. TIPTON, PRESIDING JUDGE
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