State of Tennessee v. Thomas Dee Huskey ( 2002 )


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  •             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT KNOXVILLE
    April 11, 2001 Session
    STATE OF TENNESSEE v. THOMAS DEE HUSKEY
    Appeal from the Criminal Court for Knox County
    No. 49828 Richard Baumgartner, Judge
    AND
    STATE OF TENNESSEE v. THOMAS DEE HUSKEY
    Appeal from the Criminal Court for Knox County
    Nos. 49829, 49830, 50090  Richard Baumgartner, Judge
    No. E1999-00438-CCA-R3-CD1
    June 28, 2002
    The defendant, Thomas Dee Huskey, appeals as of right from his convictions and sentences for
    aggravated rape, rape, aggravated robbery, robbery, especially aggravated kidnapping, and
    aggravated kidnapping, for which he received an aggregate sentence of sixty-six years. The
    convictions relate to four victims and result from two trials that were consolidated for this appeal.
    The defendant raises numerous issues. Although we conclude that several errors occurred, only one
    requires reversal of any convictions. Because of improper consolidation, we reverse the judgments
    for the three aggravated rape convictions and one especially aggravated kidnapping conviction
    relating to the victim, D.C., but we affirm the remaining judgments of conviction.
    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part
    and Reversed in Part
    JOSEPH M. TIPTON, J., delivered the opinion of the court, in which DAVID H. WELLES AND DAVID G.
    HAYES, JJ., joined.
    Herbert S. Moncier and Gregory P. Isaacs, Knoxville, Tennessee, for the appellant, Thomas Dee
    Huskey.
    1
    Trial court Case Number 49828 was originally docketed for app eal as E1999-00481-C CA-R 3-CD . This court
    ordered that E1999-00481-CCA-R3-CD be consolidated with E1999-00438-CCA-R3-CD for appeal and that the
    consolidated appeal proceed under number E1999-00438-CCA-R3-CD.
    Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Erik W.
    Daab, Assistant Attorney General; and Randall E. Nichols, District Attorney General, for the
    appellee, State of Tennessee.
    OPINION
    The defendant was convicted in the Knox County Criminal Court in two cases, which will
    be referred to as the first rape case and the consolidated rape case. On October 20, 1995, the
    defendant was convicted by a jury in the first rape case for two counts of aggravated rape, a Class
    A felony, and one count of aggravated robbery, a Class B felony. The trial court sentenced the
    defendant as a Range I, standard offender to twenty-two years for each aggravated rape and eleven
    years for the aggravated robbery, ordering the sentences to run concurrently for an effective sentence
    of twenty-two years.
    On May 24, 1996, in a consolidated trial, the defendant was convicted by a jury on three
    counts of aggravated rape and one count of especially aggravated kidnapping, a Class A felony, of
    one victim; two counts of rape, a Class B felony, and one count of aggravated kidnapping, a Class
    B felony, of a second victim; and two counts of rape and one count of robbery, a Class C felony, of
    a third victim. The jury deadlocked on charges relating to a fourth victim. The trial court sentenced
    the defendant as a Range I, standard offender to twenty-two years for each aggravated rape and
    twenty years for the especially aggravated kidnapping of the first victim, ordering the sentences to
    run concurrently for an effective twenty-two-year sentence. It sentenced the defendant to eleven
    years for each rape and ten years for the aggravated kidnapping of the second victim, ordering the
    sentences to run concurrently for an effective eleven-year sentence. For the third victim, the trial
    court sentenced the defendant to eleven years for each rape and three years for the robbery, ordering
    the sentences to run concurrently for an effective eleven-year sentence. The trial court also ordered
    the sentences relating to each victim in the consolidated rape trial to run consecutively to each other
    as well as to the sentence from the first rape trial, establishing an effective sentence of sixty-six
    years.
    On appeal, the defendant raises the following issues, many of which relate to both the first
    rape case and the consolidated rape case and many of which have several subissues.2 We will first
    address the issue of whether the trial court properly consolidated all of the cases in the consolidated
    rape case because our holding affects our analysis of many of the other issues before us. We will
    next address the issues that relate to both cases, then the issues that relate only to the first rape case,
    and finally the issues that relate only to the consolidated rape case.
    I.         Whether the trial court erred in consolidating the cases in the consolidated rape
    trial.
    2
    Judge Ray L. Jenkins initially presided over the defen dant’s cases but recused himself on October 18, 1995
    before opening statements in the first rape trial. Judge Richard Baumg artner replaced Judge Jenkins and presided over
    both rap e trials.
    -2-
    ISSUES RELATING TO BOTH CASES
    II.     Whether the trial court erred in denying the defendant’s motion to dismiss for the
    denial of a speedy trial.
    III.    Whether the trial court erred in denying his motion to suppress evidence
    obtained as the product of his unlawful arrest and the illegal search of his
    home.
    IV.     Whether the trial court erred in denying his motion to suppress his
    statements.
    V.      Whether the trial court erred in allowing the state to determine the order of
    his trials.
    VI.     Whether reversible error occurred because the state failed to provide him
    with timely discovery and whether the trial court erred in refusing to review
    discovery materials.
    VII.    Whether the state withheld exculpatory evidence.
    VIII.   Whether the trial court erred by refusing to hear certain of his pretrial
    motions.
    IX.     Whether the trial court erred in limiting his proof regarding his insanity
    defense.
    X.      Whether the trial court erred in denying him a change of venue.
    XI.     Whether the trial court improperly denied him access to various records
    relating to the victims.
    XII.    Whether the trial court erred by allowing the state to use improper leading
    questions on direct and redirect examination and by allowing improper
    redirect examination.
    XIII.   Whether the trial court erred in admitting evidence not disclosed to him in
    discovery and not listed in the state’s notice of intention to use evidence.
    XIV.    Whether the trial court erred by prohibiting the testimony of Henrietta Ogle
    regarding the character traits of persons addicted to cocaine.
    -3-
    XV.      Whether the trial court erred in denying his motions for a mistrial.
    XVI.     Whether the state made improper comments in its opening statements and
    closing arguments.
    XVII.    Whether the trial court properly sentenced him.
    XVIII.   Whether the trial court erred in delaying and/or failing to rule on his post-
    trial motions.
    XIX.     Whether the trial court erred by failing to rule on his motions in arrest of
    judgment.
    XX.      Whether the trial judge was disqualified from presiding over the cases.
    XXI.     Whether the misconduct of the prosecutor requires dismissal of the charges
    or that the prosecutor be disqualified.
    ISSUES RELATING ONLY TO THE FIRST RAPE TRIAL
    XXII.    Whether the trial court erred in staying all other proceedings against him until
    completion of the first rape case.
    XXIII.   Whether the trial court erred in limiting his questioning on voir dire and in refusing
    to dismiss for cause potential jurors who knew about his cases.
    XXIV.    Whether the trial court erred by refusing to have a hearing during trial on
    his motion to suppress a photographic line-up.
    XXV.     Whether the trial court erred in admitting into evidence the victim’s
    statements that were contained in a hospital record.
    XXVI.    Whether the trial court erred in allowing the state’s improper cross-
    examination of Officer Chuck Whitson, whom the defendant had called as
    an adverse witness.
    XXVII. Whether the trial court erred by failing to rule as the thirteenth juror.
    -4-
    ISSUES RELATING ONLY TO THE CONSOLIDATED RAPE TRIAL
    XXVIII. Whether the trial court erred in denying his motion to sever his factual defenses
    from his insanity defense.
    XXIX.     Whether the trial court erred in the number of peremptory challenges it
    allowed the parties.
    XXX.      Whether the trial court erred by allowing jurors to have telephone contact
    while sequestered.
    XXXI.     Whether the trial court erred by allowing the state to elicit new testimony
    in its redirect examination of Detective Tom Pressley.
    XXXII. Whether the trial court erred in failing to grant his motion for judgments of
    acquittal due to the variance between the dates in the bill of particulars and
    those proven by the state and to instruct the jury on the dates alleged in the
    bill of particulars.
    XXXIII. Whether the trial court erred in denying his motions for judgment of
    acquittal.
    We hold that some error exists with regard to Issues I, III, VI, XVI, XVII, XXV, and XXVI.
    With respect to these errors, only the consolidation error requires reversal.
    FACTS
    A. First Rape Trial
    The victim testified that on July 17, 1992, she spent the night at the East Fifth Avenue
    apartment of Tina Kelly, a friend. The morning of July 18, she walked to the Krystal on Magnolia
    Avenue to buy breakfast. She said that as she was walking back to her friend’s apartment, the
    defendant, who was driving in the opposite direction, stopped his car and asked her for directions
    to Esau’s Auction Company. She gave him directions, but the defendant said that he could not hear
    her. She went to the driver’s side of the car, and as she raised her right arm to point the direction,
    the defendant pointed a gun under her arm. The defendant then pulled her through the window of
    his car and drove away while her legs were hanging outside the window. The defendant told her that
    he would kill her if she did not get her feet into the car. Although she tried to lift her head, the
    defendant kept pushing her down into the seat.
    The victim testified that when the defendant stopped the car, she recognized that they were
    at a barn in Chilhowee Park. The defendant told her to get out of the car, but when she opened the
    -5-
    passenger’s door, the defendant became very angry. The defendant told her that if she did not do
    everything he told her to do, he would kill her. The defendant, who called her derogatory names
    throughout, told her that she was going to perform oral sex on him and that he was going to have
    sexual intercourse with her. The defendant ran to the passenger’s side of the car and told her to get
    on her knees. When she did not comply, the defendant, who had her hair wrapped in his hand, threw
    her against the car and then forced her to her knees. She began praying, and the defendant told her
    to shut up and grabbed her necklace, bearing a cross. The defendant then said, “Even God can’t help
    you now.” The defendant exposed his penis and put it in her mouth. The defendant was not satisfied
    and told her to do it right or he would kill her. She then performed oral sex on the defendant.
    The victim testified that she had a pocketknife in her shorts pocket and that after she had left
    the car, she took the knife out of her pocket and opened the blade. However, when the blade locked,
    the knife clicked, which the defendant heard. She swung the knife at the defendant, but the
    defendant threw her to the ground, causing her to drop the knife. The defendant picked up the knife,
    told her that she had made a big mistake, and threw the knife behind him.
    The victim testified that the defendant forced her to crawl into the barn, where he took $42.55
    and a diamond tennis bracelet from her. The defendant had her take off her clothes, except for her
    socks and shoes, and crawl into a stall, where he vaginally raped her. The defendant made her
    change positions several times and had her stay in each position for the same amount of time, using
    his watch to keep time. The defendant attempted to rape her anally but was unsuccessful. The
    victim said that she did not see the defendant’s gun after she got out of the car.
    The victim testified that a rope was hanging from a board in the stall and that the defendant
    tried to put it around her throat. The rope, which she identified, was introduced into evidence. She
    said that the rope was too short for the defendant to put it around her throat, which upset him greatly.
    The defendant continued to rape her, and at some point, the defendant saw a shadow on the wall,
    causing him to stand and pull up his pants. The defendant said, “If it’s the law, I’ll protect you.”
    The defendant then left the barn, and when she heard his car start, she opened the door and ran. Still
    nude, she ran through the parking lot next to the zoo, past the children’s museum, and out the
    Beaman Lake gate. Before she got to Fifth Avenue, she stopped and put on her clothes, which she
    had been carrying. She said that she left her underwear in the barn.
    The victim testified that she ran to Ms. Kelly’s apartment and that she did not see a person
    from the time that she ran from the barn until she got to the apartment, where she passed Ms. Kelly’s
    boyfriend on the steps. She did not tell him that she had been raped. She went inside the apartment
    and took a bath. Ms. Kelly was at work, and there was no telephone in her apartment. The victim
    could not move her arm and was in severe pain. Around 10:30 p.m., she telephoned her aunt, told
    her that she fell down the steps, and asked if she would drive her to the hospital. Her aunt took her
    to St. Mary’s Emergency Room, where the victim initially complained only about her shoulder pain.
    She eventually told a nurse that she had been raped, and shortly thereafter, Jean Spangler from the
    -6-
    Sexual Assault Crisis Center (SACC)3 interviewed her. She told Ms. Spangler what happened.
    Later, Knoxville Police Detective Stan McCroskey came to the hospital in the early morning hours
    of July 19. She described her attacker to him and agreed to meet him at the police station later that
    day. At the station, she again described her attacker, stating that he had a beard that was trimmed,
    not long and scraggly, and that his hands were neat and his fingernails were clean. She told the
    detective that her attacker’s eyes were “too close together,” and she also described the clothes that
    her attacker was wearing – jeans, a brown belt with a set of keys hooked around it, and a black T-
    shirt that had elephants and the words “T.I.G.E.R. Zoo” on it.
    The victim testified that on the afternoon of July 19, she went to the barn with Detective
    McCroskey, another police officer, and a woman from the SACC. In the stall where she had been
    raped, they found her underwear as well as a brassiere that was not hers. They could not find her
    pocketknife. The victim stated that she returned to the police station sometime in October and was
    shown a series of photographs, from which she identified the defendant as her attacker. This same
    photograph array was shown to her in court, and she identified the photograph of the defendant. The
    victim also identified the defendant in court as her attacker.
    The victim testified that she was not a prostitute and that she had never sold her body. She
    stated that she was addicted to cocaine and that before July 18, 1992, she had been in outpatient
    treatment once and inpatient treatment in January 1992, after which she stayed clean for several
    months before relapsing about three weeks before the rape. During that three-week period, she used
    mostly cocaine but also marijuana. She denied using Valium or Xanax during that time, and she
    could not remember if she drank alcohol. She stated that she was sober when she awoke the morning
    of the 18th. About four or five days after the rape, she returned to treatment, but she relapsed again
    after she got out. She stated that she was sober at the trial.
    On cross-examination, the victim testified that on July 18, 1992, at the hospital, she described
    her attacker to Detective McCroskey, who completed a police report. According to the report, she
    had described her attacker as five feet, eight inches tall and weighing two hundred twenty pounds.
    She also described her attacker’s hair as “collar length.” On July 19, Detective McCroskey
    interviewed her at the police station, recording the interview. During this interview, she stated, “He
    wasn’t that much taller than me. I’m about five seven. He was maybe 1 or 2 inches taller than me.”
    Regarding her attacker’s weight, she said, “I’m pretty sure it was over two hundred, but judging
    weight is not one of my better things.” After Detective McCroskey told her that he was five feet,
    eight inches tall and weighed two hundred fifteen pounds, she responded that her attacker “was about
    [his] size, maybe.” Also during the interview, she said that her attacker “seemed to be clean-cut .
