State v. John Allen Chapman ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
FEBRUARY SESSION, 1997 FILED
September 30, 1997
Cecil W. Crowson
STATE OF TENNESSEE, )
Appellate Court Clerk
) No. 01C01-9604-CC-00137
Appellee )
) GRUNDY COUNTY
vs. )
) Hon. THOMAS W. GRAHAM, Judge
JOHN ALLEN CHAPMAN, )
) (First Degree Murder; Aggravated
Appellant ) Kidnapping; Aggravated Sexual
) Battery)
For the Appellant: For the Appellee:
PHILLIP A. CONDRA CHARLES W. BURSON
District Public Defender Attorney General and Reporter
P. O. Box 220
204 Betsy Pack Drive MICHAEL J. FAHEY, II
Jasper, TN 37347 Assistant Attorney General
Criminal Justice Division
(AT TRIAL AND ON APPEAL) 450 James Robertson Parkway
Nashville, TN 37243-0493
ROBERT S. PETERS
Attorney at Law J. MICHAEL TAYLOR
3rd National Bank Building District Attorney General
100 1st. Avenue, S.W. 1st American National Bank Building
Winchester, TN 37398 Dayton, TN 37321
(AT TRIAL ONLY) THOMAS D. HEMBREE
Asst. District Attorney General
Lawyer's Building
Jasper, TN 37347
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, John Allen Chapman, appeals from the April 2, 1994,
Grundy County jury verdict finding him guilty of first degree murder, aggravated
kidnapping, and aggravated sexual battery. The jury fixed the appellant’s
sentence at life imprisonment for first degree murder and the trial court imposed
maximum sentences of twelve years each for the remaining offenses and
ordered all sentences to be served consecutively. On appeal, the appellant
challenges:
I. The sufficiency of the indictment charging aggravated
kidnapping;
II. The sufficiency of the evidence for all three convictions;
III. The admission of DNA evidence;
IV. Denial of the appellant's motion to suppress blood samples
obtained during the investigation;
V. Failure of the trial court to properly instruct the jury regarding
identity;
VI. The scope of cross-examination of State’s witnesses; and
VII. Sentencing: length of sentences and imposition of consecutive
sentences.
After review, the judgment of the trial court is affirmed.
BACKGROUND
Guilt Phase
On April 19, 1990, Michelle Blake, the victim in this case, was employed
as a clerk at the Pit Stop South, a gas and convenience store in McMinnville.
Mrs. Blake was twenty-six years old, married and the mother of a four-year-old
daughter. On this date, she was scheduled to work the 3:00 p.m. to 11:00 p.m.
2
shift. At 5:15 p.m., Mrs. Blake's husband, William Blake, arrived at the Pit Stop
South to pick up the couple's vehicle, a Ford Bobcat. He left the business,
traveled to a video store, and then went home. As was customary, Blake was to
return to the Pit Stop later that evening with his wife’s dinner.
Around 8:30 p.m., Ed Martin stopped at the store to purchase gasoline.
Martin pumped three dollars worth of gasoline and went inside the store to pay.
As Martin was leaving the store, Mrs. Blake remarked, "I wish he'd go ahead and
leave. I've already pumped his gas," referring to a man sitting outside the front
of the store in an older model gray Chevrolet pick up truck which displayed
Grundy County license plates.
Fifteen minutes later, around 8:45 p.m., Sylvia Fults and her husband
pulled into the drive-through window of the Pit Stop South to purchase cigarettes.
Although she depressed the customer assistance button, no clerk appeared.
She then noticed Mrs. Blake at the full service pump with a jug in her hand.
Mrs. Blake re-entered the store to wait on Fults. While waiting on Fults, Mrs.
Blake
talked about this guy being there before getting gas and talking
about him being so weird. She said he had been there earlier and
got gas in his truck and he had left or started to leave, and came
back and had her put gas in a can, and she said, 'Now he's back
wanting it in a jug.'
Mrs. Blake also told Fults that this man had asked her if she had wanted any
help since she was at the store by herself. During this conversation, Fults
noticed a man in the store who looked like he was trying to scare Mrs. Blake.
When she was leaving the parking lot, she observed a "gray primer color" pick
up truck with chrome parked in front of the store.
Mary Jones lives across the street from the Pit Stop South. Around 8:55
3
p.m. on April 19, 1990, she heard what she thought to be a scream coming from
the front of her house. After hearing an apparent second scream, she went to
her front porch where she observed a truck on the Pit Stop’s parking lot. She
stated that the truck was a "gray primer color" and had a Chevrolet logo across
the back of the tailgate. She noticed a man and a woman in the truck. Ms.
Jones related that “at one time it looked like she pulled away from him.” She
assumed that, more than likely, it was simply a “domestic problem." The truck
then pulled out of the parking lot and onto Highway 55. She commented that, as
the truck left the parking lot, it was going very fast and that it made loud sounds.
At 9:05 p.m., as planned, William Blake returned to the Pit Stop South
with his wife's, dinner. When he arrived at the Pit Stop, he noticed two vehicles
in the parking lot. Two customers approached him and inquired as to "what was
going on" as there was no attendant on duty. Immediately, Blake began to
search the premises for his wife. During this search, one of the customers
discovered Mrs. Blake's eyeglasses in the parking lot. At this point, the police
were called and the owner of the station, Mr. Stanton, arrived. After inspecting
the premises, Mr. Stanton stated that no money had been taken from the cash
register, although the key that functioned as the "on-off" switch was missing. A
search then began in Warren County for Michelle Blake.
Joe Roper informed law enforcement officials that, while traveling home
on the evening of April 19, 1990, on route 108, a vehicle came up behind him at
an excessive rate of speed and passed him on a double yellow line. He
described the vehicle as being a gray Chevrolet pick up truck with large tires and
Grundy County license plates. Roper also stated that there were two people in
the truck. Dale Winton reported that, at 9:05 p.m., he was traveling on highway
127 when a vehicle came up behind him "real fast" and swerved around him,
4
almost running him off the road.1 He described the vehicle as being a dark
colored 1979 or 1980 Chevrolet pick up truck with "cherry bomb mufflers" and
chrome on the side of the truck.
Danny Wannamaker, whose residence is directly adjacent to the
Philadelphia Cemetery in Grundy County, testified that, at around 9:20 p.m. on
April 19, 1990, he took a shower and prepared for bed. Around 9:50 p.m., he
heard a vehicle that sounded like it did not have a muffler. He looked out the
window, but did not see anything. Again, he heard the vehicle stop for a few
minutes, then "the motor was turned off, cranked back up and took off, again
approaching the house." Herbert Lewis, who also lives behind the Philadelphia
Cemetery, was at home alone on the evening of April 19, 1990. Shortly after
9:30 p.m., he heard what appeared to be a female screaming for help, followed
shortly thereafter, by a loud vehicle coming around the bend from behind the
graveyard. He explained that he was not alarmed by the screams because he
was “use (sic) to hearing people screaming, raising cane (sic) at the volleyball
court."
The next morning between 7:00 and 7:30 a.m., Sharon Shannon, the
daughter of Herbert and Melba Lewis, dropped her six-month-old son off at her
parents' home. As she was leaving, she spotted what at first appeared to her to
be shoes, however, she soon realized it was a body. Because her eleven year
old daughter was in the vehicle with her, she did not stop, but returned to her
parents' home instead. After leaving her daughter with her parents, Shannon
returned to the cemetery to verify the presence of the body and then contacted
the authorities. The body was identified as that of Michelle Blake.
1
The proof at trial revealed that a motorist traveling between the Pit Stop South and the
Philadelphia Cem etery would take Highway 55 to 108, 108 to 127, 127 to 56, 56 to the Grundy
County line, then to the cemetery. The total distance of this trip is approximately 16.2 miles. At
the poste d speed rate, th is dista nce take s an average of twe nty m inutes to travel.
5
An investigative team with the Tennessee Bureau of Investigation arrived
at the scene. The victim was found fully clothed with her blouse partially
unbuttoned. Her brassiere was missing. The victim's body was examined for the
presence of hair, fibers, and fingerprints. Joe Minor, a member of the
investigative team, testified that a whitish stain which appeared to be semen was
discovered on the left breast of the victim’s body. The whitish stain extended
from the victim’s breast to her stomach. Examination of the stain revealed that
the substance did contain spermatozoa, and further testing indicated that the
source of the semen was a Type B secretor.
Dr. Charles Harlan, the chief medical examiner for the State of
Tennessee, performed an autopsy upon the body of Michelle Blake on April 21,
1990. His report identified a total of seven stab wounds, one to the left side of
the neck, four to the left breast, and two to the mid-line of the back. He indicated
that the wounds were caused by a single sided instrument, three to three and
one-half inches in length. Three of the wounds caused damage to main organs
which resulted in the victim's death, i.e., damage to the carotid artery, damage to
the heart, and damage to the right lung. He opined that death occurred within
three to ten minutes of the injuries. The medical examiner further explained that
a sharp line of demarcation existed on the victim's neck, indicative of ligature
strangulation. He noted there were no defensive wounds and no evidence of
forcible vaginal intercourse. He also determined that the victim's blood was
type O.