    . . . [H]is hair wasn’t shaggy or anything, and his beard and mustache were pretty even.” She said
    that on October 27, 1992, Detective McCroskey showed her a photograph of the defendant with a
    3
    The parties, witne sses, and the trial cou rt frequen tly refer to the agen cy as the Rape Crisis Center. The records
    from the center as well as the motion to quash the defendant’s subpoena filed by the center reveal the Sexua l Assault
    Crisis Center to be the correct name.
    -7-
    ruler in the background. She acknowledged that the photograph showed that the defendant was over
    six feet tall and that the defendant had shoulder-length or longer hair.
    The victim acknowledged that in an interview with defense counsel on May 14, 1995, she
    gave a different description of her assailant than the one she had given on July 18 and 19, 1992.
    During the May 14th meeting, she had stated, “I would say [he was] at least six inches taller than me.
    I’m about five seven. . . . He’s around six foot, six one, something like that.” She also said that her
    attacker’s hair was “about down to his shoulders” and that the defendant looked “nasty. He had
    brown hair and a beard. He had Band-Aids all over his hands.” She also stated that according to the
    transcript of the May 1995 interview, she had said that she was addicted to cocaine but had been
    clean for about a year and a half at the time of the attack. However, she testified that she may have
    said a month and a half. She also acknowledged that she had told defense counsel that she had been
    clean for at least six months before the attack and had relapsed after the attack. At trial, she testified
    that she did not use cocaine the day of the attack but admitted to using it the day before the attack.
    Also, she said in the May 1995 interview that she did not drink alcohol or use any drugs other than
    cocaine. She explained at trial that she was referring to the time when she made the statement, not
    the time of the attack. Defense counsel also questioned her in the interview about how she supported
    her drug habit, to which she responded that she worked and wrote bad checks for about fifteen
    hundred dollars, although she paid the checks later. She admitted at trial that she only had three
    warrants for writing bad checks, totaling about seventy dollars, and that these warrants were from
    1993.
    The victim testified that she had been treated at the Detoxification and Rehabilitation
    Institute (DRI) three times, once as an outpatient and twice as an inpatient, the last being on July 22,
    1992. She acknowledged that according to the DRI intake records, the July 22, 1992 admission was
    her fourth. The records also showed that she stated that she had legal problems relating to writing
    bad checks and failing to appear in court. She could not explain why the only warrants for writing
    bad checks were from 1993. The DRI records also provided that she went to the emergency room
    on July 18, 1992, because she was “‘jumped’/raped.” She testified, however, that she did not use
    the word “jumped” and that she did not know that “jumped” was a street term for agreeing to have
    sex for money but not getting paid. Regarding her recent drug use, the intake records showed that
    she had stated that she both used marijuana and drank alcohol one week ago. She also acknowledged
    that the DRI records indicated that she had her first “blackout” at age twenty-five, but she testified
    that this was the only time she had ever had one. In response to being asked about the DRI records
    showing that she said she had experienced drug-induced hallucinations, she stated that the writing
    on the records was not hers. Regarding her drug history for the previous six months, the DRI records
    showed that she had been doing two and one-half grams of cocaine per day. The victim said that this
    amount of cocaine would cost about two hundred dollars.
    The victim testified that she had a job driving a school bus for handicapped children and that
    she wrecked the bus while under the influence of drugs. She was not fired for this, but she
    voluntarily quit. She said that she had never been fired from a job because of her drug habit, but her
    habit had caused her to quit jobs. She said that she worked at Walgreen’s during the six months
    -8-
    before the attack but could not remember if she quit that job before July 18, 1992. She stated that
    she financed her drug habit from money earned by working and from money that she received in a
    settlement. She said that she also got drugs from friends.
    The victim testified that she did not know what medication she received at the hospital on
    July 18, 1992, but she acknowledged that her DRI records indicated that she took Percocet while
    there. She admitted that the DRI records showed that she had stated that her reasons for wanting to
    quit doing drugs was “to refresh [her] memory.” She testified that by this she did not mean that she
    was having trouble with her memory or with hallucinations. Rather, she meant that she wanted to
    clear her “head of any kind of fog, depression, so on and so forth.” She acknowledged that her
    response on the DRI form to whether she had a problem remembering things was, “Yes, short-term
    memory loss.”
    The victim also testified on cross-examination that she did not know if the Magnolia Avenue
    area was a high-crime, high prostitution area. Regarding July 18, 1992, she said that she was not
    carrying any personal identification but that she was carrying a knife. She stated that when the
    defendant stopped his car and asked her for directions, they were only a few blocks from Esau’s.
    She said that the defendant pulled her into the car through the driver’s window with one hand, while
    his other hand held the gun. The defendant held her head down as he drove away, and she did not
    know which hand the defendant used to steer the car. After she got out of the car, the defendant
    knocked her down, and then he grabbed her upper right arm and pulled her close to him. At that
    time, she reached into her right shorts pocket with her right hand and grabbed her knife. She said
    that she could not open the knife to the point that the safety would catch with one hand, but she was
    able to use her fingers to open the knife and then use her leg to extend the blade. When the safety
    clicked, the defendant threw her against the car, causing her to drop the knife. She said that the
    defendant was violent, hitting her and ramming her head into the side of the barn.
    The victim testified that when she ran from the barn, she did not see anyone in Chilhowee
    Park. She did not stop at any of the houses on Fifth Avenue to ask for help or tell anybody about the
    attack once she reached Ms. Kelly’s apartment. She also did not tell her aunt about the attack but
    told her that her shoulder hurt from falling down the stairs. She admitted that she had arthritis in her
    shoulder as well as in other parts of her body but said she went to the hospital because her shoulder
    was injured during the attack. She said that she did not have medical insurance at that time but
    acknowledged that the hospital records indicated that she said she had insurance. After being
    admitted and talking to a nurse for some time, the victim told her that she had been raped. The nurse
    was the first person whom she told that she had been raped.
    On redirect examination, the victim testified that when she was running from the barn to her
    friend’s apartment, she did not stop at a house to ask for help because she was terrified and in shock.
    She stated that she initially did not reveal her real reason for being at the hospital because she did
    not want to tell anybody about the rape. She just wanted to be able to move her arm and go home.
    The victim again identified the defendant as the person who attacked and raped her. The state rested
    its case.
    -9-
    The defense called Henrietta Ogle, a certified alcohol and drug counselor, who testified that
    she was familiar with the general characteristics of individuals who are addicted to cocaine. She
    stated that crack cocaine was extremely addictive, physically and psychologically. She said that two
    and one-half grams of cocaine would have a street value of three to four hundred dollars and that
    smoking that amount per day would be a severe addiction.
    Dr. Roger Allen Hubbard, the director of molecular pathology at Blount Memorial Hospital,
    testified that he specialized in DNA analysis. He stated that a rape kit would include a comb to
    obtain the victim’s pubic hair, which would likely contain hairs from the rapist; tubes to store the
    victim’s blood; tubes to store the victim’s vaginal secretions; and cotton swabs to obtain semen from
    the vagina. Through DNA analysis, the rape kit evidence can identify individuals with a very high
    probability of accuracy. He stated that the standard procedure for preserving DNA evidence
    involved allowing the swabs to air dry for twenty-four to forty-eight hours and then storing them in
    a non-plastic envelope. He said that once the sample was dry, the DNA was very stable and would
    not spoil, unless it was subjected to adverse conditions such as sunlight or extreme heat. Dr.
    Hubbard said that the samples did not need to be refrigerated and that allowing the swab to stay wet
    for an extended period of time, like in a plastic bag or in a refrigerator, can compromise the integrity
    of the DNA. He testified that bathing would not affect the ability to find DNA in the vaginal canal
    because the quantity of DNA needed to perform a test was very small.
    Ralph E. Green testified that he owned and operated Esau, Incorporated, which included
    Esau’s Antiques and Collectibles Market. He said that Esau’s Antique and Collectible Extravaganza
    was at Chilhowee Park in the Jacobs Building on the third weekend of most months. He stated that
    an Extravaganza, which included approximately three hundred fifty vendors and drew about eight
    thousand customers, was held on Saturday, July 18, 1992. He said that the vendors set up on Friday
    from 11:00 a.m. to 8:00 p.m. as well as on Saturday starting at 7:00 a.m. He said the Extravaganza
    opened at 9:00 a.m. and customers would usually line up at the front and back entrances before it
    opened. On cross-examination, Mr. Green testified that most customers would not enter the park
    through the Beaman Lake gate because they would have to walk farther to get to the Jacobs Building.
    Knoxville City Police Officer Chuck Whitson was listed as a state’s witness but was called
    by the defense. He testified that the rape kit from the victim had been kept by the police department
    since July 18, 1992, and that it had never been sent to the laboratory for analysis. He stated that he
    took photographs during his investigation of the case but that he did not have any photographs of the
    victim showing bruises or abrasions. He said that he did not remember any bruises or abrasions on
    the victim, who was wearing a hospital gown when he first saw her, and that none were brought to
    his attention. He said if he had seen any bruises or abrasions, he would have taken photographs of
    them.
    On cross-examination, Officer Whitson testified that he never examined the victim for
    bruises or abrasions. He stated that when he went to the hospital, he only talked briefly with the
    victim, who appeared to be really nervous, upset, and reluctant. He stated that on the following day,
    he accompanied the victim to the crime scene, and he identified the rope that had been entered into
    -10-
    evidence as the rope that he removed from the stall. He said that the rape kit was not sent to the
    laboratory because no one requested that it be sent. Then, after about one year, the samples were
    taken out of the refrigerator and stored in a non-refrigerated warehouse. Subsequently, he talked to
    a person at the Federal Bureau of Investigation (FBI) Laboratory and determined that there was no
    need to send the samples for analysis.
    Dr. Paul E. Kaufman was qualified as an expert in forensic medicine and testified that he had
    reviewed the victim’s DRI records. He stated that if the records were accurate, the victim had a
    serious addiction. He said that if the victim ingested two and one-half grams of cocaine per day for
    six months, she would have a substantially impaired judgment, memory, and concentration ability.
    She would also have a substantially impaired ability to accurately recall and describe events. On
    cross-examination, Dr. Kaufman testified that he had never interviewed the victim and had never
    interviewed a cocaine addict who had been brutally raped.
    Dr. John Bruce Irwin testified that he treated the victim in the emergency room at St. Mary’s
    Hospital on July 18 and early July 19, 1992. He stated that according to the hospital records, he did
    not find any abrasions or bruises on the victim. The victim complained about tenderness in her right
    shoulder and right elbow, and his examination revealed tenderness in her right shoulder, elbow, and
    hip. He stated that arthritis was consistent with pain and can be consistent with tenderness. He said
    that the victim’s injuries could have been consistent with falling down stairs. He testified that he
    did not find any evidence of a disturbance or redness around the victim’s vaginal or anal areas. He
    also did not find any evidence of forceful entry in either the vagina or anus. He stated that the
    records did not show that the victim was given Percocet, which is a strong, highly addictive, oral
    pain medication.
    On cross-examination, Dr. Irwin testified that he did not have an independent recollection
    of the victim. He said that his records did not indicate that the victim was under the influence of
    drugs but did state that the victim was tearful and upset.
    The parties stipulated that a complete search of all pertinent records revealed that there were
    no charges against the victim with the exception of the three warrants for writing bad checks in 1993,
    which were introduced into evidence. In the state’s rebuttal proof, it introduced a settlement sheet
    from a civil case involving the victim. The sheet showed that the victim received approximately
    $36,000 in April 1991. The jury found the defendant guilty of two counts of aggravated rape and
    one count of aggravated robbery.
    B. Consolidated Rape Trial
    The defendant was tried for offenses against four victims, D. C., G. T., D. L., and A. D. D.
    C. was the state’s first witness and testified that during the second week of August 1991, she was
    working as a prostitute outside the Circle-In, a bar in Knoxville. She said that around dusk, after the
    defendant drove past her a few times, she asked him if he was looking for a date and told him that
    she charged twenty dollars for oral sex and thirty dollars for vaginal intercourse. She stated that the
    -11-
    defendant was driving a small, yellow Toyota truck and was wearing corduroy pants, a flannel shirt,
    and work boots, on which there was red clay. The defendant accepted her offer, although he did not
    give her any money at that time. She got into the passenger’s side of the truck, and as the defendant
    drove away, he pulled out a pistol. She reached to open her door, and the defendant told her to jump
    because she was going to die anyway. The defendant drove on Magnolia Avenue, not stopping for
    red lights, to Chilhowee Park, where he parked his truck near a barn. The defendant got out of the
    truck, and as he was walking to the passenger’s side, she tried, unsuccessfully, to get out the driver’s
    side. The defendant opened the passenger’s door, grabbed her hair, pulled her out of the truck, and
    took her into the barn, locking it once inside. The defendant told her to cooperate or he would snap
    her neck.
    D. C. testified that once inside the barn, the defendant, who had his hand around her throat,
    told her to remove all of her clothes. She complied. The defendant then made her stand against a
    wall with her arms and legs spread, and he hit her several times. He then forced her to her knees and
    made her perform oral sex. The defendant, still holding her throat, made her stand next to a wire
    fence in the barn. He told her to spread her arms and legs, which she did, and then the defendant tied
    her hands and feet to the fence and had sexual intercourse with her. The defendant pulled his penis
    out of her vagina, ejaculated on her stomach, and had intercourse with her again. The defendant then
    put his hand on her throat, untied her, and took her to a trough in the barn. He forced her to bend
    over the trough, and he anally raped her. The defendant then made her lie on the ground, where he
    held her with his knees on her arms and both hands on her throat. He started choking her, but
    stopped when they saw lights from a car. The defendant then stood, kicked her, gathered her clothes,
    and left the barn, locking it and telling her that if she screamed or moved, he would shoot her. The
    defendant called her derogatory names throughout the episode, which lasted four to five hours, and
    told her that he was going to get and kill “all you whores.”
    D. C. testified that after the defendant left the barn, she stayed in the barn for about two hours
    because she could not move her legs. After regaining movement in her legs, she was able to unlock
    the barn and started walking, still naked, toward Magnolia Avenue. A man gave her a coat and drove
    her to the Circle-In. D. C. identified the defendant as the person who raped her.
    D. C. testified that after returning to the Circle-In, she spoke with Knoxville Police Officers
    Mark Pressley and Doug Stiles but that she did not file a formal complaint. On November 2, 1992,
    while incarcerated on charges for forgery, fraud, and aggravated robbery, she told Knox County
    Sheriff’s Lieutenant Larry Johnson and Detective Mike Upchurch what the defendant had done to
    her. They showed her an array of six photographs, from which she identified the defendant as her
    attacker.