Despite descriptions of the perpetrator, his truck, and available scientific
evidence, the case remained unsolved for over two years. In July, 1992, Special
Agent Larry Davis with the Tennessee Bureau of Investigation, was called to
6
assist Grundy County officials in the investigation of the June 7 murder of Vicky
Sue Metzger, whose body was discovered at the I-24 Eastbound Rest Area near
Monteagle. On July 13, Davis interviewed the appellant who was the attendant
on duty at the rest area on the date of the murder. The attendant at the
westbound rest area was also interviewed. Neither man was placed under
arrest, although both men were asked to submit blood samples for DNA
comparison analysis on semen found on the victim. On November 5, 1992,
Davis was requested to assist in the investigation of an assault on another victim
at the I-24 Eastbound Rest Area. On this occasion, the appellant was identified
as the assailant and was in custody at the Monteagle police station when
interviewed by Agent Davis. The appellant "stated that he had assaulted the
victim because he had been drinking and smoking marijuana." Again, the
appellant submitted to blood testing. 2
From these tests, it was determined that the appellant has Type B blood.
Review of the case file at this point led authorities to the belief that the appellant
may have been involved in the 1990 death of Michelle Blake. DNA comparison
analysis was then requested on the appellant's blood sample and the semen
sample recovered from Mrs. Blake's body. The results from the tests revealed
that the DNA binding pattern on each sample matched. Additional forensic tests
established that fibers found on the victim's clothing were consistent with the
fibers found in the carpet of the appellant’s Chevrolet pick up truck. The proof at
trial established that, in April, 1990, the appellant lived in Grundy County and
was employed by a nursery in Warren County. On occasion, after regular
working hours at the nursery, he would work for his supervisor, Floyd Hardcastle,
who lived in Warren County. When working for Mr. Hardcastle, his commute to
and from home would take him by the Pit Stop South. The appellant admitted
2
Evidence of the crim es against V ick y Metzger an d Pam ela Sue Back, the second victim
at the I-24 eastbound Rest Area, was developed during pre-trial suppression hearings.
7
that he had, on occasion, purchased gas at the Pit Stop South. However, when
showed the photograph of Michelle Blake at trial, he stated that he did not
recognize her. On cross-examination, the State introduced a payroll check from
Hardcastle to the appellant, dated March 3, 1990, which was cashed at the Pit
Stop South, bearing the initials “M.B.” The initials were identified as being those
of Michelle Blake. The appellant also admitted that, in April, 1990, he owned a
1977 gray Chevrolet short-bed pickup truck which displayed Grundy County
license plates. He stated that he sold the truck in the spring of 1991.
Additionally, the proof established that, in April of 1990, the appellant’s truck had
other matching characteristics to that of the truck driven by the abductor of
Michelle Blake.
Based upon the evidence introduced, the jury convicted the appellant of
first degree murder, aggravated kidnapping, and aggravated sexual battery.
Following the testimony of various defense witnesses and the proof
introduced at the guilt phase, the jury fixed the appellant’s sentence for first
degree murder at life imprisonment.
Sentencing Phase: Aggravated Kidnapping and Aggravated Sexual Battery
The hearing to determine the appropriate sentences for the appellant's
remaining convictions was held on May 12, 1994. The presentence report
revealed that, at the time the report was prepared, the appellant was a twenty-six
year old Caucasian male, married, and the father of a three year old son. He
has a tenth grade education. After dropping out of school, he joined the
Tennessee National Guard. He received an honorable discharge in 1992
attaining the rank of E-4. He admits to being an alcoholic and to occasional
marijuana use. Since 1987, the appellant has worked for various employers in
8
the nursery business and, briefly, as a rest area attendant. Regarding the
appellant's prior record, the report indicated that the appellant, on the date of the
sentencing hearing in this case, had one count of first degree murder, one count
of aggravated rape and two counts of aggravated robbery pending in the Grundy
County Circuit Court. Additionally, the appellant has three prior convictions for
driving while intoxicated, one conviction for possession of marijuana, and one
conviction for driving on a revoked license. He was arrested for possession of a
weapon for purposes of going armed, however, this charge was dismissed upon
payment of costs and confiscation of the firearm.
Larry Davis, a special agent with the TBI, testified regarding his
investigation of the murder of Vicky Sue Metzger and the assault of Pamela Sue
Back. He explained that, through his investigation of these two cases, the TBI
was able to target the appellant as a suspect in the present case. He also
recounted the appellant's confession to the assault on Pamela Sue Back.
The trial court found three non-statutory mitigating factors and five
statutory enhancement factors applicable. In doing so, the court imposed the
maximum sentence of twelve years for each conviction within the range.
Moreover, based upon the allegations of the pending indictments, the court
concluded that the appellant was a dangerous offender and ordered that all
sentences be served consecutively.
I. Sufficiency of the Indictment
The appellant first contends that the indictment for aggravated kidnapping
is void because it fails to set forth the essential elements of the offense.
Specifically, he argues that the indictment fails to allege the elements of false
9
imprisonment, which is an essential element of aggravated kidnapping. Count
two of the indictment, which charged the offense of aggravated kidnapping,
alleged in pertinent part as follows:
JOHN ALLEN CHAPMAN . . . did unlawfully, (intentionally), . . .
remove and confine one Michelle Darlene Blake with the intent to
inflict serious bodily injury upon the person of the said Michelle
Darlene Blake, in violation of . . . Tenn. Code Ann. § 39-13-301. . .
.3
(Emphasis added)
The appellant acknowledges that the charging instrument includes the
statutory language “did unlawfully . . . remove and confine” one Michelle Darlene
Blake. He argues, however, that the failure of the indictment to include the
remaining statutory language “so as to interfere substantially with the other’s
liberty” renders the indictment void.
An indictment should state the facts constituting the offense in ordinary
and concise language in such a manner as to enable a person of common
understanding to know what is intended, and with that degree of certainty which
will enable the court, on conviction, to pronounce the proper judgment. Tenn.
Code Ann. § 40-13-202 (1990); State v. Marshall, 870 S.W.2d 532, 537 (Tenn.
Crim. App. 1993). This court recently held that “[i]f an offense is alleged in such
a way that the defendant cannot fail to be apprised of the elements of the
offense, the indictment is sufficient, notwithstanding the fact that an element may
not be specifically alleged.” See State v. John Haws Burrell, No. 03C01-9404-
CR-00157, (Tenn. Crim. App. at Knoxville, Feb. 11, 1997) (Rule 11 application
filed, April 10, 1997).
The indictment in this case alleges that the appellant removed and
3
Tenn. Code Ann. § 39-13-304(a) (1989) defines aggravated kidnapping as "false
imprisonment com mitted . . . (3) with the intent to inflict serious bodily injury. . . ." False
imprisonm ent is the know ing rem oval or confinem ent of ano ther u nlawfully so as to interfe re with
the other's liberty. Ten n. Code A nn. § 39-13-30 2 (1989).
10
confined Michelle Darlene Blake with the intent to inflict serious bodily injury. We
find the language of the indictment provides constitutionally sufficient notice of
the offense charged as well as suitable protection against double jeopardy. This
issue is without merit.
II. Sufficiency of the Evidence
Next, the appellant challenges the sufficiency of the convicting evidence
as to each count of the indictment. Within this challenge, he alleges (1) that the
evidence fails to prove, in regards to the aggravated kidnapping conviction, that
"any removal or confinement substantially interfered with the victim's liberty;" (2)
that, concerning the aggravated sexual battery conviction, there was no proof of
unlawful sexual contact with the victim; and (3) that the State failed to establish,
by either lay or expert testimony, that the appellant was, indeed, the perpetrator
of the offenses committed against Ms. Blake.4
When a challenge is made on appeal to the sufficiency of the convicting
evidence, this court must adhere to certain well-established principles. First, a
jury conviction removes the presumption of innocence with which a defendant is
initially cloaked and replaces it with one of guilt, so that on appeal a convicted
defendant has the burden of demonstrating that the evidence is insufficient.
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Next, the State is entitled to
the strongest legitimate view of the evidence and all reasonable or legitimate
inferences which may be drawn therefrom. State v. Harris, 839 S.W.2d 54, 75
(Tenn. 1992). Moreover, this court may not reweigh or reevaluate the evidence.
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Viewing the evidence
under these criteria, it is this court's responsibility to affirm the conviction if the
4
The appellant does not challenge the sufficiency of the convicting evidence as to the
offense of first d egree m urder other than to th e issue of the perpetrator's identity.
11
proof was sufficient for any rational trier of fact to have found the essential
elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 317, 99 S. Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259
(Tenn. 1994); Tenn. R. App. P. 13(e). This rule is applicable to findings of guilt
predicated upon direct evidence, circumstantial evidence, or a combination of
both direct and circumstantial evidence. State v. Matthews, 805 S.W.2d 776,
779 (Tenn. Crim. App. 1990).
A. Aggravated Kidnapping
The jury found the appellant guilty of aggravated kidnapping pursuant to
Tenn. Code Ann. § 39-13-304(a). In order to obtain a conviction under this
statute, the State must prove that the defendant committed the act of false
imprisonment, as defined in §39-13-302, supra note 5, with the intent to inflict
serious bodily injury. . . ." Tenn. Code Ann. § 39-13-304. The proof establishes
that Mrs. Blake disappeared from the Pit Stop South during her scheduled shift,
leaving behind her eyeglasses, which were later found in the parking lot. Her
disappearance coincided with the appearance of the appellant at the
convenience store. Mrs. Blake did not know the appellant. Various witnesses
thought they heard the victim's screams. The following morning, the victim was
found brutally murdered. We find nothing from these facts to suggest that the
departure of the victim from her place of employment was occasioned by any
thing other than removal and confinement by force, ultimately resulting in her
death. This issue is without merit.5
B. Aggravated Sexual Battery
Next, the appellant challenges his conviction for the aggravated sexual
battery committed against Michelle Blake. Although he concedes that the proof
5
W ithin this issue, the appellant, again, contends that the indictment fails to allege that
"any removal or confinement substantially interfered with the victim's liberty." This contention has
prev iously been add ressed in Section I, and, w as fo und to be withou t m erit.
12
establishes serious bodily injury, i.e., multiple stab wounds, he contends that
there is "no proof of any sexual contact with Mrs. Blake's body either before or
after her death. The entire proof on this issue consisted of the testimony that. . .
a semen stain was recovered from the left portion off her body extending from
her left breast to her abdominal area." He argues that the "record discloses no
evidence whatsoever that the victim's intimate parts were touched as part and
parcel of a sexual act."
In order to sustain a conviction for aggravated sexual battery, this court
must find that the proof establishes that the appellant made unlawful sexual
contact with the victim and caused bodily injury to the victim. Tenn. Code Ann. §
39-13-504 (a)(2) (1989). "'Sexual contact' includes the intentional touching of
the victim's, the defendant's, or any other person's intimate parts, or the
intentional touching of the clothing covering the immediate area of the victim's,
defendant's, or any other person's intimate parts, if that intentional touching can
be reasonably construed as being for the purpose of sexual arousal or
gratification." Tenn. Code Ann. § 39-13-501(6) (1989) (emphasis added).
"'Intimate parts' includes the . . . breast of a human being." Tenn. Code Ann. §
39-13-501(2). Again, as the appellant concedes, the proof showed semen stains
on Michelle Blake's left breast and abdomen. DNA evidence, identity testimony,
and other circumstantial evidence linked the appellant to the crimes committed
against Mrs. Blake. Clearly, from the proof introduced, the jury could have
rationally inferred that it was the appellant who deposited the semen on the
victim's breast. This fact is sufficient to establish sexual contact. Our statute
does not require that “intentional touching” of the victim’s intimate part result from
direct contact with the defendant’s hand or any other part of the defendant’s
body. This issue is without merit.
C. Identity of the Perpetrator
13
The appellant's main contention regarding his challenge to the sufficiency
of the evidence is that the proof fails to establish that he is the perpetrator of the
offenses. Specifically, the appellant questions the reliability of eyewitness
testimony identifying him "as the individual at the Pit Stop South at or near 8:50
p.m. or thereafter on April 19," and, he attacks the accuracy of the scientific
evidence due to deficient collection of evidence and inappropriate scientific
procedures.6 The State responds that both the direct and circumstantial proof
establish the appellant as the offender in this case.
Ed Martin and Sylvia Fults provided identification testimony at trial.7
Moreover, the proof at trial revealed numerous matching characteristics between
the appellant’s truck and the truck driven by the abductor of Michelle Blake. Both
trucks were described as older model trucks, both short-wheeled base, both gray
in color, both displayed Grundy County license plates, both had loud mufflers,
both had chrome on the side, and both had the name “Chevrolet” on the tailgate.
Fibers later obtained from the appellant's truck were consistent with those
obtained from Michelle Blake's clothing. Other proof revealed that testing of the
semen found on Michelle Blake's body indicated that the perpetrator has Type B
blood. The appellant has Type B blood. Moreover, the DNA binding patterns
obtained from the two samples matched.8
The State must prove beyond a reasonable doubt that the accused is the
person who committed the offense. See White v. State, 533 S.W.2d 735, 744
(Tenn. Crim. App. 1975), perm. to appeal denied, (Tenn. 1976). Identity of the
6
The appellant co nte sts the adm issibility of the D NA opinion evidence. T his allegation is
add ressed as a sep arate issue by the app ellant and w ill be so addre sse d by this cou rt. See infra
Section III.
7
Although less than pos itive identifica tion wa s pro vided by either, Ed M artin tes tified, "I
think I can identify the person in the truck," and pointed to the appellant. Fults testified that the
app ellant looked like th e m an s he s aw a t the Pit Stop S outh “exc ept fo r the hair and we ight.”
8
The frequency of the binding pattern in Caucasians is 1 in 19,000.
14
accused may be accomplished by either direct or circumstantial evidence, or
both. State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975). The
determination of identity is a question of fact for the jury after a consideration of
all competent evidence. See Biggers v. State, 411 S.W.2d 696, 697 (Tenn.),
cert. granted, 390 U.S. 404, 88 S. Ct. 979 (1968) (affirmed on other grounds);
Marable v. State, 313 S.W.2d 451 (Tenn. 1958); State v. Crawford, 635 S.W.2d
704 (Tenn. Crim. App. 1982); State v. Hodge, No. 6 (Tenn. Crim. App. at
Jackson, June 30, 1987). Likewise, the determination of whether all reasonable
theories are excluded by the circumstantial evidence presented is primarily a
question of fact for the jury. Pruitt v. State, 460 S.W.2d 385 (Tenn. Crim. App.
1970); Hodge, No. 6. This case is based entirely upon circumstantial evidence.
Before an accused may be convicted upon circumstantial evidence alone, the
facts must be “so clearly interwoven and connected that the finger of guilt is
pointed unerringly at the defendant and the defendant alone.” State v. Howell,
868 S.W.2d 238, 253-254 (Tenn.), cert. denied, - - U.S. - -, 114 S. Ct. 1339
(1993).
We conclude that the proof in the record points the finger of guilt
unerringly at the appellant and the appellant alone, and that the proof was
sufficient for a jury to have found the essential elements of the offenses beyond
a reasonable doubt.
III. DNA Opinion Evidence
Prior to trial, the appellant filed a motion in limine seeking to exclude the
results of a DNA profiling analysis performed by Cellmark Diagnostics, a private
Maryland laboratory contracted by the Tennessee Bureau of Investigation in the
present case. These results revealed that the appellant's DNA matched DNA
15
samples (semen) recovered from the victim. At the conclusion of a lengthy
hearing on the appellant's motion, the trial court, after considering the testimony
of Dr. Lisa Forman, a Cellmark representative, ruled that the expert testimony
concerning the DNA analysis was admissible.
At trial, Dr. Forman and Julie Cooper, a senior molecular biologist with
Cellmark, testified on behalf of the State regarding Cellmark's testing procedures
and the results attained in the present case. To rebut this testimony, the
defense presented the testimony of Dr. Marvin Shapiro, a professor at Emory
University, and Dr. Ronald T. Acton, a professor at the University of Alabama.
Dr. Shapiro opined that Cellmark used an insufficient database by failing to
employ an Appalachian subgroup database, in determining their frequency
calculation, and, as such, their results cannot be deemed accurate or reliable.
Dr. Acton commented on the ongoing concerns in the scientific community with
the use of ethidium bromide at the beginning of the analysis procedure.9 He
further noted that Cellmark's combination of probes furnished results which were
just an estimate at best and that Cellmark's method of combining probes has not
been scientifically validated.
On appeal, the appellant contends that the trial court failed to properly
apply Tenn.R.Evid. 702, 703, and 403 in reaching its decision to allow the State
to introduce DNA opinion testimony. Specifically, he asserts that the testimony
introduced by representatives of Cellmark Diagnostic, the testing laboratory, is
inadmissible because Cellmark's testing procedure indicates a "lack of
trustworthiness." In this regard, the appellant contests:
(1) Cellmark's use of ethidium bromide in the agarose gel before
electrophoresis;
9
Ethidium bromide is a florescent dye that binds to DNA, allowing it to be visualized.
16
(2) Cellmark's selection and use of a Caucasian database from
Delaware and failure to use a database exclusively from
Appalachia; and
(3) Cellmark's statistical analysis of the population frequencies.
The appellant challenges specific techniques employed by Cellmark in the
DNA analysis performed in this case. Due to the complex nature of the subject
matter, an understanding of the structure of the DNA molecule and the precise
procedures utilized is helpful to our review.
A. Scientific Background
I. DNA Structure
The DNA molecule is a double helix, shaped like a twisted ladder.
Phosphate and deoxyribose sugar form the rails of the ladder. Four chemical
bases -- Adenine (A), Cytosine (C), Guanine (G), and Thymine (T) - lie next to
each other on the sugar links along the sides of the ladder. Each A always
bonds with a T on the other side of the ladder, and each C always bonds with a
G on the other side of the ladder, so that the possible base pairs on the ladder
are A-T, T-A, C-G, and G-C. The base pairs, e.g., A-T, C-G, are connected by a
hydrogen bond, such that the bonds form the rungs of the ladder. There are
approximately three billion base pairs in one DNA molecule. The sequence of
the base pairs is the same in every cell of a person's body.
Of the three billion base pairs, ninety-nine and nine-tenths percent are
identical among all human beings. It is this identity that makes humans look like
humans. Thus, only the remaining one-tenth of one percent of a person's base
pairs vary from person to person.10 These sequences of variation from person to
person are known as polymorphisms. Polymorphisms are the key to DNA
10
W e note that identical twins have all three billion pairs the same.