    D. C. testified that she was in jail at the time of her testimony for violating her probation by
    failing to appear in court and that she had been convicted of soliciting prostitution, forgery, fraud,
    robbery, driving under the influence, driving on a suspended license, and driving on a revoked
    license. She stated that in August 1991, she frequently used drugs and alcohol but that she was not
    under the influence of drugs or alcohol the day she was raped.
    -12-
    On cross-examination, D. C. acknowledged that she had testified at a hearing on April 15,
    1996, and that before both that hearing and the trial, she talked with the prosecuting attorneys. She
    said that before the April 15 hearing, she and the other victims – G. T., D. L., and A. D. – attended
    a meeting in the district attorney’s office, where they were shown a chart containing facts relating
    to each of their cases. She was friends with the other victims, who were also prostitutes, and they
    watched out for each other on the street.
    D. C. admitted that at the April 15, 1996 hearing, she said the rape occurred during the first
    or second week of August. She explained that she was now certain that it occurred during the second
    week of August because she was making “regular” money when the rape occurred, stating that the
    first week of the month the prostitutes made “good” money. She acknowledged that in her previous
    testimony, she had stated that after the rapes, she talked to Mark Pressley and “papers [were] filed,
    but nothing happened at that time.” She admitted that nothing was filed regarding her case in 1991.
    Also, in her April 15 testimony, she stated that she stopped prostituting herself in 1994 and that she
    did not have a charge for prostitution in 1995. At trial, she testified that she was simply mistaken,
    acknowledging that she was arrested for prostitution on September 15, 1995. In her hearing
    testimony, she said that she had never robbed anybody. She testified, however, that in 1992, she had
    helped set up dates in order that two men could then rob people and that she had taken a woman’s
    car after fighting with her, although the charges relating to this event were dismissed. She also stated
    that she pled guilty to robbing a food market in 1994 but explained that she was driving the car and
    did not know that the two men accompanying her were going to rob the store. D. C. said that she
    also pled guilty to fraud and forgery charges for cashing stolen checks, although she stated that she
    did not steal the checks.
    D. C. testified that she first gave a statement to police on November 2, 1992, while in jail on
    six charges. She said that shortly after giving her statement, her bond was reduced from $50,000 per
    charge to $1,500 per charge, which enabled her to make bond. She said the police sometimes go
    lighter on people who help them. She acknowledged that although in her November 2 statement she
    said the defendant threatened her by saying he would break every bone in her body, she had said on
    direct examination that the defendant threatened her by saying he would snap her neck. She
    explained that “it all happened.” She also admitted that her November 2 statement did not mention
    the defendant telling her to take off her clothes. Further, in her statement, she stated that the
    defendant said he was going to hit her and commented, “like this – all you boys do.” At trial, she
    explained that this comment referred to men’s general tendency to hit women. She admitted that
    events, specifically being forced to perform oral sex, were not in the correct chronological order in
    her statement, stating that the events occurred as she testified on direct examination.
    D. C.’s November 2 statement also provided that she saw the defendant about one week after
    the rapes. She said that he was driving a blue, four-door Chevrolet Impala and was wearing a gold
    and black band uniform that had tassels on the shoulders. According to her statement, when the
    defendant propositioned her, she grabbed him and tried to stab him, at which point the defendant
    punched her in the face. She testified that the statement was incorrect because although she did try
    to stab him, she did not grab him and he did not punch her in the face. She explained that she tried
    -13-
    to grab him and that the defendant “punched the gas” and drove away. D. C. admitted that her
    statement said that she had been barred from the Circle-In for “pulling knives.” She explained that
    she was barred only for twenty-four hours for pulling a knife on a man who had hit her.
    D. C. testified that after she made bond in November 1992, she went to the Detoxification
    and Rehabilitation Institute (DRI). On her admission form, she stated that her occupation was
    cleaning houses. She testified that this statement was not a lie because although she was a prostitute,
    she also cleaned houses at that time. She said that the admission form correctly stated that she was
    having hallucinations and blackouts at that time as a result of heavy drinking and using cocaine. Her
    admission form indicated that she was using three-fourths of an ounce of cocaine per day as well as
    Dilaudid and Demoral. She had also stated on the form that she had been raped when she was an
    adult.
    D. C. testified that she pled guilty in 1994 to five counts of fraud and one count of robbery,
    receiving eight years of probation. On September 15, 1995, she was arrested for prostitution.
    Although she told her probation officer about the arrest, her probation was not revoked. On
    December 28, 1995, she was arrested for driving under the influence (DUI). Her prostitution case
    was continued until May 16, 1996, just three days before the defendant’s trial began. She received
    a five-day sentence, which was ordered to run concurrently with her DUI sentence.
    G. T. testified that in February 1992, she encountered the defendant while working as a
    prostitute. One Tuesday morning around 8:00 a.m., she was on the Gay Street viaduct when the
    defendant stopped his car near her. She asked him what kind of date he wanted, but he did not
    respond. Without discussing the type of date or payment, she got into the defendant’s car and
    suggested that he drive to Cahaba Lane, which the defendant did. She testified that she intended to
    have sex with the defendant for money.
    G. T. testified that when they arrived at Cahaba Lane, she and the defendant walked into the
    woods. She was carrying a pocketbook and was walking in front of the defendant. The defendant
    eventually told her to stop and asked her to remove her shirt, which she did. The defendant then
    asked her to put her arms behind her back. She complied, and the defendant tied her wrists together
    with a rope. When she turned around to face the defendant, he “started ripping out” her brassiere
    with a pocketknife and then told her to get on her knees. She got on her knees with her face to the
    ground. The defendant pulled down her pants and underwear and inserted his penis into her anus,
    which hurt and caused her to cry. She “bucked up” on him, kicking him with her left foot, at which
    point he stopped and told her to turn around. The defendant then attempted to have vaginal
    intercourse with her, but he could not achieve an erection. The defendant did touch her clitoris.
    After telling her that she was “too tight down there,” the defendant grabbed the back of her head and
    her throat and forced her to perform oral sex. Afterward, he told her that if she screamed, he would
    shoot her. Although she never saw the defendant with a gun, she “took his word” that he had one.
    The defendant then left her in the woods.
    -14-
    G. T. testified that the defendant called her derogatory names throughout the rape and told
    her that she was just like all the others. She said that after the defendant left, she was able to free
    her hands. After putting on her torn brassiere and shirt, she found her pocketbook, which the
    defendant had taken from her, with twenty-five dollars missing. She walked to Dimension 3, a hair
    salon, and asked for a glass of water. The police were called, and she told Officer Mark Young and
    later Detective Tom Pressley what happened. G. T. stated that she had rope burns on her wrists and
    scratches on her knees. Photographs of these injuries were introduced into evidence. She testified
    that she rode in Detective Pressley’s car and directed him to the crime scene. When they arrived,
    they saw a car, which she believed was the defendant’s, and as they approached the car, they saw the
    defendant, whom she identified as the person who raped her.
    On cross-examination, G. T. testified that she had been a prostitute for about ten years as of
    February 1992, when she initiated contact with the defendant and got into his car without an
    agreement as to the type of date they were going to have. She admitted that her intention was to have
    sex for money and that she suggested that they drive to Cahaba Lane, which was a “long way” from
    the Gay Street viaduct but a common place to take dates.
    G. T. stated that she had talked to the district attorney since she testified in a hearing on April
    16, 1996, but that he only told her to tell the truth. She acknowledged that in her April 16 testimony,
    she stated that she never saw a weapon at any time and she never mentioned the defendant having
    a knife or cutting her brassiere. She admitted that in her April 16 testimony, she never said that the
    defendant penetrated her anally or that she experienced pain from being penetrated anally. She stated
    that she previously testified that she performed oral sex before the defendant unsuccessfully
    attempted to vaginally rape her. She said that her testimony on direct examination was accurate,
    conceding that the defendant did not penetrate her vagina. G. T. testified that she attended a meeting
    with the other victims at the district attorney’s office but that the district attorney did not discuss the
    facts of the other victims’ cases with her. She acknowledged, though, that in her April 16 testimony,
    she stated that she remembered the district attorney telling her about a matrix that summarized each
    of the victims’ cases.
    G. T. testified that she did not tell the people in Dimension 3 that she was a prostitute.
    Likewise, she did not reveal to police that she was a prostitute in her February 27, 1992 statement.
    In that statement, she said that she had been kidnapped, raped, and robbed by a man who had picked
    her up on Jackson Avenue, that he drove her to a wooded area and forced her to perform oral sex,
    and that she then walked to a nearby business and called the police to report the crime. She admitted
    that her statement did not mention being anally or vaginally raped.
    The state offered Knox County Sheriff’s Detective Dan Stewart and Knoxville Police
    Detective Thomas Pressley for cross-examination, submitting that their testimony would be
    cumulative. In cross-examination, Detective Pressley testified that his department has reported that
    prostitutes in Knoxville are often drug addicts, thieves, and liars, especially when they want
    something. On February 26, 1992, around 2:00 p.m., he went to the Dimension 3 hair salon
    regarding a dispatch that Knox County Sheriff’s deputies had G. T. When he arrived, G. T. told him
    -15-
    that she had been applying for a job at Southeastern Janitorial Service on Jackson Avenue and that
    as she was leaving, a white male, driving a gray car with a child restraint seat on the backseat,
    offered her a ride to her job. G. T. told him that the man kidnapped her, drove her to Cahaba Lane,
    and forced her to perform oral sex on him. Detective Pressley said she did not tell him that she was
    a prostitute, that she voluntarily got into the defendant’s car, or that she suggested going to Cahaba
    Lane. He stated that Cahaba Lane was a remote area about two miles from Dimension 3. Because
    the complaint was made at 2:00 p.m., he assumed that the incident occurred around 1:00 p.m. Later
    that day, after he learned that G. T. was a prostitute, he confronted her, and she admitted that she was
    a prostitute and that she had lied about being abducted after leaving a job interview on Jackson
    Avenue.
    Detective Pressley testified that G. T. directed him to the crime scene and that the defendant
    was there when they arrived. He arrested the defendant and took him to jail, but Knox County was
    responsible for charging him. He stated that he was subpoenaed four times regarding the defendant’s
    case relating to G. T., but each time G. T. did not appear in court. The charges relating to G. T. were
    ultimately dismissed.
    On redirect examination, Detective Pressley testified that the car he saw when he arrived at
    Cahaba Lane matched the description G. T. had given him, including that a child restraint seat was
    on the backseat. He later determined that the car had been driven by the defendant. He stated that
    as they walked into the woods, they saw the defendant, whom G. T. identified without hesitation as
    her attacker.
    D. L. testified that she had been working as a prostitute for about two weeks when she met
    the defendant at the Circle-In on a day in the middle of September 1992. She asked him if he wanted
    a date, to which he responded that he wanted oral sex performed on him and that he would pay her
    fifty dollars. She agreed and got into his car, which she believed was a blue Buick. It was around
    1:30 or 2:00 p.m. at this time. The defendant told her that he was going to drive to where he took
    P. J., another prostitute whom they both knew. While in the car, the defendant gave her fifty dollars,
    which she put in one of her socks. The defendant drove to a dead end street, where he parked in
    front of a billboard, and then they walked to a mattress that was a few feet into some woods. He told
    her to remove her shirt and to get on her knees, which she did. She did not remove her brassiere or
    her shorts. The defendant then went to his car and got something out of his trunk, and when he
    returned, he pulled her up, put her hands behind her back, and tied them with twine or rope. At this
    point, the defendant took money out of her sock, but he did not take the fifty dollars that he had
    given her. Instead, from her other sock, he took over one hundred dollars that she had made earlier
    in the day.
    D. L. testified that as the defendant led her further into the woods, he had his hands around
    her neck and said, “I hate all prostitutes” and “I am going to kill you, bitch.” She begged for her life,
    telling the defendant that she had two children and that she wanted to see her father again. At some
    point, she escaped from the defendant and ran toward the car, but the defendant caught her. She then
    told him that somebody had driven up and seen them. The defendant then untied her hands, put her
    -16-
    in the car, and told her to put her shirt on. As he was driving, he told her that if she got out of the
    car at a stop light, he would find her and get her. The defendant dropped her off at the NAPA store
    on Magnolia Avenue. She was able to get the defendant’s license plate number when he drove away.
    D. L. stated that she did not call the police at that time because she was scared that she would be
    arrested. However, two or three weeks later, she saw the place where she had been robbed in the
    newspaper, and she then went to the Tennessee Bureau of Investigation’s (TBI) office and told them
    what had happened to her. She stated that she was not under the influence of drugs or alcohol on the
    day of this incident.
    On cross-examination, D. L. testified that when she knelt on the mattress at Cahaba Lane,
    she intended to perform oral sex on the defendant. She stated that everything was fine until the
    defendant jerked her up and tied her hands behind her back. She said that as the defendant pushed
    her up the hill, he had one hand on the back of her neck and one hand holding her hands behind her
    back. After unsuccessfully trying to run away from the defendant, she told him that she saw a car
    and that they would be discovered. At that point, she asked the defendant to untie her, which he did,
    and then the defendant told her to put on her shirt. She then asked the defendant to drive her back
    to the Circle-In, to which he responded that he would drop her off on Magnolia Avenue. She stated
    that she never had sex with the defendant and that she thought that the defendant was trying to take
    back the fifty dollars he had given her but mistakenly took the money from the wrong sock. She said
    that the defendant never hit her and that she never saw the defendant with a weapon. D. L. stated
    that she continued to prostitute herself after this incident.
    Knox County Sheriff’s Detective Michael Grissom testified that during his investigation of
    the defendant’s cases, D. L. gave him a license plate number. As a result of checking the license
    plate number through the Records Division, he went to the house of Frank Huskey, the defendant’s
    father, in Pigeon Forge, Tennessee. When he arrived, he saw a 1983 Buick LeSabre with a license
    plate number of VLZ-894. On cross-examination, Detective Grissom stated that information
    concerning his department’s investigation of events on Cahaba Lane would not have appeared in the
    newspaper until October 20, 1992.
    A. D. testified that on October 5, 1992, around 5:00 to 5:30 a.m., she was working as a
    prostitute on Magnolia Avenue when the defendant, who was wearing a beige work uniform, drove
    into the KFC parking lot in a small, beige truck. When she approached the defendant’s truck, he
    offered her fifty dollars to go to a location that was farther away than where she normally went. The
    defendant told her it was a secluded area near a church. The defendant did not say what sexual act
    he wanted for the fifty dollars. After talking to the defendant for some time, she agreed to go with
    him, feeling comfortable with him because he knew people she knew.