17
identification because they create the individual characteristics of each human
being and they are detectable in laboratory testing.
ii. Generating DNA Profiles
Testing for DNA identification involves disassembling the ladder (DNA
molecule) in one of several ways. Cellmark Diagnostics, the testing laboratory in
this case, employs the Restriction Fragment Length Polymorphism (RFLP)
method of analysis. The RFLP method determines if there is a "match." A
"match" does not mean that the suspect is with certainty the source of the
genetic material found at the crime scene or on the victim, but only that the
suspect cannot be eliminated as a potential source. RFLP analysis involves
extracting and isolating small portions of the DNA molecule to examine sites on
the DNA that exhibit highly variable characteristics.11
The preliminary procedure is to extract a DNA molecule from a sample of
certain tissue or bodily fluid by using chemical enzymes and then to purify that
sample. The DNA molecule is "cut" into smaller fragments with chemical
scissors called restriction enzymes. These enzymes recognize certain base
pairs and sever the DNA molecule at specifically targeted base pair sites to
produce RFLPs. The cut fragments of DNA molecules (RFLPs) are next placed
in an agarose gel and ethidium bromide is incorporated into the gel.12 The gel is
then electrically charged to sort the fragments by length. This process is known
as electrophoresis. The electric current causes the fragments to migrate through
the gel. The distance traveled depends upon the length of the fragments; the
11
The following procedure explained herein summ arizes the RFLP procedure utilized by
Cellmark D iagnostic in the present case. W e acknowledge, however, that other variations of the
RFLP m ethod of DNA analysis exist and are employed successfully by other laboratories.
12
Questions have arisen concerning the use of ethidium brom ide at the beginning of the
process. Using ethidium brom ide prior to electrophoresis has been shown to alter the mobility of
fragm ents at high DN A co nce ntration s, thus de creasing the reliability of fragm ent size
measurem ents.
18
shorter fragments, because they are lighter, will travel further in the gel. Once
migration has ceased, the fragments of known base pair lengths are placed in
separate lanes to allow the measurement of RFLPs in units of base pairs. A
nylon membrane is placed over the gel, permanently transferring the RFLPs to
this more functional surface.13 A denaturization process occurs during this step,
severing each double-stranded DNA fragment into two single strands. This
facilitates detection of specific RFLPs and Variable Number Tandem Repeats
(VNTRs), i.e., the number of repeat core sequences of base pairs which
determine the length of each RFLP.
RFLPs that are defined by specific sequences are detected by
hybridization with a genetic probe, a single stranded segment of DNA tagged
with a radioactive reporter molecule designed to detect a complementary single
strand base sequence.14 The membrane is placed in a bath that contains the
probe, and the probe hybridizes to the target denatured RFLP.
Next, the nylon membrane is placed in contact with a piece of x-ray film
where the radioactive probes expose the film at their respective locations.15
Black bands appear where the radioactive probes have bonded to the RFLPs,
producing a DNA "print," or autorad. The position of each band indicates the
location of a polymorphic segment on the blot. Location, in turn, indicates the
length of the DNA fragment that contains the polymorphic DNA segment.16 The
particular region on the DNA where a specific VNTR occurs is called a locus. A
locus is considered polymorphic when the number of VNTRs varies from
individual to individual. Each locus consists of variant forms of genes known as
13
Th is proces s is k now n as "Sou thern Blotting."
14
The probes utilized in this case were MS1, MS31, MS43, G3.
15
This pro cess is re ferred to as autoradiography.
16
It is the length of the DNA fragments that individualizes each living thing, thus, the
position of the bands on a DNA print can differentiate individuals.
19
alleles. Two allele forms occupy each locus, one on a chromosome inherited
from the mother, and one on a chromosome inherited from the father. When the
same form of allele occupies both loci on the chromosomes the individual is
homozygous for that allele, and when different alleles occupy the loci, the
individual is heterozygous for both alleles.17 Typically, this process is repeated
with four or five different probes. Several probes are necessary because,
although the degree of individualization for the two alleles that occur on one
locus is not high, it is extremely rare for two people to have eight or ten matching
alleles across four or five different loci.
The last step in the RFLP process is to determine if a match exists in the
two lanes of the autorad between the DNA sample from the suspect and the
forensic sample taken from the crime scene or the victim.18 If it matches, the
analyst must determine the likelihood that someone other than the suspect might
have the same DNA pattern. This calculation of the probability of a random
match generates a ratio to accompany a match, the purpose of which is to
express the statistical likelihood that an unrelated person chosen at random from
a particular population could have the same DNA profile as the suspect.
iii. Frequency Calculations
The initial process in generating this ratio involves the creation of an
autorad database. In the present case, Cellmark's database was comprised of
DNA autorads from Caucasian individuals who donated blood at a Delaware
blood bank, along with an African-American database, and a Hispanic database.
Racially similar databases are used to create a greater likelihood of a DNA
profile match, which safeguards against understating the probability of a random
17
The alleles which comprise the loci consist of multiple pairs of the nucleotide bases A, T,
G, a nd C , supra, wh ich bond according to th e base pair rule . In order to generate a profile that is
unique, C ellm ark studies four highly variab le sites referred to as polym orph ic loci.
18
In the present case, the six bands that were obtained from the DNA sam ple (semen)
recovered from the victim m atch the six ban ds o btaine d from the D NA labeled Jo hn C hap m an.
20
match.
Once a database is constructed, autorad band frequencies are calculated
by comparing the known bands with the database bands to determine how
frequently bands match. Scientists use either fixed or floating bin analysis to
calculate match frequencies. Binning helps to account for variables in recording
autorads, and provides confidence limits on frequency estimates. Cellmark
employs a floating bin analysis. Floating bin analysis focuses on the autorads
obtained from the evidence sample, around which individual bins are
constructed. Typically, floating bins are constructed with a resolution tolerance
of a certain number of standard deviations centered around the evidence band.
Database bands which fall within the bin created from the evidence band are
then assigned to the evidence band's floating bin to calculate band frequencies.
Binning typically results in higher probable match frequencies. The higher match
frequencies weigh in a suspect's favor because the probability calculations will
yield a greater chance of a random match.19
After individual band frequencies are calculated, the likelihood that the
complete autorad would be duplicated in a randomly selected individual is
calculated using the product rule. The product rule is simply the mathematical
formula used to determine the probability that two independent events would
occur simultaneously, calculated by multiplying the probability of each event.
Two product rule calculations are required to determine the likelihood of a
random profile match. First, the frequency of a match at each locus is
19
In the present case, a combination of two bands was necessary in order to calculate the
frequency. Cooper used the analysis specific to probes MS1 and MS31 because they could be
identified in the evidence as well as in the blood. However, the remaining three bands were either
MS43 or G3. So, a combined analysis was completed on the final three bands. Cooper testified
that the com bination of data in determining a frequenc y statistic results in a m ore cons ervative
num ber.
21
calculated.20 After the frequency for each locus is calculated, the frequency of
the complete genotype (genetic makeup of an organism) is calculated by
multiplying together the four loci frequencies.
Product rule probabilities are only accurate estimates if the events
underlying the calculations are truly independent and random. Independence
means the probability of finding one allele is not affected by having found any
other allele. For each locus, event independence occurs when there is no
correlation between the allele inherited from an individual's mother and the allele
inherited from that individual's father. When no correlation between the two
parental alleles exists the population sample is considered in Hardy-Weinberg
equilibrium.21 Several critics have noted that there is a problem in that the
product rule method is based on incorrect assumptions that (1) members of the
racial groups represented by the broad data bases, Caucasians, Black, Hispanic,
etc., mate within their groups at random, without regard to religion, ethnicity, and
geography, and (2) the DNA fragments, identified by DNA processing behave
independently and they are independent in a statistical sense. Contrary to the
assumption of random mating, ethnic subgroups within each random data base,
tend to mate within a specific subgroup, e.g., the Appalachian subgroup, Jewish
subgroup. Such endogamous mating tends to maintain genetic differences
between subgroups, as a result, the subgroups may have substantial differences
in the frequency of a given DNA fragment, or VNTR allele, identified in the
20
Be cause the bands generated at each locus depend on whethe r the individual is
homozygous or heterozygous for those particular alleles, the formula varies depending on the
allele form. The frequency for a homozygous allele is computed using the formula p(al)2; the
frequency for a heterozygous allele is computed using 2(p(al1)p(al2)); where p denotes
probability, and al represents each allele.
21
Hardy-W einberg prin ciples derive from an algebraic equatio n that describes th e genetic
equilibrium within a population. The principle states that gene frequencies will remain constant
from generation to generation within a population unless outside forces act to change it, provided
mating remains random.
22
processing step of DNA analysis.22 A given VNTR allele may be relatively
common in some subgroups but not in the broader database. Thus, some critics
argue that the current method, using the Hardy-Weinberg equation and the
product rule, will be reliable only if there is extensive study of VNTR allele
frequencies in a wide variety of ethnic subgroups. However, the National
Research Academy remarks that "[t]he goal is not to ensure that the ethnic
background of every particular defendant is represented, but rather to define the
likely range of allele frequency variation." NATIONAL RESEARCH COUNSEL , DNA
TECHNOLOGY IN FORENSIC SCIENCE 82-85 (1992). Moreover, to overcome the
problem of allele frequency within a genetic subgroup, the National Research
Academy recommends employing the ceiling principal in determining frequency
statistics. Id.
When requested, as in the present case, Cellmark also employs what is
known as the "ceiling principle" to calculate statistical frequencies. The ceiling
method also uses the product rule. This method obtains the most conservative
bin for every band and then multiplies it together, generally resulting in a more
conservative number. Using the aforementioned procedures, Cellmark
determined that the frequency reported, in the present case, as far as the
Caucasian race, was one in nineteen thousand.
B. Standard of Admissibility
In State v. Harris, 866 S.W.2d 583, 586 (Tenn. Crim. App. 1992), this
court addressed the proper standard for determining the admissibility of scientific
evidence and testimony. 23 The court acknowledged the Frye test, see Frye v.
22
This hypothesis is the basis of the appellant's challenge of Cellmark's results. He
argues that, sin ce an Appalachian subgroup was not em ployed by C ellm ark, the ratio produced in
the instant case cannot be accurate.
23
The appellant correctly states that Tenn. Code Ann. § 24-7-117 (1991) (admissibility of
the res ults of D NA analysis in civil or crim inal trials) is inconsequentia l to th e present c ase as it
only applies "to persons comm itting or attempting to comm it one of the offenses set out in § 40-
35-3 21 o n or a fter July 1, 199 1." See Com piler's Notes, Tenn. Code Ann. § 24-7-117. The
23
United States, 293 F. 1013 (D.C. Cir. 1923), which requires that the scientific
analysis from which the ultimate deduction is made must be "sufficiently
established to have gained general acceptance in the particular field in which it
belongs." Id. at 1014. Additionally, the court recognized the Tennessee Rules of
Evidence, which provide:
If scientific, technical, or other specialized knowledge will
substantially assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify in
the form of an opinion or otherwise.
Tenn.R.Evid. 702. However, the rule adds that the court "shall disallow
testimony in the form of an opinion or inference if the underlying facts or data
lack trustworthiness." Tenn.R.Evid. 703 (emphasis added).
The court in Harris chose not to accredit one standard over the other, as
the evidence at issue satisfied both requirements. See Harris, 866 S.W.2d at
587. Subsequently, however, the United States Supreme Court in Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587, 113 S. Ct. 2786, 2793
(1993), held that the Frye test, "absent from and incompatible with the Federal
Rules of Evidence, should not be applied in federal trials." Daubert does not by
its terms, however, apply to state court proceedings. Although Tenn.R.Evid. 703
and Fed.R.Evid. 703 are identical, Tenn.R.Evid. adds the sentence: "The court
shall disallow testimony in the form of an opinion or an inference if the underlying
facts or data indicate a lack of trustworthiness." In this respect, the Tennessee
rule expresses a greater concern with the bases of expert testimony than its
federal counterpart. Omni Aviation v. Perry, 807 S.W.2d 276, 281 (Tenn. App.
1990). Moreover, our supreme court has held that the requisite foundations
which must be established prior to the admission of scientific evidence are that
(1) the facts underlying the testimony must be reasonably relied upon by experts
offenses in the present case occurred on or about April 19, 1990.
24
in the particular field and (2) the facts must be trustworthy. State v. Ballard, 855
S.W.2d 557, 562 (Tenn. 1993); see also Advisory Commission Comments,
Tenn.R.Evid. 703. We conclude that the "general acceptance standard"
espoused in Frye is necessarily implicit within the requirements of Tenn.R.Evid.
703. See Advisory Commission Comments, Tenn.R.Evid. 702 (Tennessee law
is consistent with the Frye test). Accordingly, before expert testimony regarding
DNA analysis may be admitted in Tennessee, the proposed testimony and
evidence must meet the standards promulgated by Tenn.R.Evid. 702 and 703.
C. Application of Standard
The trial court concluded that Cellmark's techniques in generating a DNA
profile and formulating a statistical frequency were based on accepted scientific
practice and are trustworthy.24 See, e.g., Harris, 866 S.W.2d at 586 (approving
RFLP analysis); accord State v. Begley, No. 01C01-9411-CR-00381 (Tenn.
Crim. App. at Nashville, Jan. 11, 1996), perm. to appeal granted, (Tenn. July 1,
1996). Generally, the qualifications, admissibility, relevancy, and competency of
expert testimony are matters which largely rest within the sound discretion of the
trial court, unless such discretion is arbitrarily imposed. Ballard, 855 S.W.2d at
562; see also State v. Schimpf, 782 S.W.2d 186, 191 (Tenn. Crim. App. 1989).
Without evidence that Cellmark's standards were somehow deficient, we cannot
conclude that the trial court abused its discretion or that the laboratory's
conclusion was unreliable.
Once evidence is properly admitted, disputes over its reliability go to its
weight. Here, much of the appellant's attack focused on Cellmark's
implementation of DNA frequency analysis and specifics of Cellmark's
procedures, including the size of Cellmark's database, whether the sampling of a
24
The procedu res and protoc ols em ployed by Cellmark in the presen t case are
substantially in compliance with the recomm ended procedures of the Technical W orking Group on
DN A Ana lysis Me thods (TW GD AM ).
25
Delaware blood bank was truly random, and alleged problems with the
electrophoresis process. This attack was presented to the jury through the
testimony of Drs. Shapiro and Acton. Differences in the opinions of experts are
inevitable in the application of science to the law. In our opinion, these issues
were questions properly decided by the jury. The jury was free to reject the DNA
evidence if it concluded that the evidence was unreliable or misleading.
The appellant also argues that the evidence should have been excluded
because its probative value was outweighed by its prejudicial effect.
Tenn.R.Evid. 403. The appellant makes no argument in support of this
contention. As such, this claim is waived. Tenn. R. App. P. 27(a)(7).
26
Nonetheless, the testimony, in sum, was that the appellant could not be
excluded as a source of the semen found on the victim, but could not be
identified as the source with absolute certainty. Clearly, the probative value of
the expert testimony outweighed any prejudicial effect.
In summary, we conclude that the trial court properly analyzed the DNA
typing evidence according to the Tennessee Rules of Evidence. Furthermore,
we find that the existence of scientific debate does not, by itself, require
exclusion of evidence. The DNA statistical frequency analysis was generally
accepted by the scientific community at all times relevant to the trial court's
decision. Thus, the evidence exhibited both reliability and trustworthiness. The
trial court did not abuse its discretion in admitting the calculations as to
frequency probability, and it was for the jury to determine what weight, if any, to
give such evidence. Additionally, we note that the State did not rely exclusively
on the DNA evidence to prove its case. Sufficient evidence existed apart from
the DNA analysis from which the jury could have concluded the appellant's guilt.
This issue is without merit.
IV. Motion to Suppress
A hearing was held on March 1, 1994, regarding the appellant's motion to
suppress blood samples obtained from his person. At the hearing, the State
presented the testimony of only one witness, Larry Davis, a special agent with
the Tennessee Bureau of Investigation. Agent Davis explained that on June 7,
1990, the body of Vicky Sue Metzger was found in a wooded area adjacent to
the eastbound I-24 rest area near Monteagle. Davis was assigned to investigate
the Metzger murder. During the early stages of the murder investigation, Davis
talked with the appellant, who was the attendant at the eastbound rest area, and
27
Johnny Hood, the attendant at the westbound rest area. On this occasion, Davis
informed both men that they would be contacted in the future for additional
statements. On July 11, Davis issued subpoenas for both men setting a July 13
interview.
On July 13, 1990, Agent Davis met the appellant and Hood at the Grundy
County Jail. Both men gave sworn statements and both men consented to
provide a blood sample for DNA comparison analysis with the semen found on
the victim's body. The appellant and Hood were taken to Dr. Horbolt's office and
the samples were drawn. At no time did the appellant voice an objection to the
procedure. After the sample was drawn, the appellant left the doctor’s office.
Subsequently, on November 5, 1992, Agent Davis was again called to the
eastbound I-24 rest area to investigate an assault on Pamela Sue Back. When
Davis reached the Monteagle Police Station, the appellant was in custody and
had been provided Miranda warnings. Upon questioning by Agent Davis, the
appellant confessed that he had assaulted Back because he had been drinking
and smoking marijuana. Davis asked the appellant if he would provide a blood
sample for a drug screen. The appellant again consented. The appellant was
then transported to the Emerald-Hodgson Hospital in Sewanee where the blood
sample was taken.25
Several days later, Davis reviewed the I-24 incidents and the murder of
Michelle Blake with Agent Danny Wix and Investigator Bouldin. The officers
recalled that the perpetrator of the Blake murder had type B blood, the same
type possessed by the appellant. Agent Wix inquired about obtaining another
25
On July 17, 1990, at least seven additional TBI subpoenas were issued to area
hos pitals requiring them to produc e na m es a nd o ther p ersona l inform ation o n wh ite m ale pa tients
with blood type B. W e reject the appellant’s argument that this alleged dragnet approach violated
his constitutional rights under the holding of Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394
(1969).
28
blood sample from the appellant. Agent Davis responded that he had a blood
sample from the appellant drawn on November 5 at his office. This sample was
sent to Cellmark Diagnostics for DNA analysis in the Blake case. No alcohol or
drug screen was performed on this sample.
The appellant contends that the trial court erroneously denied his motion
to suppress the evidence stemming from blood samples taken from him on these
two separate occasions. In denying the motion, the trial court concluded that
"the blood samples provided by the appellant were done so consensually and
voluntarily."