    A. D. testified that they had a friendly conversation on the drive to Cahaba Lane, a place
    where she had never been. The defendant parked the truck and came to the passenger’s door. He
    opened the door, hit her in the face, grabbed her hair, and pulled her out of the truck. The defendant
    pulled her toward the woods, and she struggled and begged him not to take her into the woods. The
    defendant told her there was a mattress in the woods, to which she responded that she would do
    -17-
    whatever he wanted outside the woods. The defendant eventually agreed and told her to remove her
    clothes, which she did. The defendant stood over her, took a knife out of his pocket, called her
    derogatory names, and said, “I will cut your throat if you don’t do what I tell you to.” The defendant
    forced her to perform oral sex and vaginally raped her, although he did not ejaculate. The defendant
    said that he was going to take her to the mattress, and she again begged him not to, at which point
    he forced her to perform oral sex until he ejaculated. As the defendant was fastening his pants, she
    asked him to take her back to Magnolia Avenue, to which the defendant responded that he would
    not because she would jump out at a red light and scream rape. She asked again, explaining that she
    did not know where she was, and the defendant told her to get dressed and he would take her.
    However, as she was getting dressed, the defendant got in his truck and left. She said that when the
    defendant left, it was daylight.
    A. D. testified that she walked toward Asheville Highway. She was crying, her hair was wet,
    and she had mud all over her. A woman in a car stopped, and she asked the woman for a ride home.
    The woman refused but called the police to help her. The parties stipulated that a telephone call was
    made from telephone number 524-5499 at 8:02 a.m., on October 5, 1992, regarding A. D. to the 9-1-
    1 authority in Knox County. She continued walking until she reached a gas station. While
    telephoning a friend, she saw police officers, but she did not ask them for help because she was on
    parole. She stated that she reported the rapes to the police two or three weeks later, after she saw
    a picture of Cahaba Lane while watching the news on television. A. D. identified the defendant as
    the person who raped her.
    A. D. testified that at the time of trial, she was in jail because she had violated her parole.
    She had been on parole three times, and each time she had violated the terms of her parole by using
    cocaine. She stated that she had her senses when she encountered the defendant the morning of
    October 5, 1992, although she admitted that she had used cocaine earlier in the morning around
    midnight.
    On cross-examination, A. D. testified that she was not friends with the other victims but that
    they did help each other survive on the streets. When she approached the defendant, she was hoping
    to get paid for having sex with him. Although her usual practice was to receive payment in advance,
    the defendant did not pay her before she got into his truck. She stated that the knife with which the
    defendant threatened her was a pocketknife and that the defendant never opened the blade. She said
    that the defendant never bound her. When questioned about whether not getting paid after having
    sex angered her, she stated, “Usually, if you don’t get paid, and then you have sex, then it is forced
    sex.” She stated that sometimes dates were rough with her.
    A. D. testified that in October 1992, she was using about two hundred dollars worth of
    cocaine per day. She admitted that she used cocaine about five hours before she met the defendant
    but stated that cocaine did not affect her ability to remember what happened to her. She said that
    after being raped by the defendant, she was concerned for her safety, but she acknowledged that she
    asked the defendant for a ride back to Magnolia Avenue, approximately a fifteen minute drive,
    because she did not know where she was.
    -18-
    A. D. testified that she did not report the rapes on October 5, 1992, and that she did not go
    to the hospital or see a doctor on that date. She said that no one from the sheriff’s department ever
    asked for the clothing that she was wearing when she was raped. She said that on October 26, 1992,
    the police came to the Circle-In, and she told Detective Tommy Stiles that a man had taken her to
    Cahaba Lane and raped her a few weeks earlier. Later that night, she went to the Knox County
    Sheriff’s Department and talked to Dan Stewart and Mike Upchurch. When they asked her if she
    would testify before the grand jury regarding what the defendant did to her, she asked “Would it help
    a friend?”
    A. D. testified that she and the other victims met with the district attorney before testifying
    at the April 16, 1996 hearing. She said that the district attorney talked to each victim individually
    and that they did not discuss the facts of the cases. She stated that there was a chart regarding all of
    the cases but that she did not see it.
    A. D. testified that in November 1988, she was indicted for eleven counts of drug-related
    offenses. She said that she received an effective sentence of eight years for agreeing to plead guilty
    to possession of cocaine with intent to sell, possession of marijuana, possession of diazepam with
    intent to sell, possession of methyprylon with intent to sell, and possession of glutethimide with
    intent to sell. She stated that she was not a drug dealer but was living with one at that time and that
    she pled guilty on the advice of her attorney. A. D. acknowledged that a statement she made to the
    Community Alternatives to Prison Program (CAPP) regarding the convictions provided,
    I was told to plead guilty of the current offense. I was staying at
    a friend’s house . . . . I did not know he had coke and pot in his
    house, but I did know about the Valium and other pills. On the
    sale and delivery charges, I did those. I sold an eight-ball to an
    undercover agent and about an ounce of pot. I was selling for
    money.
    She testified that she did not remember what she told the people at CAPP but that she sold the drugs
    for a friend, reiterating that she was not a drug dealer.
    A. D. testified that she was released from jail on November 5, 1995, but that she was arrested
    on April 26, 1996. She said that she entered a plea bargain and that she hoped to receive help from
    the state regarding her parole violation. She admitted that the district attorney sent a letter to the
    parole board asking them to consider her drug problem when determining whether to revoke her
    parole. On redirect examination, A. D. testified that the district attorney was not at her last parole
    board hearing and that she did not know that he was going to write a letter on her behalf.
    The defendant’s first witness was Knox County Sheriff’s Detective Michael Freeman, who
    testified that as part of the investigation of the incidents that occurred at Cahaba Lane, he went to
    Teague’s Statuary in Sevier County, Tennessee on October 23, 1992, to recover employment records
    regarding the defendant, including his time cards. According to the time cards, on Monday, October
    -19-
    5, 1992, the defendant clocked in at 7:58 a.m., clocked out at 12:11 p.m., and then back in at 1:08
    p.m. On Tuesday, September 22, 1992, the defendant clocked in at 7:52 a.m., clocked out at 11:56
    a.m., back in at 12:55 p.m., and then out at 4:43 p.m. He stated that to drive from Teague’s to
    Cahaba Lane would take about fifty minutes to one hour.
    On cross-examination, Detective Freeman testified that on November 2, 1992, he took a
    statement from D. C., in which she described what the defendant had done to her and that she
    identified the defendant from a photograph array. He said that when he was at Teague’s Statuary,
    he saw a reddish color rope that was “twine-like” but thicker. He stated that the amount of time it
    would take to drive from Teague’s Statuary to Cahaba Lane would depend upon how fast the person
    drove and the traffic conditions. He said that if the defendant left work at 4:43 p.m. on September
    22, 1992, then he should have arrived in Knoxville approximately one hour later.
    On redirect examination, Detective Freeman testified that if D. C. described the twine that
    was used on her as brown and smaller than a pen, then it would not have been the same rope that he
    saw at the Teague’s Statuary. On recross-examination, he stated that there were other colors of twine
    at Teague’s.
    James Wesley Sanderson testified that he acquired Teague’s Statuary on September 1, 1992.
    He said that to drive from Knoxville to Teague’s Statuary involved traveling through or around
    Gatlinburg, Pigeon Forge, and the Great Smokey Mountain National Park. He said that the traffic
    in this area was hectic, especially during the tourist season, including October. He said that the twine
    that Detective Freeman saw was in a shed behind his property and that he did not use twine in
    conducting his business. He stated that he normally arrived at work between 7:45 and 8:00 a.m. and
    would see the defendant. He said that if the defendant had come to work with mud on his clothes,
    he would have noticed.
    On cross-examination, Mr. Sanderson stated that because of the nature of the defendant’s job,
    the defendant would have been greasy and would have had cement on him by the end of each day.
    He said that the shed behind his property was about one hundred yards from the statuary.
    James David Gill, a librarian and records custodian for the Knoxville News Sentinel, testified
    that the paper reported that sunrise on October 5, 1992, occurred at 7:34 a.m. He stated that the
    newspaper’s first article regarding the investigations of the Cahaba Lane incidents occurred on
    October 21, 1992.
    Dr. Paul Kaufman was qualified as an expert about to how alcohol and drugs affect a
    person’s perception of and ability to recall events. He testified that he reviewed records pertaining
    to D. C. dated November 19, 1992, and referring to her past drug usage. He stated that D. C. had
    a serious, extensive drug abuse problem in the early 1990's, using cocaine, Dilaudid, Demerol, and
    alcohol in staggeringly-high doses. He said that a person abusing drugs at D. C.’s level would have
    a substantially impaired memory, judgment, and ability to recall and restate events that had
    -20-
    happened. He also stated that people with serious drug problems tend to lie to maintain their
    lifestyle.
    Dr. Kaufman testified that he had not interviewed A. D. Defense counsel provided Dr.
    Kaufman with a hypothetical in which he described a person that used two hundred dollars of
    cocaine per day, used acid, injected Demerol, and drank alcohol excessively. Dr. Kaufman stated
    that assuming the facts in the hypothetical were true, the person had a serious drug dependency and
    would have characteristics similar to the ones he described relative to D. C.
    The jury convicted the defendant of three counts of aggravated rape and one count of
    aggravated robbery for the offenses against D. C. It convicted him of two counts of rape and one
    count of robbery for the offenses against G. T. It convicted him of two counts of rape and one count
    of aggravated kidnapping with regard to A. D. The jury deadlocked on all counts relating to D. L.
    I. CONSOLIDATION
    The defendant contends that the trial court erred in consolidating the four rape cases, arguing
    that the state’s motion to consolidate was untimely, that the offenses were not part of a common
    scheme or plan, and that evidence of each offense would not have been admissible in the trials of the
    other offenses. The state contends that the trial court properly consolidated the cases.
    On March 21, 1996, the state moved to consolidate the presentments relating to D. C., A. D.,
    D. L., and G. T. pursuant to Rules 8(b) and 13(a), Tenn. R. Crim. P. The defendant opposed this
    motion, which had the same effect as asking for a severance under Rule 14(b)(1), Tenn. R. Crim. P.
    See Spicer v. State, 
    12 S.W.3d 438
    , 444 (Tenn. 2000). Thus, consolidation was proper only if a
    severance was not required under Rule 14(b)(1), which states,
    If two or more offenses have been joined or consolidated pursuant
    to Rule 8(b), the defendant shall have a right to a severance of the
    offenses unless the offenses are part of a common scheme or plan
    and the evidence of one would be admissible upon the trial of the
    others.
    Because the trial court’s decision regarding consolidation is determined from the evidence presented
    at the hearing, “appellate courts should usually only look to that evidence, along with the trial court’s
    findings of fact and conclusions of law, to determine whether the trial court abused its discretion by
    improperly joining the offenses.” Spicer, 12 S.W.3d at 445.
    At the consolidation hearing on April 15 and 16, 1996, all four victims testified about their
    encounters with the defendant. The victims’ testimony was substantially similar to their testimony
    at trial. Testimony particularly relevant to the issue of consolidation included the following: D. C.
    testified that in the first or second week of August 1991, she was twenty-five years old and working
    as a prostitute when the defendant picked her up on the corner of Central Avenue and Magnolia
    -21-
    Avenue around 6:30 or 7:00 p.m. As the defendant drove away, he pulled out a pistol. During the
    drive, he told her that she could jump out of the truck because she was going to die anyway. The
    defendant drove to a barn near the zoo, where he then raped her. The defendant pulled her hair, hit
    her, and choked her during the episode. The defendant tied her hands together with rope at one point
    and called her derogatory names throughout the encounter. She said that it was not common for
    dates to call her derogatory names. The defendant also told her that he was going “to kill all you
    pretty whores” and “all you bitches.”
    A. D. testified that in the first week of October 1992, she was twenty-five years old and
    working as a prostitute when the defendant approached her around 5:30 a.m. She was on Magnolia
    Avenue, and the defendant suggested that they go to Cahaba Lane, offering her fifty dollars, which
    was more than she usually made. She stated that the defendant mentioned people she knew, which
    made her more comfortable about going with the defendant. Once at Cahaba Lane, the defendant
    hit her and called her derogatory names. The defendant threatened to kill her, stating that he had a
    knife, although she said she never saw a knife. She stated that it was not common for dates to hit
    her or to call her derogatory names, although she said that it sometimes happened. She said that the
    defendant did not tie her up with rope.
    D. L. testified that in September 1992, she was nineteen years old and working as a prostitute
    when the defendant picked her up at the Circle Inn around 1:00 p.m. The defendant offered to pay
    her fifty dollars if she performed oral sex, for which she normally charged twenty-five dollars. The
    defendant told her he wanted to go where he took P. J., who was someone she knew. She accepted
    the defendant’s offer, and then he drove to Cahaba Lane. During the encounter, the defendant tied
    her up with rope, choked her, and threatened to kill her, stating that he hated all prostitutes. She did
    not remember if the defendant used profanity.
    G. T. testified that in February 1992, she was twenty-five years old and working as a
    prostitute when the defendant picked her up on the Gay Street viaduct around 8:00 or 8:30 a.m. She
    suggested that they go to Cahaba Lane, and the defendant drove there without her giving him
    directions. She stated that the defendant tied her hands together with rope and attempted to rape her
    anally. He then grabbed her by her hair and forced her to perform fellatio on him. He also attempted
    to have vaginal intercourse with her. During the rapes, the defendant threatened to shoot her,
    although she did not see a gun. She stated that she had never been tied up before and that it was
    unusual for dates to hit her, although it happened “at times.” She also said that dates did not usually
    curse her.
    Based upon the testimony of these four victims, the trial court found that there was a
    common scheme or plan and that the evidence in each case would be admissible in the other cases
    if they were to be tried separately. Regarding the common scheme or plan, the trial court stated,
    These are the things that struck me about the testimony: First of
    all, the time frame. The time frame we have here are offenses
    -22-
    occurring between August of 1991 and October 1992, a period of,
    approximately, fourteen months. . . .
    The cases, of course, speak to time frames. I recall time
    frames of nineteen months and greater periods of time than this
    in the cases where consolidation was granted. But, in any event,
    it is a fourteen-month time frame that we are dealing with here.
    In each case, we have a young, white female prostitute
    between the ages of eighteen and twenty-two years old, who were
    all picked up either on or adjacent to Magnolia Avenue or on the
    Gay Street viaduct, . . . approximately a quarter mile from
    Magnolia Avenue, all within, I would estimate, a one-mile radius
    of one another within the downtown area of Knoxville,
    Tennessee.
    Of course, three of these victims were taken to Cahaba
    Lane. One of them was taken to the Chilhowee Park area, zoo
    area, general area around the zoo, or the animal barns out there.
    In each case – or in many of the cases – again now these
    next remarks that I address, I would point out that these did not
    necessarily happen in all four cases, but they happened in a
    minimum of two, sometimes in three, sometimes in four of the
    cases.
    The testimony of these victims was that Mr. Huskey used
    profanity, and a great deal was made about this. Particularly, he
    used the phrase “bitch” and “whore” and “slut” and made
    references to prostitutes on a number of occasions with a number
    of these different victims.
    We talked about that a good deal, and the testimony was
    that this was not common. Despite what some people might
    think, that the use of profanity and the use of derogatory
    comments to prostitutes engaged in their profession or on “dates”
    is not a common thing for them to experience.
    Further, there was physical violence in virtually every case
    – in all cases – and threatened violence either with a weapon or
    the threatened use of a weapon with virtually all of these victims.
    The defendant pulled the hair of three of the four victims. His
    nature was abusive.
    -23-
    A particularly interesting aspect, I thought, was the
    characteristic – personal characteristic that, if the victim cried or
    begged, this would anger the perpetrator, and he would react by
    either physically assaulting and/or threatening to physically
    assault the victim, if they engaged in that kind of conduct.
    The type of sex acts. Oral sex in each case, the attempted
    and/or accomplished vaginal sex; the attempted or accomplished
    anal sex of these individuals. Three of the four were left at the
    scene of the crime; one was returned to town. He robbed some of
    these victims . . . at least, in two of the cases. . . .
    There was the force – the commonality of the forced
    removal of clothing of all these victims, again something that you
    would think not uncommon. But the testimony that was elicited
    was that it was somewhat uncommon; that many times clothing
    is not removed to accomplish the sex act.
    The practice of tying these victims up. He tied three of the
    four victims up during the perpetration of the crime.
    Again, with some of these victims he put them at ease by
    mentioning other prostitutes that the victims knew, in an effort to
    give them a sense of security, so that they would be at ease, in
    terms of going with him on a date – a prostitute date.
    Also, in a couple of the cases, he increased the price that
    would normally be demanded for the type of service, in an effort
    to convince the prostitutes – these victims – that they should go
    to a location that they would not otherwise have agreed to go to.
    Like I say, there are some differences here. These things
    that I have mentioned certainly don’t apply in each and every
    case. Some of them do; many of them don’t apply in every case.
    The time of day, for instance, was different. The exact sexual
    acts. There was some differences. There is no question that there
    are some differences, but I don’t think that the case law requires
    a finding of identical acts throughout the course.
    The question is whether or not the similarities outweigh the
    differences and lead to the conclusion that the defendant was the
    individual who committed the offenses. I think, when you
    examine all the facts in these cases and look at the overall picture,
    -24-
    which I think you are required to do by the case law, that the
    manner and method – the acts of the perpetrator provide a
    commonality in these cases that runs throughout the cases.
    The trial court also analyzed whether the evidence of each case would be admissible in trials of the
    others using Rule 404(b), Tenn. R. Evid., stating that one of the exceptions to the general rule
    prohibiting evidence of other crimes is identifying the defendant as the perpetrator based upon the
    fact that the acts are part of a common scheme or plan. The court stated that it then considered,
    pursuant to Rule 404(b), whether the probative value of the evidence of the other crimes or wrongs
    was outweighed by the danger of unfair prejudice. In its ruling regarding the admissibility of the
    evidence of the other offenses, the trial court stated that the “probative value of the evidence
    outweighs any unfair prejudice; or to say it another way, the probative value is not outweighed by
    the unfair prejudice, and the evidence in these cases is so related that the proof of one tends to
    establish the proof of the other.”
    The defendant first contends that the state’s March 21, 1996 consolidation motion was
    untimely, arguing that the motion violated Rule II of the Knox County Criminal Court Local Rules
    of Practice, which provides that pretrial motions be filed no later than thirty-one days after
    arraignment. The state contends that the motion was filed timely pursuant to Rule 12(b)(5), Tenn.
    R. Crim. P., and that the local rule relied upon by the defendant is applied with flexibility, does not
    preclude a court from considering motions after the operative date, and does not provide any remedy
    for a violation.
    Rule 12(b)(5), Tenn. R. Crim. P., provides that requests for consolidation must be made
    “prior to trial,” which has been interpreted to mean “sometime earlier than ‘the day of the trial when
    the jury is waiting in the hall.’” Spicer, 12 S.W.3d at 444 n.6 (quoting State v. Hamilton, 
    628 S.W.2d 742
    , 744 (Tenn. Crim. App. 1981)). In the present case, the state filed its motion for
    consolidation almost two months before trial. Thus, the state correctly argues that it complied with
    Rule 12(b)(5). However, the defendant asserts that the state failed to comply with Rule II of the
    Knox County Criminal Court Local Rules of Practice, which states in pertinent part,
    Time for Filing Pretrial Motions. All pre-trial motions made
    pursuant to Rule 12(b) and Rule 21 Tenn. R. Crim. P. must be
    filed and served no later than 31 days after arraignment.
    Obviously, the state did not comply with this rule.
    The state argues that the rule is applied flexibly and does not preclude a court from
    considering motions after the operative date. It states that nearly all of the defendant’s pretrial
    motions were filed after the time allowed by the local rule. We note that on one occasion during
    pretrial motion hearings, the trial court commented, in response to an argument by the defendant
    concerning the local rules, “What you are urging this court to do at this time is to enforce local rules
    that are not uniformly enforced in this court or in any other court. Both sides in this litigation have
    -25-
    violated the local rules on a number of occasions, continue to do so. . . . I am going to rule on this
    motion on its merits.” Furthermore, we note that Rule XI of the Knox County Criminal Court Local
    Rules of Practice provides that the “Court may modify or abstain, in its discretion, from applying
    any of the foregoing rules when to follow the rules would be unfair or would work any injustice.”
    Considering the trial court’s comments regarding the local rules and the fact that almost every
    motion, both from the state and from the defendant, was filed after the thirty-one day deadline, the
    trial court must have opted to exercise its discretion by not applying Rule II. Accordingly, the state’s
    motion to consolidate was not untimely due to violating the local rule.
    The defendant next argues that the trial court erred in consolidating the indictments because
    the offenses were not parts of a common scheme or plan. In Tennessee, there are three categories
    of common scheme or plan evidence:
    (1) offenses that reveal a distinctive design or are so similar as to
    constitute “signature” crimes;
    (2) offenses that are part of a larger, continuing plan or
    conspiracy; and
    (3) offenses that are all part of the same criminal transaction.
    State v. Moore, 
    6 S.W.3d 235
    , 240 & n.7 (Tenn. 1999) (noting that common scheme or plan
    evidence for consolidation or severance purposes is the same as common scheme or plan evidence
    for evidentiary purposes). At the motion hearing, the parties and the trial court focused on the first
    category. On appeal, the state also asserts that the victims’ testimony establishes a larger, continuing
    plan to terrorize prostitutes.
    For the offenses to reveal a distinct design, the “modus operandi employed must be so unique
    and distinctive as to be like a signature.” Moore, 6 S.W.3d at 240 (quoting State v. Carter, 
    714 S.W.2d 241
    , 245 (Tenn. Crim. App. 1986)). Although the offenses do not have to be identical in
    every respect, a common scheme or plan is not found merely because there was evidence that the
    defendant committed the multiple offenses or because the similarities of the offenses outweigh the
    differences. Id. at 240-41. “Rather, the trial court must find that a distinct design or unique method
    was used in committing the offenses.” Id. at 241. The method of perpetrating the crimes must
    employ “‘such unusual particularities’” that a reasonable person could believe it unlikely that
    different people were using this method. Id. at 240 (quoting Harris v. State, 
    189 Tenn. 635
    , 644, 
    227 S.W.2d 8
    , 11 (1950)).
    In this case, the trial court stated, “The question is whether or not the similarities outweigh
    the differences and lead to the conclusion that the defendant was the individual who committed the
    offenses.” As noted above, our supreme court in Moore stated that this was not the proper test to
    determine whether multiple offenses reveal a distinct design. The trial court did not specifically find
    -26-
    that a distinct design or unique method was used in committing the crimes. Thus, we consider
    whether the evidence establishes the use of a distinct design or unique method.
    First, we do not believe that the trial court’s piecemeal approach to considering the
    similarities of the offenses was appropriate. See, e.g., Shirley, 6 S.W.3d at 249. In other words, we
    do not believe a trial court can use events that happened in some of the cases to support
    consolidation of all of the cases. Id. (noting, for example, the fact that the perpetrator wore a green
    army jacket in two robberies and a black shirt and grey sweatshirt in the other two did not support
    the presence of a distinct design). With this in mind, we note that the similarities found in all four
    cases include that the defendant picked up young, white female prostitutes in the same area; that the
    defendant treated them violently, which A. D. and G. T. testified was not common for dates to do;
    and that the defendant threatened to kill the victims. Also, D. C. and A. D. testified that the
    defendant called them derogatory names. G. T.’s testimony at the consolidation hearing implies that
    the defendant called her derogatory names. This implication is confirmed by her trial testimony.
    We note that although D. L. said at the hearing that she could not remember if the defendant used
    profanity, she testified at trial that the defendant called her “bitch.” Regardless, we do not believe
    that these similarities establish a distinct design or unique method in committing the offenses relative
    to all four victims.
    However, we believe that additional similarities in D. L.’s, A. D.’s, and G. T.’s cases
    establish that the crimes relative to these victims were committed with a distinct design or unique
    method. First, these crimes occurred in February, September, and October 1992, shrinking the time
    period in which the crimes were committed. Moreover, and more importantly, although all four
    victims were hired for sex and voluntarily got into the defendant’s car, D. L., A. D., and G. T. had
    pleasant drives with the defendant, who drove them to the same, remote location, the dead end area
    of Cahaba Lane, where he then attacked them. We believe that this method – “hiring” young, female
    prostitutes from the same area and driving them, under the pretense that they would perform sex for
    money, to a specific, remote area, where the defendant could then attack them without the risk of
    detection – is sufficiently unique to establish a common scheme or plan.
    We note that another panel of this court has determined that similarities in the victims, the
    location, the timing, and the means by which the perpetrator committed the crimes established a
    distinct design. State v. Marcus Fitzgerald, No. W2000-02669-CCA-R3-CD, Shelby County, slip
    op. at 5 (Tenn. Crim. App. Jan. 15, 2002). In Fitzgerald, both victims were African-American
    females who lived in the same neighborhood and knew the defendant as “Bubba.” The offenses,
    aggravated rapes, occurred in different abandoned houses on the same street and within twenty-four
    hours of each other. The perpetrator, who was undisguised, had brief conversations with the victims
    before each offense. He then grabbed the victims by the neck from behind and dragged them into
    the vacant houses. Although only one victim saw the defendant with a knife, he threatened both
    victims with a knife and both were released after the offense. In the present case with respect to D.
    L., A. D., and G. T., the defendant chose similar victims from the same area and took them to the
    same, remote location. Although the offenses occurred over seven months, the undisguised
    defendant “hired” each victim to provide sex for money and had pleasant drives with each to Cahaba
    -27-
    Lane. Once there, the defendant hit or choked the victims or pulled their hair, threatened to kill
    them, and called them derogatory names. As in Fitzgerald, the crimes against D. L., A. D., and G.
    T. reveal a distinctive design.
    In contrast, when D. C. got into the defendant’s car, the defendant pulled out a gun and then
    drove erratically, not stopping for red lights, to a barn at the zoo. Although the defendant threatened
    the other victims with the use a weapon, he did not display a weapon to any of the other victims and
    did not threaten them until he had reached his isolated destination. Thus, the offenses against D. C.
    were accomplished differently than the offenses in the other cases. Accordingly, we conclude that
    the trial court abused its discretion in consolidating D. C.’s case with the other three cases under the
    distinct design category of common scheme or plan evidence.
    The state contends on appeal that the offenses fall within the second category of common
    scheme or plan – the larger, continuing plan or conspiracy category – and argues that the defendant’s
    threats to kill all prostitutes combined with the abusive nature of the offenses reveal a larger,
    continuing plan to terrorize prostitutes. With respect to this contention, we note that the defendant
    told D. L. that he hated all prostitutes and that he was going to kill her. He told D. C. that he was
    going “to kill all you pretty whores” and “all you bitches.” D. C. and D. L. testified that the
    defendant tied their wrists together with rope, which was not common for dates to do. All four
    victims testified that the defendant treated them violently, threatened to kill them, and called them
    derogatory names. The state argues that the defendant used violence in perpetrating the offenses in
    order to frighten the victims, who were willing to have sex with him without force. It maintains that
    the defendant committed all of the offenses in order to promote his goal of terrorizing prostitutes.
    “The larger, continuing plan category encompasses groups or sequences of crimes committed
    in order to achieve a common ultimate goal or purpose.” State v. Hallock, 
    875 S.W.2d 285
    , 290
    (Tenn. Crim. App. 1993); Neil P. Cohen et al., Tennessee Law of Evidence § 404[12][c], at 4-93 (4th
    ed. 2000) (“The unifying concept of crimes admitted under this theory is not their high degree of
    similarity but the common goal or purpose toward which each crime is directed.”). This theory was
    not argued at the hearing, and the defendant’s reply brief addresses the state’s argument by merely
    stating that it was rejected in State v. Rickman, 
    876 S.W.2d 824
     (Tenn. 1994). We disagree with
    the defendant’s interpretation of Rickman, in which our supreme court held that there was no sex
    crimes exception to the general rule that evidence of other crimes is not admissible in criminal
    prosecutions. Id. at 829. Rickman does not involve, or mention, common scheme or plan evidence.
    Thus, Rickman did not reject the state’s argument that the defendant’s larger, continuing plan to
    terrorize prostitutes established a common scheme or plan.
    On the other hand, case law reveals that the larger, continuing plan category is difficult to
    separate from the distinct design category, especially in the area of sex crimes. This court has
    rejected the contention that sex crimes against different victims in the same household can be
    consolidated based upon a common goal of achieving sexual gratification. Hallock, 875 S.W.2d at
    290. Hallock provides the following example to illustrate the fallacy in classifying such crimes as
    a larger, continuing plan: “X is on trial for three counts of burglary, each involving a different
    -28-
    building, a different form of entry, and a different day. His overall purpose, however, was to acquire
    money for college. Clearly, without more, X is entitled to severance under Rule 14(b)(1).” Id. at
    290; see also State v. Adams, 
    859 S.W.2d 359
    , 362 (Tenn. Crim. App. 1992) (holding that a shared
    motivation is insufficient to prove a common scheme or plan even when the offenses share some
    similarities). Despite defining the larger, continuing plan category as focusing on the perpetrator’s
    purpose in committing the crimes, this example in Hallock reveals that, at least when evidence of
    the other crime is being offered to prove identity, a distinctive design is required. The fact that a
    defendant has a common goal in committing crimes does not mean that proof of the individual,
    disparate crimes will reveal his identity. This conclusion is supported by the holding in State v.