The initial inquiry before us is whether the TBI subpoena issued to the
appellant on July 11, 1990, constituted a significant intrusion upon interests
protected by the Fourth Amendment.26 Fourth Amendment protections against
unlawful seizures are designed to "prevent arbitrary and oppressive interference
by officials with the privacy and personal security of individuals." INS v. Delgado,
466 U.S. 210, 215, 104 S. Ct. 1758, 1762 (1984) (internal quotations omitted).
Therefore, "not all . . . intercourse between policemen and citizens involves
seizures of persons. Only when an officer, by means of force or show of
authority, has restrained the liberty of a citizen may we conclude that a seizure
has occurred." Terry v. Ohio, 392 U.S. 1, 19, 88 S. Ct. 1868, 1879, n. 16 (1968).
Although the appellant, in the instant case, received a subpoena to appear for
further questioning, we cannot conclude that this amounted to more than a
request to respond to police questioning. First, no sanctions exist for failure to
comply with the request in the subpoena.27 Moreover, although most people will
26
Tenn. Code Ann. § 38-6-102 provides that "criminal investigators shall
have full power to issue subpoenas for witnesses . . . ."
27
The subpoena received by the appellant was captioned "Tennessee Bureau of
Investigation Su bpo ena " and provided, in pertine nt part:
You are hereby commanded to summ on John Chapman to personally appear
before the undersigned Special Agent of the Tennessee Bureau of Investigation
on July 13th , 19 92, at 1:00 p m at Grundy Co. Jail, Altamont, Tennessee and
29
comply with a police request, the fact that people do so, and do so without being
told they are free not to respond, does not eliminate the consensual nature of the
response. INS v. Delgado, 466 U.S. at 216, 104 S.Ct. at 1762. Unless the
circumstances of the encounter at issue are so intimidating as to demonstrate
that a reasonable person would have believed he was not free to refuse the
officer's request, one cannot say that the questioning resulted in a detention
under the Fourth Amendment. Id. Thus, although we concede the question is
perilously close, we conclude that the issuance of a TBI subpoena does not, per
se, constitute a seizure within the meaning of the Fourth Amendment. However,
this consensual encounter may escalate into a seizure as a consequence of
police behavior, e.g., threatening presence of several officers, the display of a
weapon by the officer, physical touching of the person, or the use of language or
tone of voice indicating that compliance with the officer's request might be
compelled. United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S. Ct. 1870,
1877 (1980). In the present case, Agent Davis testified that the appellant came
to the police station of his own free will. In fact, Davis had previously informed
the appellant of his intent to contact him for a subsequent statement, at which
time the appellant was cooperative. And, although the appellant bears the initial
burden of showing that there was a violation of some constitutionally protected
area to trigger further inquiry, there is no evidence indicating that the appellant
would have refused the subsequent interview notwithstanding service of the
subpoena. See State v. Burton, 751 S.W.2d 440 (Tenn. Crim. App. 1988).
Absent any evidence indicating force or coercion on the part of law enforcement
officials, the inoffensive contact, i.e., the questioning of the appellant at the jail,
cannot amount to an unconstitutional seizure. Id.
from day to day hereafter until discharged and bring all papers, books, records,
agreements, documents and to be sworn and questioned by the
und ersigned Sp ecial Agent for th e pu rpos e of g iving a w ritten sta tem ent,
delivering aforementioned items and obtaining evidence by said agent in an
inves tigation con duc ted by the T enn ess ee B urea u of Investigation perta ining to
TBI File 5A-530.
30
Although we have determined that the appellant's presence at the jail did
not constitute an illegal seizure, we must next determine whether the subsequent
taking of blood samples constituted an illegal search of the appellant's person.
The withdrawal of blood from a subject for purposes of serological typing and
DNA analysis constitutes a search within the constraints of the Fourth
Amendment and, therefore, a search warrant is generally required. See
Schmerber v. California, 384 U.S. 757, 767-72, 86 S. Ct. 1826, 1833-37 (1966);
see also State v. Jackson, 889 S.W.2d 219, 221 (Tenn. Crim. App. 1993), perm.
to appeal denied, (Tenn. 1994). Unless it falls within a specifically established
and well-delineated exception, a search conducted without a warrant is per se
unreasonable. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041,
2043 (1973) (citations omitted). "One of the specifically established exceptions
to both a warrant and probable cause is a search that is conducted pursuant to a
voluntarily given consent." Id. at 219, 93 S.Ct. at 2043, 2044 (citations omitted);
see also State v. Bartram, 925 S.W.2d 227, 230 (Tenn. 1996). The burden of
proof rests upon the State to show, by a preponderance of the evidence, that the
consent to a warrantless search was given freely and voluntarily. Schneckloth,
412 U.S. at 248-49, 93 S.Ct. at 2059; Bumper v. North Carolina, 391 U.S. 543,
548, 88 S. Ct. 1788, 1792 (1968); Bartram, 925 S.W.2d at 230. The question of
whether the appellant voluntarily consented to the search is a question of fact
which focuses upon the totality of the circumstances. Schneckloth, 412 U.S. at
248-249, 93 S.Ct. at 2059.
In the present case, the trial court accredited Agent Davis' testimony that
the appellant voluntarily consented to providing both blood samples. There was
no indication that the appellant's acquiescence to the "search" was the result of
force or coercion. In fact, the defense presented no proof to refute Agent Davis'
testimony. A trial court's finding that a search is consensual is presumed correct
31
and is conclusive on appeal unless the evidence preponderates against the
ruling. State v. Woods, 806 S.W.2d 205, 208 (Tenn. Crim. App. 1990), perm. to
appeal denied, (Tenn. 1991), cert.denied, 502 U.S. 1079, 112 S. Ct. 986 (1992);
see also State v. Dougherty, 930 S.W.2d 85, 86 (Tenn. Crim. App. 1996); State
v. Tuttle, 914 S.W.2d 926, 931 (Tenn. Crim. App. 1995). We conclude that the
evidence in the record supports the trial court's finding. This issue is without
merit.
V. Instruction on Identity
The appellant contends that the trial court committed reversible error by
failing to instruct the jury on the issue of identity as provided in State v. Dyle, 899
S.W.2d 607 (Tenn. 1995). The appellant concedes that, because his trial
occurred prior to the Dyle opinion, no special instruction regarding identity was
requested.28 In Dyle, our supreme court held that the identity instruction,
promulgated within that decision, must be given when identification is a material
issue. Dyle, 899 S.W.2d at 612. "Identity will be a material issue when the
defendant puts it at issue or the eyewitness testimony is uncorroborated by
circumstantial evidence." Id. at note 4. In our opinion, the trial court's failure to
instruct on identity in the present case was harmless. The proof regarding
identification was more than sufficient. The descriptions of the appellant and his
vehicle by numerous witnesses were generally consistent. Fibers from the
victim's clothing were determined to be consistent with fibers from the carpeting
of the appellant's truck. Most notably, the results of the DNA profile analysis
reveal that the appellant's DNA matched the DNA obtained from the semen stain
on the victim's body. It was within the jury's prerogative to assess the credibility
28
The appellant's trial began on March 21, 1994, concluding on April 2, 1994, over one
year prior to our supreme court's opinion in Dyle, 899 S.W .2d at 612, which was released on May
15, 1995 . How ever, Dyle is applicable both to those cases on appeal when the opinion was
released and to thos e ca ses tried after that date. Id.
32
of those who testified. Any error created by the failure to provide the Dyle
instruction was harmless. State v. Williams, No. 01C01-9505-CR-00146 (Tenn.
Crim. App. at Jackson, Nov. 12, 1996). This contention of the appellant is
without merit.
VI. Scope of Cross-Examination
Next, the appellant makes two arguments regarding the examination of
the DNA experts from Cellmark Diagnostics. Julie Cooper, a senior molecular
biologist with Cellmark, testified for the State. In response to defense counsel's
questions on cross-examination, Cooper testified that, in 1988, Cellmark
responded to an invitation extended by the California Association of Crime Lab
Directors to bid for services to complete forensic DNA analysis for the State of
California. Prior to being awarded the contract, Cellmark was required to submit
analysis on unknown controlled random samples.29 During further cross-
examination, defense counsel questioned Cooper concerning alleged errors
made by Cellmark on the sample tests.30 On re-direct, Cooper testified that forty
percent of Cellmark's cases originate from the State of California. She further
explained that, in regard to the 1988 test, "California was interested in seeing
how well Cellmark, as a laboratory, function[ed] on their test." The appellant
argues this re-direct testimony was error. He contends that these statements
constitute inadmissible hearsay, were made outside the scope of cross-
examination, and are self-serving statements offered in an attempt to bolster the
credibility of Cellmark.
29
Cooper testified that, unlike routine forensic testing, serological testing had not been
performed on the test samples. Therefore, Cellmark was not informed as to whether the samples
were blood, ketchup, etc.
30
Co ope r testified that "the re was o ne e rroneou s m atch m ade out of thos e 50 sam ples."
33
"The right to cross-examination is fundamental, thus, the denial of this
right to apprise the accused a fair trial is 'constitutional error of the first
magnitude.'" State v. Henning, No. 02C01-9504-CC-00115 (Tenn. Crim. App. at
Jackson, Jan. 9, 1997) (quoting State v. Hill, 598 S.W.2d 815, 819 (Tenn. Crim.
App. 1980)). Yet, the propriety, scope, manner and control of testimony and
other evidence, including the scope of cross and re-direct examination, is within
the sound discretion of the trial court, which will not be reversed absent an abuse
of that discretion. See State v. Barnard, 899 S.W.2d 617, 624 (Tenn. Crim.