    Ronald Prentice, cited by the defendant as supplemental authority, in which this court concluded that
    a common motive to terrorize the victim, the defendant’s estranged wife, was insufficient to show
    a common scheme or plan when the assaults were otherwise unrelated in time, location, and
    character. No. M2000-02937-CCA-R3, Davidson County, slip op. at 4 (Tenn. Crim. App. Dec. 28,
    2001).
    Our review of Tennessee cases in which the larger, continuing plan was the category of
    common scheme or plan also supports our conclusion that only the signature crimes category can
    be used when the basis for 404(b) admissibility is identity. In the wake of Hallock and Adams, the
    larger, continuing plan category has typically been applied to cases involving crime sprees, when
    the defendant commits several crimes close in time to each other. See, e.g., State v. Hall, 
    976 S.W.2d 121
    , 146 (Tenn. 1998) (appendix) (holding the burglaries, larcenies, and murders committed
    by the defendants during the week following their escape from a Kentucky prison were part of a
    larger plan to flee the country and the Kentucky authorities); State v. Joe N. Anderson, Jr., No.
    E1998-00378-CCA-R3-CD, Hamilton County (Tenn. Crim. App. Dec. 9, 1999), app. denied (Tenn.
    Sept. 11, 2000) (concluding that the perpetrators had a larger goal to rob and murder after they
    attempted to rob and then shot the first victim at his home then killed a sleeping truck driver in the
    early morning of the same day). In those cases that mention identity as one of the bases for 404(b)
    admissibility, it is not proof of the other crime itself which provides evidence of identity but
    evidence found at the other crime scene that tends to connect the defendant to other crimes in the
    scheme. See, e.g. Hall, 976 S.W.2d at 146 (appendix) (discussing that evidence found at some of
    the crime scenes linked the defendants to other crimes in the spree); Joe N. Anderson, Jr., slip op.
    at 8 n.3 (noting that the evidence of the other crime was relevant to identity because proof that the
    defendant fired the gun at the victim in the first crime tended to establish that he was the shooter in
    the second crime). Additionally, our supreme court has observed that identity is the most frequent
    basis for using evidence of a distinctive design. Moore, 6 S.W.3d at 239; Shirley, 6 S.W.3d at 248.
    Based upon Hallock and its progeny along with our supreme court’s current trend to disfavor
    the consolidation of cases, we do not believe that a generalized goal to terrorize prostitutes occurring
    over a fourteen-month period provides a sufficient basis to consolidate D. C.’s case with the others.
    As discussed above, the similarities in D. C.’s case do not amount to a signature crime. We do not
    believe that a generalized goal to terrorize prostitutes can establish the identity of the defendant as
    -29-
    the perpetrator in D. C.’s case, especially given the differences in location and abduction in her case.
    Thus, the trial court erroneously found D. C.’s case to be part of a common scheme or plan.
    We next address whether evidence of each offense would have been admissible in the trials
    of the others if they had not been joined. We first consider the admissibility of the other crimes
    evidence as it relates to D. L., A. D., and G. T. The primary issue in a severance case under Rule
    14(b)(1), Tenn. R. Crim. P., is “whether evidence of one offense would be admissible in the trial of
    the other if the two offenses remained severed.” Spicer, 12 S.W.3d at 445 (noting that in its most
    basic sense, whether offenses should be tried separately is “really a question of evidentiary
    relevance”); Moore, 6 S.W.3d at 239. The evidentiary rule at issue is Rule 404(b), Tenn. R. Evid.,
    which excludes evidence of other crimes, wrongs, or acts committed by the defendant when offered
    only to show propensity to commit those crimes, wrongs, or acts. However, Rule 404(b) does not
    bar such evidence when offered at trial to prove another relevant issue such as to show motive of the
    defendant, intent of the defendant, identity of the defendant, absence of mistake or accident if that
    is a defense, or “a common scheme or plan for commission of two or more crimes so related to each
    other that proof of one tends to establish the other.” Collard v. State, 
    526 S.W.2d 112
    , 114 (Tenn.
    1975). However, our supreme court has noted that admission of common scheme or plan evidence
    has expanded by circular argument in that the evidence is often considered relevant and admitted
    “merely because it is evidence of a common scheme or plan,” and it has concluded that admission
    of common scheme or plan evidence is proper only when introduced to show motive, identity, intent,
    absence of a mistake or accident if that is a defense, or some other relevant issue. Moore, 6 S.W.3d
    at 239 n.5.
    The state contends that evidence of each offense would have been admissible in the trials of
    the others because the evidence established identity, intent, and motive. We agree that the other
    crimes evidence would have been admissible to establish identity because of the unique method in
    which the defendant committed the crimes against D. L., A. D., and G. T. The defendant asserts that
    the other crimes evidence would not have been admissible in the trials of the other cases because
    each victim identified the defendant as the perpetrator. See Moore, 6 S.W.3d at 239 (holding that
    consolidation was improper because the evidence of the other crimes was not relevant to any issue
    at trial, noting that identity of the perpetrator was not an issue). In this case, however, identity was
    an issue. Simply because the state had other evidence – victim identification – to indicate that the
    defendant was the perpetrator does not mean that identity was not a material issue.
    At trial, the defendant, as could be anticipated from his cross-examination of the victims at
    the consolidation hearing, vigorously cross-examined the victims, impeaching their testimony and
    arguing to the jury that they could not be believed. Moreover, the defendant argued relative to each
    victim that he was not the perpetrator of the offenses. Indeed, the defendant requested that the jury
    be instructed regarding identification. The instruction submitted by the defendant, which the trial
    court used, began, “One of the issues in this case is the identification of the defendant as the person
    who committed the crime.” Accordingly, we conclude that the other crimes evidence was relevant
    to establish identity relative to offenses committed against D. L., A. D., and G. T. However, because
    of the factual differences in D. C.’s case, we cannot conclude that the evidence of the offenses
    -30-
    against her were admissible in the trials of the others to establish identity or for any other reason.
    Likewise, the evidence of the offenses against the other three victims would have been inadmissible
    in a separate trial of the offenses against D. C.
    The defendant next argues that the trial court erred in finding that the probative value of the
    other crimes evidence outweighed the danger of unfair prejudice. Factors to consider in determining
    the evidence’s probative value include “the prosecution’s need for the evidence, the likelihood the
    defendant committed the other crimes, and the degree of its relevance. The similarity of the acts
    makes the probative value particularly significant.” State v. Edwards, 
    868 S.W.2d 682
    , 691 (Tenn.
    Crim. App. 1993). In this case, the evidence was important to establish identity. Little or no
    physical evidence of the offenses existed, and the victims’ identifications were subject to attack, as
    demonstrated by the defendant’s cross-examination of the victims at the hearing. Also, the evidence
    presented at the hearing indicated that it was likely that the defendant committed the offenses.
    Finally, the similarity of the offenses adds to the probative value. We hold that the probative value
    of admitting the evidence of the other offenses was significant.
    We note that the other crimes evidence, though probative, is certainly prejudicial. However,
    the test requires balancing probative value with the danger of unfair prejudice. See State v. DuBose,
    
    953 S.W.2d 649
    , 654-55 (Tenn. 1997). “Because the test of Rule 404(b) is one of balance, when
    evidence of prior acts is highly probative of a material issue at trial, the chance of unfair prejudice
    to the defendant is correspondingly diminished.” State v. Mallard, 
    40 S.W.3d 473
    , 488 (Tenn.
    2001). In this respect, we believe that the other crimes evidence in this case was highly probative
    of identity, and we cannot say that the danger of unfair prejudice outweighed its value. Accordingly,
    we do not believe that the trial court abused its discretion in admitting such evidence. In summary,
    we conclude that the state’s motion was timely, the offenses relative to D. L., A. D., and G. T. were
    parts of a common scheme or plan, and the evidence of each of these offenses would have been
    admissible in the trials of the others. We hold that the defendant’s offenses relative to D. L., A. D.,
    and G. T. were properly consolidated.
    We must now determine whether the error in consolidating D. C.’s case more probably than
    not affected the judgments. See T.R.A.P. 36(b). Whether to grant a severance under Rule 14(b)(1),
    Tenn. R. Crim. P., is primarily an evidentiary question, and thus, “the effect of a denial of that right
    is weighed by the same standard as other non-constitutional evidentiary errors: the defendant must
    show that the error probably affected the judgment before reversal is appropriate.” Moore, 6 S.W.3d
    at 242. Our supreme court has stated that in most severance cases, “‘the line between harmless and
    prejudicial error is in direct proportion to the degree . . . by which proof exceeds the standard
    required to convict.’” Spicer, 12 S.W.3d at 447-48 (quoting Delk v. State, 
    590 S.W.2d 435
    , 442
    (Tenn. 1979)).
    In this case, the evidence supporting the convictions consisted almost exclusively of the
    testimony of the victims. While this evidence was sufficient to support the convictions, it did not
    provide overwhelming proof of the defendant’s guilt. See Spicer 12 S.W.3d at 448. With respect
    to the perceived propensity to commit similar crimes, we recognize that although a different method
    -31-
    was used in committing the offenses against D. C., the fact that the defendant was accused of
    committing the same types of crimes against all of the victims created the strong potential for the
    jury to consider the other crimes evidence improperly as propensity evidence. The unfair prejudice
    resulting from the jury learning of the crimes against the other victims outweighs any probative
    value that could be derived from the evidence in the other cases. Thus, the consolidation of D. C.’s
    case with those of the other victims probably affected the judgments in D. C.’s case.
    On the other hand, with regard to the offenses against the other three victims, we do not
    believe that the defendant was harmed by the evidence relating to D. C.’s case. Importantly, the jury
    properly heard evidence relating to three victims, and thus, we believe it unlikely that the evidence
    relating to a fourth victim would sway the jury based upon the defendant’s propensity to commit the
    crimes. The defendant was not harmed by the erroneous consolidation of D. C.’s case with the other
    three cases.
    ISSUES RELATING TO BOTH CASES
    II. SPEEDY TRIAL
    The defendant contends that he was denied speedy trials in all of his cases, including both
    the first and the consolidated rape cases. We note that much of defendant’s argument concerns the
    denial of his right to a speedy trial in the homicide cases, which are not before this court in this
    appeal. We address below whether the defendant was denied his right to a speedy trial in both rape
    cases.
    Pursuant to the Sixth Amendment of the United States Constitution and to article 1, section
    9 of the Tennessee Constitution, a criminal defendant has the right to a speedy trial. See also Tenn.
    Code Ann. § 40-14-101; Tenn. R. Crim. P. 48(b). The right is meant to protect the defendant
    “against oppressive pre-trial incarceration, the anxiety and concern due to unresolved criminal
    charges, and the risk that evidence will be lost or memories diminished.” State v. Utley, 
    956 S.W.2d 489
    , 492 (Tenn. 1997). In Barker v. Wingo, 
    407 U.S. 514
    , 530, 
    92 S. Ct. 2182
    , 2192 (1972), the
    Supreme Court devised a balancing test to determine speedy trial issues and identified the following
    factors for consideration: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's
    assertion of his right to a speedy trial, and (4) the prejudice to the defendant. None of the four
    factors are “either a necessary or sufficient condition to the finding of a deprivation of the right of
    speedy trial.” Id. at 533, 92 S. Ct. at 2193. Rather, the factors must be “considered together with
    such other circumstances as may be relevant.” Id. In State v. Bishop, 
    493 S.W.2d 81
     (Tenn. 1973),
    our supreme court implicitly adopted the Barker balancing test for our state constitutional and
    statutory rights to a speedy trial. The remedy for the denial of a speedy trial is dismissal of the
    charges. Strunk v. United States, 
    412 U.S. 434
    , 439, 
    93 S. Ct. 2260
    , 2269 (1973).
    On April 29, 1996, well after the first rape trial and three weeks before the consolidated rape
    trial, the defendant moved to dismiss the charges against him for the denial of a speedy trial.
    Although the motion only stated that the defendant was seeking dismissal of the homicide cases, the
    -32-
    defendant argued that demanding a speedy trial in the homicide cases necessarily meant that he was
    demanding one in the rape cases. On May 9, 1996, the trial court considered this argument and
    stated that the defendant’s motion to dismiss would apply to all of his cases. On December 12, 1998,
    the trial court denied the defendant’s motion to dismiss. We note, however, that the court’s order,
    on its face, relates to the homicide cases. Regardless, the defendant’s failure to secure a ruling on
    his motion to dismiss as it relates to the rape cases does not waive the issue on appeal. Indeed, even
    the failure to demand a speedy trial does not constitute a waiver of the issue. See Barker, 407 U.S.
    at 528, 92 S. Ct. at 2191; Bishop, 493 S.W.2d at 84. Thus, we consider whether the defendant was
    denied a speedy trial.
    The defendant argues that the length of delay between charges being filed and his trials was
    unreasonable, that the state caused the delay, that he timely demanded a speedy trial, and that he was
    prejudiced as a result of the delay. The state argues that the defendant specifically stated that his
    demand for a speedy trial related only to his pending homicide cases and that, regardless, the
    defendant was the cause of the delay and was not prejudiced.
    The first factor, the length of the delay, is a threshold factor, serving as the triggering
    mechanism that will necessitate consideration of the other three factors. Barker, 407 U.S. at 530,
    92 S. Ct. at 2192. If the length of the delay is not presumptively prejudicial, then the other factors
    need not be considered. Id. Although what constitutes an ordinary length of delay depends on the
    complexity of the case, delays of one year or longer are usually enough to trigger the Barker inquiry.
    See Doggett v. United States, 
    505 U.S. 647
    , 652 n.1, 
    112 S. Ct. 2686
    , 2691 n.1 (1992); see also State
    v. Turnbill, 
    640 S.W.2d 40
    , 42 (Tenn. Crim. App. 1982) (concluding that a thirteen-month delay was
    presumptively prejudicial so as to apply the balancing test). In this case, the first rape trial occurred
    in October 1995, three years after the defendant was charged, and the consolidated rape trial occurred
    in May 1996, three years and seven months after he was charged. Although these cases were
    complex, the lengths of these delays trigger consideration of the other Barker factors.