App.), perm. to appeal denied, (Tenn. 1994) (citing State v. Banks, 564 S.W.2d
947, 949 (Tenn. 1978)); State v. Elrod, 721 S.W.2d 820, 823 (Tenn. Crim. App.
1986); Tenn. R. Evid. 611(a).
The scope of cross-examination extends to "any matter relevant to any
issue in the case, including credibility." Tenn.R.Evid. 611(b). The scope of re-
direct examination is generally limited to matters brought out during cross-
examination, however, new matters may be introduced. Bouchard v. State, 554
S.W.2d 654, 658-659 (Tenn, Crim. App. 1977); Lundy v. State, 521 S.W.2d 591,
594 (Tenn. Crim. App. 1974). It is within the trial court's discretion to allow a
party, on redirect examination, to supply testimony omitted by oversight, or to
clarify testimony given on direct examination, or, where the facts thus developed
34
are not inconsistent with his previous answers to ask a witness to expand his
testimony. Barnard, 899 S.W.2d at 624 (citing 98 C.J.S. Witnesses § 419
(1955)); see also State v. Owen, No. 1209 (Tenn. Crim. App. at Knoxville, May
26, 1989), perm. to appeal denied, (Tenn. Oct. 2, 1989) (citing C. TORCIA ,
W HARTON'S CRIMINAL EVIDENCE § 416 (4th ed.)). We find no abuse of discretion
by the trial court in permitting the introduction of Cooper’s testimony on redirect
examination. This issue is without merit.
Next, the appellant challenges the trial court's ruling which limited his
cross-examination of State's witness, Dr. Lisa Forman, an expert in the field of
DNA analysis. Forman testified that, in the present case, a Southern
Appalachian database was not used in determining a frequency ratio. Moreover,
in response to the challenge of "genetic inbreeding" in the Appalachian area,
she testified that she doubted the veracity of the stereotype associated with the
region and that, although "it would not be inappropriate to screen people from
this area", she does not believe that inclusion of such a database would change
the results of Cellmark's calculations. The appellant asserts that another
Cellmark employee, Dr. Charlotte Word, testified as an expert witness in an Ohio
courtroom that Cellmark did not employ an Appalachian database and, therefore,
she would be very concerned about the reliability of any projections using
Cellmark's existing databases. He argues that the trial court committed
reversible error by not permitting him to impeach Dr. Forman with the testimony
of her co-employee, Dr. Word. In support of his position, the appellant contends
that "[Cellmark] was the witness and that the only authority Forman or Cooper
had was to speak about what the lab collectively produced."
Impeachment of an expert witness is governed, generally, by
Tenn.R.Evid. 616 (bias or prejudice), Tenn.R.Evid. 618 (learned treatise), and
Tenn.R.Evid. 613 (prior inconsistent statement). However, the appellant
35
attempts to create a right of impeachment based upon alleged conflicting
positions of experts within the scope of their common employment. This
argument is misplaced. Again, the trial court has the discretion to impose
reasonable limits on cross-examination and, we will only find error when that
discretion has been abused. See Barnard, 899 S.W.2d at 624. In determining
whether limitations on cross-examination of government witnesses are so severe
as to amount to a violation of the Confrontation Clause, the reviewing court must
ascertain "whether the jury was already in possession of sufficient information to
make a discriminating appraisal of the particular witness' possible motives for
testifying falsely in favor of the government."31 United States v. Christian, 786
F.2d 203, 213 (6th Cir. 1986) (citation omitted); see also United States v. Harris,
No. 95-4356 (6th Cir. July 1, 1997). From the facts before us, we find no abuse
of discretion or infringement of the appellant's right to confrontation. The
proffered statements of the non-testifying witness, Dr. Word, were clearly
inadmissible hearsay. Moreover, the expert, in this case, was Dr. Forman, not
Cellmark Diagnostic. A business entity cannot be qualified as an expert, rather
an individual may be qualified as an expert through his or her employment with
that entity.32 See Tenn.R.Evid. 702. This issue is without merit.
VII. Sentencing
In his final issue, the appellant alleges that the trial court erred by
imposing the maximum sentences for his convictions for aggravated kidnapping
and aggravated sexual battery and by ordering that all three sentences be
31
The Confrontation Clause only guarantees "an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and to whatever extent, the
defens e m ight wish." Delaware v. Fensterer, 474 U.S. 18, 20, 106 S. Ct. 292, 294 (1985) (citation
om itted).
32
To be qualified as an expert, one m ust be particularly sk illed, learned, or experienced in
a sc ience, art, trade, business , profe ssion or voca tion. Otis v. Cambridge Mut. Fire Ins. Co., 850
S.W .2d 439 (Te nn. 1992).
36
served consecutively.
Review, by this court, of the length, range, or manner of service of a
sentence is de novo with a presumption that the determination made by the trial
court is correct. Tenn. Code Ann. § 40-35-401(d)(1990). This presumption only
applies, however, if the record demonstrates that the trial court properly
considered relevant sentencing principles. State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991). In making our review, this court must consider the evidence heard
at trial and at sentencing, the presentence report, the arguments of counsel, the
nature and characteristics of the offense, any mitigating and enhancement
factors, the appellant's statements, and the appellant's potential for rehabilitation.
Tenn. Code Ann. §§ 40-35-102, -103(5), -210(b) (1990); see also State v. Byrd,
861 S.W.2d 377, 379 (Tenn. Crim. App. 1993) (citing Ashby, 923 S.W.2d at
168). The burden is on the appellant to show that the sentence imposed was
improper. Sentencing Commission Comments, Tenn. Code Ann. § 40-35-
401(d).
A. Enhancement and Mitigating Factors
At the conclusion of the sentencing hearing, the trial court found five
enhancement factors and three non-statutory mitigating factors applicable and
imposed the maximum twelve year sentences for each conviction. The
enhancing factors found are as follows:
(a) Tenn. Code Ann. § 40-35-114(5) - The appellant treated the
victim with exceptional cruelty;
(b) Tenn. Code Ann. § 40-35-114(6) - The personal injuries inflicted
upon the victim were particularly great;
(c) Tenn. Code Ann. § 40-35-114(7) - the offense involved a victim
and was committed to gratify the appellant’s desire for pleasure or
excitement;
37
(d) Tenn. Code Ann. § 40-35-114(9) - The appellant possessed
and employed a deadly weapon during the commission of the
offense; and
(e) Tenn Code Ann. § 40-35-114(10) - The appellant had no
hesitation about committing a crime when the risk to human life
was high.
The trial court applied all five factors to both offenses.
The following mitigating factors were found:
Tenn. Code Ann. § 40-35-113(13):
1. The appellant did not have a significant history of criminal
convictions at the time of the present offenses;
2. The appellant had obligations to his child; and
3. The appellant served in the National Guard.
The appellant contends that any factor involving bodily injury is not
applicable to the aggravated kidnapping conviction since that element was
necessarily included within the offense. Additionally, he argues that factor (7)
also is not applicable to the aggravated kidnapping conviction. The State
concedes that factor (7), committed to satisfy the appellant's desire for pleasure
or excitement, is inapplicable to either offense. We agree.
Initially, we note that enhancement factors cannot be elements of the
offense charged. Tenn. Code Ann. § 40-35-114. The trial court applied factor
(6), that the victim's injuries were particularly great, to the appellant's conviction
for aggravated kidnapping and aggravated sexual battery. The appellant now
argues that the court erred in applying this factor. See State v. Nix, No. 03C01-
9406-CR-00211(Tenn. Crim. App. at Knoxville, Nov. 21, 1995); State v. Nunley,
No. 01C01-9309-CC-00316 (Tenn. Crim. App. at Nashville, Feb. 2, 1995), perm.
to appeal denied concurring in results only, (Tenn. May 8, 1995). Aggravated
kidnapping, in the present case, requires that the defendant committed the act of
"false imprisonment, as defined in §39-13-302, with the intent to inflict serious
38
bodily injury. . . ." Tenn. Code Ann. § 39-13-304. "Proof of serious bodily injury
will always constitute proof of particularly great injury." State v. Jones, 883
S.W.2d 597, 602 (Tenn. 1994). Thus, factor (6) may not be used to enhance the
appellant's sentence for aggravated kidnapping. However, aggravated sexual
battery requires that the defendant made unlawful sexual contact with the victim
and caused only bodily injury to the victim. Tenn. Code Ann. § 39-13-504 (a)(2).
If the proof supports a finding that the personal injuries were particularly great,
factor (6) is applicable to sexual battery cases. See State v. Kissinger, 922
S.W.2d 482, 488 (Tenn. 1996). The evidence establishes that the physical
injuries to the victim were particularly great. The trial court properly applied
factor (6) in enhancing the appellant's sentence for aggravated sexual battery.
Accordingly, upon de novo review, we conclude that the trial court
properly applied factors (5), the appellant treated the victim with exceptional
cruelty, Tenn. Code Ann. § 40-35-114(5)33; (9), the appellant possessed and
employed a deadly weapon during the commission of the offense, Tenn. Code
Ann. § 40-35-114(9); and (10), the appellant had no hesitation about committing
a crime when the risk to human life was high, Tenn. Code Ann. § 40-35-
114(10),34 to both offenses. However, factor (6) is only applicable to the
conviction for aggravated sexual battery.