    In State v. Wood, 
    924 S.W.2d 342
    , 346-47 (Tenn. 1996), our supreme court stated that the
    second Barker factor, the reason for the delay, generally falls into one of four categories:
    (1) intentional delay to gain a tactical advantage over the defense or delay designed
    to harass the defendant; (2) bureaucratic indifference or negligence; (3) delay
    necessary to the fair and effective prosecution of the case; and (4) delay caused, or
    acquiesced in, by the defense. The first type, intentional delay, is weighed heavily
    against the State. The second type, negligent delay, is also weighed against the State
    although not as heavily as deliberate delay. The third type of delay is, by definition,
    justifiable and is not weighed against either party. The fourth type of delay, which
    is caused or acquiesced in by the defendant, is weighed against the defendant.
    Not surprisingly, the defendant and the state differ greatly in their views regarding the reasons for
    the delay – the defendant asserting that the state was to blame for the delay and the state asserting
    that the delay was caused entirely by the defendant.
    -33-
    Our review of the record reveals that the reasons for the delays fall into categories (3) and
    (4). Most of the delay can be attributed to the complexity of the defendant’s cases, which required
    extensive discovery and resulted in a prolific motion practice, largely by the defendant. We note that
    the trial court granted the defendant numerous extensions of time to file motions. Likewise, the
    court granted the state extensions of time to respond to the defendant’s motions, to which the
    defendant did not object. We also note that the first rape trial was continued twice at the defendant’s
    request. We conclude that much of the delay associated with both rape trials was necessary to the
    fair and effective prosecution of the cases. This delay is justifiable and not weighed against either
    party.
    The state argues that the defendant caused the delays by requesting continuances and
    extensions of time and by his prolific motion practice. Given the number of charges and the
    complexity of the cases, we do not believe that the defendant’s actions were unreasonable. However,
    the defendant’s demand for a speedy trial, or lack thereof, indicates that the defendant acquiesced
    in the delay. The defendant did not demand a speedy trial until January 1995, and at that time he
    requested a speedy trial in the homicide cases. Importantly, he specifically stated at that time and
    even as late as January 16, 1996, that he was not requesting a speedy trial in the rape cases. Indeed,
    the defendant’s argument was based upon his wanting the homicide cases tried before the rape cases
    to avoid any resulting conviction in the rape cases being used as an aggravating factor in sentencing
    for the homicide cases. On April 29, 1996, the defendant moved to dismiss all of the charges against
    him for the denial of a speedy trial. At this time, he argued, and the court accepted, that his motion
    applied to the rape cases as well as the homicide cases. In summary, the defendant specifically
    stated that he was not demanding a speedy trial in the rape cases, and he did not change this position
    until after the first rape trial and only weeks before the consolidated rape trial. We conclude that the
    defendant acquiesced in the delay, which weighs against the defendant.
    Furthermore, we note that the record does not reveal that the state acted intentionally to gain
    a tactical advantage or to harass the defendant. While the extended time that it took for the state to
    respond to the defendant’s motions could be, in some cases, characterized as neglect or bureaucratic
    indifference, we believe that in these cases, in light of the number and content of the defendant’s
    motions, the amount of time taken to respond was not unreasonable. Thus, regarding the second
    Barker factor, we conclude that most of the delay was necessary to the fair adjudication of the cases.
    Additionally, we conclude that the defendant acquiesced in the delay. Accordingly, this factor
    weighs against the defendant.
    The third Barker factor is the defendant’s assertion of his right to a speedy trial. While
    failure to demand a speedy trial does not result in a waiver of the right, “evidence that the defendant
    did not want a speedy trial would never warrant the finding of a constitutional violation except in
    ‘extraordinary circumstances.’” State v. Baker, 
    614 S.W.2d 352
    , 355 (Tenn. 1981); see also Barker,
    407 U.S. at 532, 92 S. Ct. at 2193 (“We emphasize that failure to assert the [speedy trial] right will
    make it difficult for a defendant to prove that he was denied a speedy trial.”). In this case, the
    defendant first orally demanded a speedy trial on January 12, 1995, about nine months before the
    first rape trial. However, that request was specifically for the homicide charges against the
    -34-
    defendant. In fact, defense counsel stated that “we are not requesting a speedy trial in the other
    cases.” The defendant’s written demand for a speedy trial, filed February 13, 1995, also referred
    only to the homicide cases. The defendant restated this position on January 16, 1996. On that date,
    the parties were discussing the setting of trial dates, and when the state asked the defendant whether
    he was waiving his right to a speedy trial, the following exchange occurred:
    THE COURT:                   Do you waive            speedy trial,
    gentlemen?
    ....
    [DEFENSE COUNSEL]:           On the February case, yeah. It
    doesn’t make any difference. We
    still have the same trial schedule.
    [DISTRICT ATTORNEY]: Now – but, now, they’ve got a
    speedy trial motion down, you see.
    [DEFENSE COUNSEL]:           On the death case only. The only
    case we have a motion for a speedy
    trial is on the death case.
    The defendant’s first demand for a speedy trial relative to both rape cases occurred April 29, 1996,
    well after the first rape trial and about three weeks before the consolidated rape trial. On this date,
    the defendant filed a motion to dismiss for the denial of a speedy trial in all of his cases. In that
    motion, he argued that because the state had elected to try the rape cases before the homicide cases,
    his demand for a speedy trial in the homicide cases was also a demand for a speedy trial in the rape
    cases. We note that this argument was contrary to his January 12, 1995 oral demand and his
    February 13, 1995 written demand. In light of the timing of and circumstances surrounding the
    defendant’s assertion of his right to a speedy trial, we conclude that this factor weighs against the
    defendant.
    The fourth factor, whether the defendant has been prejudiced by the delay, is the most
    important factor. See Baker, 614 S.W.2d at 355-56. Prejudice “should be assessed in the light of
    the interests . . . the speedy trial right was designed to protect,” which are (1) to prevent oppressive
    pretrial confinement, (2) to minimize the defendant's anxiety and concern that accompanies
    prosecution, and (3) to limit the possibility of the defense being impaired – the last being considered
    the most serious interest because of its potential to skew the fairness of the entire system. Barker,
    407 U.S. at 532, 92 S. Ct. at 2193.
    The defendant does not fully explain how he was prejudiced by the delay in his brief, stating
    that the “prejudice is so enormous it cannot be adequately summarized.” Nonetheless, his brief
    contains numerous complaints regarding prejudice, and he also incorporates by reference lists from
    his speedy trial motion and amendments to that motion. In all, the defendant lists eighty-seven items
    -35-
    of prejudice. We note that many of these items relate to alleged prejudice resulting from delays that
    occurred after one or both of the rape trials. With respect to this appeal, the defendant’s complaints
    regarding prejudice include the following:
    (1) He was denied full and fair consideration of his pretrial
    motions in the consolidated rape case. Motion hearings
    were pushed back to the eve of trial, and then after the trial
    court granted consolidation a few weeks before the trial, the
    trial court and state rushed to trial (i.e., insisted on keeping
    the set trial date), preventing full and fair hearings on
    numerous of his motions.
    (2)   He suffered from health problems resulting from living in
    an unsuitable jail cell and being subjected to an unhealthy
    diet.
    (3)   Prosecutors changed and as a result, procedures changed
    during the course of the proceedings.
    (4)   Lifestyles of witnesses changed to the detriment of the
    defense and to the benefit of the state.
    (5)   The proceedings were affected because parties became
    involved in political campaigns.
    (6)   The law regarding peremptory challenges changed to the
    defendant’s detriment.
    (7)   There were changes to the defendant’s detriment in the
    judicial philosophy and public opinion regarding crime.
    (8)   His insanity defense was stricken in the rape cases because
    he did not receive the report from the state’s expert on
    insanity until December 22, 1998.
    (9)   Witnesses could not be found or could not remember
    important information.
    (10) Scientific evidence that was available earlier was no longer
    available.
    (11) 911 tape recordings were destroyed.
    -36-
    (12) The defendant could not reconstruct his whereabouts to
    present an alibi offense because he did not receive the bill
    of particulars until March 1996.
    (13) The Knox County Sheriff’s office misplaced materials.
    (14) The trial court’s and counsel’s memory of rulings were
    inconsistent and unreliable.
    (15) Defense counsel was frustrated, discredited, and ridiculed
    for insisting that the defendant’s motions be heard.
    (16) Exculpatory, favorable, and impeaching evidence was
    withheld.
    These assertions do not prove that the defendant was prejudiced. While some of the assertions, if
    taken as true, would be prejudicial, the assertions are broad and conclusory. They do not describe
    which witnesses, what evidence, what materials, etcetera form the bases of the complaints.
    Furthermore, it is not clear how some assertions, even if true, prejudiced the defendant. For
    example, the defendant does not specify how political campaigns or changes in defense funding
    prejudiced him. In any event, after reviewing the record and considering the defendant’s assertions
    as they relate to the interests the speedy trial right is designed to protect, we conclude that the
    defendant suffered minimal prejudice as a result of the delay in his trials.
    In this case, the defendant was incarcerated while awaiting trial. However, the defendant had
    a multitude of serious charges pending against him, including charges for four homicides. Because
    of these charges, the defendant would have been incarcerated at least for some of the time period in
    question, reducing the prejudice resulting from his incarceration. See United States v. Grimmond,
    
    137 F.3d 823
    , 830 (4th Cir. 1998). Also, while we may assume that the defendant experienced
    anxiety and had concerns regarding the rape cases while awaiting trial, his actions demonstrate that
    his main concern was the pending homicide cases, in which the state had provided notice that it
    would be seeking the death penalty. See id. In light of these circumstances and the fact that the
    defendant did not take steps to expedite his rape trials, we conclude that the prejudice resulting from
    the defendant’s incarceration and from his anxiety and concern relating to the rape charges is
    minimal.
    The final interest of the defendant that we consider regarding prejudice is whether his defense
    was impaired by the delay. While the defendant has offered many broad, conclusory allegations of
    prejudice, he has not shown particularized prejudice. We note that courts have recognized that
    particularized proof regarding prejudice to one’s defense is difficult to prove. See Wood, 924
    S.W.2d at 348 (stating that it “is often extremely difficult . . . for a defendant to demonstrate
    specifically how the delay has impaired his ability to defend himself”). Accordingly, “affirmative
    proof of particularized prejudice is not essential to every speedy trial claim.” Doggett, 505 U.S. at
    -37-
    655, 112 S. Ct. at 2692. Moreover, “the presumption that pretrial delay has prejudiced the accused
    intensifies over time.” Id. In this case, we presume that the delay impaired the defendant’s ability
    to present a defense. However, this presumption of prejudice is weakened by the defendant’s
    acquiescence in the delay. See Wood, 924 S.W.2d at 349. In summary, although the defendant was
    prejudiced by the delay, the prejudice was minimal in light of the defendant’s other pending charges
    and the fact that he acquiesced in the delay.
    Summarizing the Barker factors, we conclude that the defendant suffered minimal prejudice.
    However, most of the delay was necessary to the fair and effective prosecution of the cases.
    Moreover, the defendant acquiesced in the delay, and he specifically stated that he was not
    demanding a speedy trial in the rape cases, a position he did not change until after the first rape trial
    and just before the consolidated rape trial. Upon balancing the factors, we conclude that the
    defendant was not denied a speedy trial in either the first rape case or in the consolidated rape case.
    III. UNLAWFUL ARREST, SEARCH, AND SEIZURE
    The defendant contends that the trial court erred in refusing to suppress evidence seized from
    his bedroom and his statements, which were gained as a result of his unlawful arrest. The
    defendant’s contentions with regard to his arrest fall into four general categories: he argues that (1)
    his thirty-day jail sentence for solicitation of prostitution was illegal, (2) the capias upon which he
    was arrested is invalid, (3) the Knox County detectives lacked jurisdiction to arrest him in Sevier
    County upon a capias addressed to the Knoxville Chief of Police, and (4) the officers lacked
    probable cause to arrest him in the absence of the capias. He also contends that the trial court should
    have suppressed evidence gained in the search of his residence almost three hours after his arrest
    because the search warrant was invalid and no exception to the warrant requirement applied.
    The state contends that the defendant has waived the claims relating to the validity of his
    arrest, including that of an invalid capias, by pleading guilty to the charge of soliciting prostitution
    and failing to appeal or collaterally attack that conviction. It also argues summarily that the capias
    was valid and that the defendant was arrested by a Sevier County deputy. It asserts that the
    defendant has failed to show that a procedural defect in his arrest requires the suppression of his
    statements. Finally, it contends that even if the arrest had been unlawful, neither the evidence
    gathered at the defendant’s home nor his statements were introduced in the rape cases and that,
    therefore, he can prove no prejudice resulting from the arrest. With regard to the search of the
    defendant’s residence, the state argues that the trial court properly admitted the evidence because it
    was discovered in a search incident to arrest and was in the officers’ plain view.
    We conclude that the issues of the defendant’s arrest and search are moot with regard to the
    cases that we are affirming because none of the evidence gained from the arrest or search was
    improperly used in either rape trial. In the event of a retrial of D. C.’s case, we hold that the capias
    upon which the officers based the arrest was void. We affirm the trial court’s ruling that the search
    warrant was invalid due to its failure to list the executing officer.
    -38-
    We begin by reviewing the facts surrounding the defendant’s arrest and the search of his
    home on October 21, 1992. At a February 7, 1996 suppression hearing, Knox County Sheriff’s
    Detective Michael Upchurch testified that he was in charge of investigating the homicides, which
    occurred near Cahaba Lane in Knoxville in October 1992. His investigation caused him to focus on
    the defendant as a suspect, and he checked for outstanding warrants against the defendant. He found
    an outstanding capias for failure to appear in Knoxville Municipal Court on a charge of solicitation
    of prostitution. Knowing that the defendant had been employed at Teagues Statuary in Sevier
    County, Detective Upchurch asked the Sevier County Sheriff’s Department to have an officer meet
    him and Detectives Darrell Johnson, Dan Stewart, Mike Freeman, and Mike Grissom to arrest the
    defendant on the capias and for questioning about the homicides. They first went to the statuary and
    then proceeded to the defendant’s parents’ mobile home, where Detective Upchurch saw a truck
    matching a description given in conjunction with his investigation parked in the driveway.
    Detective Upchurch testified that at 9:30 p.m., he and Officer Jerry Huskey of the Sevier
    County Sheriff’s Department went to the front door of the mobile home and that the other officers
    went to the back door. Officer Huskey was in uniform and had parked his cruiser in front of the
    mobile home. The defendant’s mother answered the door, and he and Officer Huskey identified
    themselves. Detective Upchurch told her that he wanted to see the defendant, that a court had issued
    a capias for the defendant for failure to appear in court, and that they were taking the defendant into
    custody at that time. Mrs. Huskey told him that her husband and the defendant were in their beds
    and that she would get the defendant. She invited them inside. The defendant came into the living
    room and asked what they wanted. Detective Upchurch told him why they were there and that they
    wanted to talk to him. The defendant said, “Fine. I need to get my shoes.” Detective Upchurch told
    the defendant that he could get his shoes but that they would have to accompany him to his bedroom
    because he was in custody. The defendant agreed to this and walked ahead of them down the
    hallway.