Additionally, upon de novo review, we find factor (1), that the defendant
has a previous history of criminal convictions or criminal behavior, Tenn. Code
33
See Sta te v. Po ole, 945 S.W .2d 93 (Ten n. 1997).
34
Our supreme court held, in Jones, 883 S.W .2d at 602-603, that enhancement factor
(10) is not inh eren t in offense s wh ere s erious bo dily injury is an e lem ent of the offense c harg ed.
Factor (1 0) is appro priate whe re the con duc t of the pers on h as c aus ed o r incre ase d risk either to
human life in general or to the victim in particular and risk to human life is not an element of the
offense . State v. Fox, No. 03C01-9503-CR-00061 (Tenn. Crim. App. at Knoxville, June 21, 1996)
(citations omitted). W e conclude that stabbing the victim m ultiple times, resulting in her death,
and attempting to strangle her created a risk above and beyond that necessarily inherent in the
crim es of a ggravated kid napping and aggravated sexual batte ry.
39
Ann. § 40-35-114(1), and factor (8), that the defendant has a previous history of
unwillingness to comply with the conditions of a sentence involving release in the
community, Tenn. Code Ann. § 40-35-114(8), applicable to both offenses. The
appellant was convicted of driving under the influence in 1988. He admitted to
the use of marijuana, although he denied he had a drug dependency. See State
v. Massey, 757 S.W.2d 350, 352 (Tenn. Crim. App. 1988). See, e.g., State v.
Parsons, No. 01C01-9601-CC-00043 (Tenn. Crim. App. at Nashville, Jan. 30,
1997) (criminal behavior based upon use of marijuana). After the commission of
the instant offenses but prior to sentencing, the appellant committed and was
convicted of driving under the influence, driving on a revoked license, and
possession of marijuana. The appellant admitted to criminal behavior in the
assault of Pamela Back. State v. Marshall, 870 S.W.2d 532, 542 (Tenn. Crim.
App. 1993). This court has previously held that a sentencing court "can consider
criminal convictions or any other criminal behavior which occurred prior to the
sentencing hearing as constituting a previous history of criminal convictions or
criminal behavior, regardless of whether the convictions or behavior occurred
before or after the criminal conduct under consideration." State v. Poole, No.
02C01-9506-CC-00178 (Tenn. Crim. App. at Jackson, Jan. 31, 1996), affirmed
by, 945 S.W.2d at 93 (Tenn. May 12, 1997) (citing State v. Waters, No. 01C01-
9106-CR-00158 (Tenn. Crim. App. at Nashville, Feb. 20, 1992), perm. to appeal
denied, (Tenn. June 22, 1992)). The evidence supports application of factor (1).
Consequently, implicit within our finding that the appellant has a previous history
of criminal convictions and behavior is our rejection of the trial court's finding, as
a mitigating factor, that the appellant does not have a significant history of
criminal convictions. Moreover, the record indicates that the appellant received
suspended sentences for driving under the influence and driving on revoked
license convictions occurring after the instant offenses. Approximately five
months after being placed on probation, the appellant was charged with criminal
attempt to commit aggravated burglary. Subsequently, his probation was
40
revoked. Accordingly, factor (8) is also applicable. See State v. Hayes, 899
S.W.2d 175 (Tenn. Crim. App. 1995).
In reference to the trial court’s finding of the non enumerated mitigating
factor (13), “the appellant’s obligation to his child,” we hold this factor
inapplicable as we are unable to conclude that it is “consistent with the purpose
of this chapter.” Tenn. Code Ann. § 40-35-113(13). We find no nexus between
paternityship and mitigation of punishment. Moreover, support of a dependent is
by law an obligation and a duty. See Tenn. Code Ann. § 34-11-102(a) (1996).
We find it inappropriate to reward someone for that which they are already under
a moral and legal obligation to perform. We agree with the trial court’s finding
that the appellant’s service in the National Guard is a proper mitigating factor. In
sum, we find enhancing factors (1), (5), (8), (9), and (10) and one mitigating
factor applicable to both offenses. Regarding the aggravated sexual battery
conviction, we find the additional enhancing factor that the injuries to the victim
were particularly great, 40-35-114(6), applicable.
B. Length of Sentence
The appellant was convicted, as a range I offender, of aggravated
kidnapping and aggravated sexual battery, both class B felonies. See Tenn.
Code Ann. § 39-13-304(b)(1); Tenn. Code Ann. § 39-13-504(b). Accordingly, he
was subject to a sentence "not less than eight nor more than twelve years."
Tenn. Code Ann. § 40-35-112(a)(2) (1990). The trial court imposed the
maximum sentence, twelve years, for each offense. The appellant now
contends that, considering the trial court's misapplication of enhancement
factors, the court erred in imposing the maximum sentence within the range to
his two convictions.
41
Regarding the length of a sentence, the presumptive sentence shall be
the minimum sentence in the range if there are no enhancement or mitigating
factors. Tenn. Code Ann. § 40-35-210(c). Thus, the presumptive sentence for
the instant offenses is eight years. However, if there are both enhancement
factors and mitigating factors, the court must start at the minimum sentence in
the range, enhance the sentence within the range as appropriate for the
enhancement factors, and then reduce the sentence within the range as
appropriate for the mitigating factors. Tenn. Code Ann. §40-35-210(e).
"The weight to be afforded mitigating and enhancement factors derives
from balancing relative degrees of culpability within the totality of the
circumstances of the case involved." State v. Moss, 727 S.W.2d 229, 238
(Tenn. 1986). See also State v. Marshall, 870 S.W.2d 532, 541 (Tenn. Crim.
App. 1993). There is no particular value "vis-a-vis how many years should be
added or subtracted based on the presence of any of these factors." Moss, 727
S.W.2d at 238. Thus, with the purposes of the Sentencing Act in mind, the
sentencing court retains the discretion in determining the weight afforded to the
applicable factors. Id. at 273. Upon de novo review, with full consideration of
the applicable enhancers and single mitigator, the presumptive sentence at the
minimum of the range, and the nature and circumstances of these offenses, we
conclude that the maximum sentences of twelve years are justified for both
offenses. This issue is without merit.
C. Consecutive Sentences
Finally, the appellant contends that the trial court erred in ordering his
42
sentences to be served consecutively. At the conclusion of the sentencing
hearing, the court determined that, based upon the appellant's pending charges
for the murder of Vicky Sue Metzger and the assault of Pamela Sue Back, the
appellant qualified as a "dangerous offender," Tenn. Code Ann. § 40-35-
115(b)(4) (1990), and imposed consecutive sentences. The appellant contends
that the trial court’s consideration of the pending criminal charges for purposes of
imposing consecutive sentences was error.
If a defendant is convicted of more than one criminal offense, the court
may order the sentences to run consecutively provided that the defendant meets
at least one of the criteria enumerated in Tenn. Code Ann. § 40-35-115. In the
present case, the trial court imposed consecutive sentences based upon the
appellant's classification as a dangerous offender. Thus, we must determine
whether the appellant qualifies as a "dangerous offender." Tenn. Code Ann. §
40-35-115(b)(4).
In Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976), our supreme court
held that "[a] defendant may be classified as a dangerous offender if the crimes
for which he is convicted indicate that he has little or no regard for human life,
and no hesitation about committing a crime in which the risk to human life is
high." (emphasis added). See also Tenn. Code Ann. § 40-35-115(b)(4); State
v. Wilkerson, 905 S.W.2d 933, 937 (Tenn. 1995). Again, the trial court relied
exclusively upon the charges pending against the appellant in classifying him as
a "dangerous offender." The mere fact that a charge is pending, without more,
furnishes neither evidence of criminal conduct nor proof that the defendant is a
dangerous offender. Thus, consideration of the pending murder indictment and
the related charges for purposes of consecutive sentencing was improper.
Rather, the focus remains upon the inherently dangerous nature of the instant
offenses. Gray, 538 S.W.2d at 393.
43
Notwithstanding the trial court's improper consideration of the pending
charges, upon de novo review, we conclude that the appellant is a "dangerous
offender." See Gray, 538 S.W.2d at 393. The appellant forcibly abducted the
victim from her employment, transporting her into the adjoining county. He
committed a sexual battery upon his victim. The medical report indicates
evidence of ligature strangulation in addition to seven stab wounds to her torso,
resulting in death. From these facts, it is obvious that the appellant’s “behavior
indicates little or no regard for human life and no hesitation about committing a
crime in which the risk to human life is high.” Tenn. Code Ann. 40-35-115(b)(4).
However, this classification alone will not justify consecutive sentencing.
Wilkerson, 905 S.W.2d at 938. "The proof must also establish that the terms
imposed are reasonably related to the severity of the offenses committed and
are necessary in order to protect the public from further criminal acts by the
offender." Id. In the present case, we find that the aggregate sentences are
reasonably related to the severity of the offenses and are necessary to protect
the public from further criminal acts by the appellant. Accordingly, the
appellant's sentences are ordered to run consecutively.
VIII. Conclusion
For the foregoing reasons, we affirm the judgment of convictions and the
sentences imposed for the offenses of first degree murder, aggravated
kidnapping, and aggravated sexual battery.
44
____________________________________
DAVID G. HAYES, Judge
CONCUR:
______________________________
GARY R. WADE, Judge
______________________________
CURWOOD WITT, Judge
45