    Detective Upchurch testified that while he and Detective Stewart were standing just inside
    the doorway of the defendant’s bedroom, he saw an orange hay-baling rope on the defendant’s floor.
    He recognized it as the type of rope used to bind the rape victims. As the defendant sat on his bed
    putting on his shoes, Detective Upchurch illuminated a dresser with his flashlight and saw a pair of
    women’s earrings and a necklace on the top. The day before, one of the homicide victims’
    boyfriends had told him that the victim had earrings in her purse. He did not confront the defendant
    with the rope and jewelry at this point. The defendant refused to sign a consent to search form and
    was then transported to the Sevier County Jail.
    Detective Upchurch testified that Detective Stewart remained at the defendant’s bedroom
    door to make sure that nothing was moved. The other detectives waited in their unmarked cars.
    Although the defendant’s father had given his consent to search the whole residence, the Assistant
    District Attorney advised him by telephone that he should get a search warrant for the defendant’s
    bedroom. The Sevier County Sheriff’s Office provided him with a search warrant form. He
    consulted with the Assistant District Attorney again and drafted the affidavit and warrant. He
    acknowledged that he was not familiar with Rule 41, Tenn. R. Crim. P., but that he had undergone
    -39-
    training relating to search warrants and was familiar with probable cause. Nevertheless, at the time
    of the hearing, he had written only a few search warrants. He admitted that the search warrant
    affidavit did not mention the jewelry that he had seen in the defendant’s room. He said that he noted
    the jewelry on the list of items for which he was searching because he had seen it in the room and
    knew it was there.
    Detective Upchurch testified that he told Officer Huskey that he needed to go to a judge or
    magistrate to get a search warrant signed, and Officer Huskey agreed to take him. He was taken to
    Bruce Baker, who was introduced as a Sevier County magistrate. He handed the warrant to Mr.
    Baker and asked if he needed to do anything else before Mr. Baker signed it. Mr. Baker signed the
    warrant, and Detective Upchurch made three copies. He gave one of the copies to Mr. Baker, and
    the other two copies were for the defendant and his father. Once he obtained the signed search
    warrant, he returned to the defendant’s parents’ home and conducted the search. When Detective
    Stewart picked up the earrings to bag them, Detective Upchurch saw a blonde hair entwined with
    the necklace and the earrings. In addition to the items found in the defendant’s bedroom, he found
    a knife on the bathroom sink. He said that the defendant’s parents never objected to the search of
    their mobile home, and the defendant never objected to the officers entering his bedroom at the time
    of his arrest.
    Detective Upchurch testified that the defendant arrived at the Knox County Jail at 4:00 a.m.
    on October 22. Detective Upchurch was not at municipal court when the defendant appeared and
    did not speak to anyone associated with that charge. He did not consider the defendant to be under
    arrest for the death of Patricia Rose Anderson until the Knox County Grand Jury returned an
    indictment for that charge.
    Jerry Huskey testified that on October 21, 1992, he was a patrolman with the Sevier County
    Sheriff’s Department, when Knox County officers asked him to help them in investigating the
    defendant. He confirmed the truth of his affidavit, which stated that the officers showed him a
    folded capias and told him that it was for the defendant, but said that he did not read it. He took
    them to the statuary and then to the Huskey residence. He thought that the defendant’s father invited
    them inside. The defendant was not wearing shoes when he first saw the defendant. He heard the
    detectives ask the defendant’s father if they could search the mobile home. The defendant’s father
    agreed to let them search but told them that they would have to ask the defendant about his room.
    The detectives asked the defendant if they could search his room. The defendant said they could not
    search his room, and they got a search warrant. He did not see the detectives violate the defendant’s
    rights, and he believed that they acted in a professional manner. He acknowledged that his report
    states that he transported the defendant to the Knox County line where the defendant was charged
    with homicide.
    Knox County Sheriff’s Detective Daniel Stewart testified that on October 21, 1992, he went
    to the defendant’s house with Detective Upchurch. When the defendant walked into his parents’
    living room, Detective Upchurch announced that the defendant would be taken into custody for
    failure to appear in court. Detective Stewart considered the defendant to be in custody at that point.
    -40-
    He said he accompanied the defendant to his bedroom for shoes or a shirt. He was standing either
    in the doorway or just inside the room, and Detective Upchurch stood beside him. He noticed a
    piece of orange baling twine on the floor by the bed. Detective Stewart said that a rhinestone
    necklace with a hair entangled in it and a pair of costume pearl earrings were found on a piece of
    furniture immediately on the left through the doorway, but he did not remember if he saw the jewelry
    when the defendant was getting his shoes or when they executed the search warrant. The top of the
    piece of furniture was cluttered, and the jewelry was either on top of or near the edge of some
    newspapers. When the defendant was taken to jail, Detective Stewart remained at the mobile home
    to ensure that the defendant’s bedroom was not disturbed. He did not search the room while the
    other officers were away. During that time, the defendant’s mother entered the room to turn off a
    light or radio, and as she left, the rope caught on her foot and was dragged a few inches.
    Jessie Huskey, the defendant’s mother, testified that she was awakened by knocking after
    9:00 p.m. on October 21, 1992. When she opened the door, men wearing police uniforms asked if
    her husband was there. She said that he was there and called for him. One of the men asked if the
    defendant was there. She said yes and knocked on the wall adjacent to the defendant’s bedroom.
    She did not ask the officers to come inside. The officers stood in the door until her husband arose.
    When the defendant entered the living room in his pajama bottoms, the officers walked over to him.
    At that point, she went to her bedroom to get a housecoat, and when she returned, the officers and
    the defendant were gone. She never heard the officers ask her husband for permission to search their
    home or say that they were there to arrest the defendant because he failed to appear for court. The
    defendant had previously told her that he went to court.
    Mrs. Huskey testified that she was frightened and nervous because the officers had taken the
    defendant. One officer remained standing at the defendant’s bedroom door. She denied offering a
    stool to the officer, who stood the entire time. The officer watched her go into the defendant’s
    bedroom and asked what she was going to do. She told him that she was going to turn the radio off,
    which she did and then left the room. She noted that a chest of drawers was built into the wall in the
    defendant’s bedroom and that one could not see the chest unless he or she stepped into the room.
    The officers returned and searched the trailer, but she did not hear her husband give them permission
    to search. She did not know what was in the defendant’s room because she never went in his room
    except to leave his clean laundry on the bed.
    Bruce Dale Baker testified that on October 21, 1992, he was a Sevier County Judicial
    Commissioner and issued his first search warrant, which authorized a search of the defendant’s
    residence. Detective Michael Upchurch told him that Detective Upchurch had arrested the defendant
    on a capias, which Commissioner Baker believed to be a state capias. He said he would have given
    more thought to the legality of the search warrant if he had known that it was a city rather than a state
    capias. The officers told him that they were arresting the defendant for murder but had taken him
    into custody on the capias because he was wanted in Knoxville on another charge. He read the
    affidavit written by Detective Upchurch and filled out the search warrant but overlooked the blank
    line for the executing officer’s name.
    -41-
    Phyllis Davis, secretary for the Knoxville Municipal Court judge, testified that she maintains
    the records for the municipal court. City judges serve four-year terms, and Judge John Rosson, Jr.,
    was the city judge in 1992. On June 12, 1992, the city judge issued a warrant for the defendant for
    solicitation for prostitution on that day. The defendant posted bond and was to appear for trial on
    June 16, 1992. The trial was continued to July 7, 1992, but the defendant failed to appear. On July
    7, the City of Knoxville issued a capias directing the Knoxville Chief of Police to bring the
    defendant before the City Court judge to answer a charge of failure to appear for a charge of
    solicitation of prostitution. She said that a capias does not expire and that it is given to the jail, the
    Police Department, and the Sheriff’s Department to keep on file. Also, the Sheriff’s Department can
    access any outstanding process by computer. She said that the capias does not require the Chief of
    Police to report back to the court.
    Ms. Davis testified that she learned the defendant had been arrested on the morning of
    October 22, 1992, but she did not recall knowing at that time that the police suspected he was the
    “Zoo Man.” The defendant was brought to municipal court around 10:00 a.m. Ms. Davis heard the
    judge explain the defendant’s rights to him. She did not recall the defendant asking any questions
    or stating that he understood his rights. He did not object to the legality of his arrest or ask for a
    lawyer. He did not appear to be intoxicated. The city warrant for solicitation of prostitution reflects
    that the defendant pled guilty and waived his right to an attorney. Special Judge Carlton Bryant,
    appointed by Judge Rosson as a substitute judge, signed the judgment portion of the warrant on
    October 22, 1992. Although the signature for the waiver of attorney reads “Kyle Huskey,” Ms.
    Davis was in the courtroom when the waiver was signed, and the defendant was the one who signed
    it. Apparently, no one noticed that the defendant had signed his name as “Kyle” or else the
    defendant would have been asked to reconsider his plea and sign again. A lot of defendants give
    aliases in municipal court, and the warrant gives the defendant’s name as “Thomas D. Husky
    (alias).” The defendant did not deny that he was Thomas D. Huskey.
    Carlton Bryant testified that in October 1992, he was an attorney in private practice and
    sometimes presided as a substitute city judge. Judge Rosson would ask him to serve in that capacity,
    and then either Judge Rosson or the clerk would administer an oath. He did not independently recall
    serving as a substitute judge in the defendant’s case, but he identified his signature on the city
    warrant, indicating that he accepted the defendant’s guilty plea on October 22, 1992. He would not
    sign a warrant without discussing the defendant’s rights with him or her and witnessing the
    defendant sign the warrant. If the defendant had said that he was intoxicated or did not know what
    he was doing, then he would not have accepted the plea. He typically makes an “X” to show
    defendants where to sign, and he noted that “Kyle Huskey” was signed by an “X.” He did not recall
    whether it was in fact the defendant who signed.
    Mr. Bryant testified that after the defendant pled guilty, he ordered the defendant to pay court
    costs and a fifty-dollar fine and to serve thirty days in jail. He admitted that he did not check the box
    requiring the defendant to serve thirty days in jail, but typically the clerk checks the boxes after he
    enters the fine and jail period. Ordinarily, a conviction for solicitation for prostitution in municipal
    court would result in a fine only. He sentenced the defendant to thirty days in jail based upon
    -42-
    something that KPD Officer Torres told him in open court before he accepted the guilty plea that
    made this case worse than the typical case. He gave the defendant the maximum sentence based
    upon the guilty plea and the facts given by the officer. No one, including the homicide detectives,
    had approached him, told him about the “Zoo Man,” or asked him to be particularly harsh on the
    defendant. This was not the only time he had sentenced a defendant to jail based upon the facts of
    a prostitution case.
    On April 1, 1996, the trial court denied the defendant’s motion to declare the arrest invalid
    and his motions to suppress the evidence gained from the search of his residence and his statements.
    Regarding the defendant’s arrest, the trial court found that the capias was “a valid capias issued by
    a duly-operating court; that it carried the force of law, and that Mr. Huskey could be arrested on that
    capias, as it stood in October 1992.” It found that the defendant was properly arrested in Sevier
    County based upon the Knoxville capias because a warrant or capias issued in one jurisdiction can
    be served in another. With regard to the search of the defendant’s residence, it found that the search
    warrant was invalid because it did not list the executing officer. Nevertheless, it found the search
    of the defendant’s bedroom to be incident to his arrest and that the items seized were in the officer’s
    plain view.
    A. Lack of Prejudice
    It is well-settled that a defendant enjoys “no constitutional immunity from an unlawful
    arrest.” State v. Dulsworth, 
    781 S.W.2d 277
    , 282 (Tenn. Crim. App. 1989). Instead, the fact of an
    unlawful arrest is relevant only if the state seeks to present evidence tainted by the arrest. Id. at 282-
    83; see also State ex rel. Wood v. Johnson, 
    216 Tenn. 531
    , 534-35, 
    393 S.W.2d 135
    , 136 (1965)
    (noting that even if evidence from the search of the petitioner or his room was illegally obtained, the
    petitioner’s trial was not tainted because none of the evidence was used). Furthermore, the remedy
    for an unconstitutional search is exclusion of the evidence obtained therefrom. See Murray v. United
    States, 
    487 U.S. 533
    , 536-37, 
    108 S. Ct. 2529
    , 2533 (1988) (holding that the exclusionary rule
    requires exclusion of tangible, testimonial, and derivative evidence acquired through an unlawful
    search); State v. Clark, 
    844 S.W.2d 597
    , 600 (Tenn. 1992). In the present case, the state did not use
    the rope or the jewelry discovered in the defendant’s bedroom in either of the rape trials, nor did it
    use the defendant’s statements, as we discuss in Issue IV. The record reveals that the only piece of
    evidence used at the rape trials and stemming from the arrest or search was a photograph of the
    defendant taken following his arrest.
    1. Photograph
    The defendant complains that in the first rape trial, the state used a photograph of him that
    was taken following his arrest. At the suppression hearing before the consolidated rape trial,
    Detective Upchurch testified that the defendant arrived at the Knox County Jail at 4:00 a.m. on
    October 22, 1992. The defendant introduced an October 22, 1992 arrest report from the Knox
    County Jail Intake Center, with a photocopy of the defendant’s photograph on the back. Phyllis
    Davis testified that the defendant pled guilty to solicitation of prostitution in municipal court around
    -43-
    10:00 a.m. on October 22, 1992. During the first rape trial, the victim identified the defendant as
    her attacker but testified that his appearance had changed since the time of the offenses when he had
    a beard and longer hair and was thinner. The state introduced the defendant’s photograph during the
    victim’s testimony relating to her identification of the defendant as her attacker to illustrate the way
    that the defendant looked at the time of the offenses. The victim testified that in October 1992, she
    went to the police station and picked the defendant’s picture out of a photograph array. The
    defendant cross-examined the victim about discrepancies between her initial descriptions of her
    attacker and the photograph of the defendant. On cross-examination, the victim agreed that
    Detective McCroskey showed her the defendant’s photograph on October 27, 1992.
    In Tennessee, a photograph of a defendant is admissible for purposes of identification even
    if taken following an illegal arrest. See State v. Miller, 
    608 S.W.2d 158
    , 160 (Tenn. Crim. App.
    1980). This is so because the identification of the defendant from his picture is not the fruit of the
    arrest. Id. “The basis of the identification is not the arrest but the witness’s perception of the
    accused during the crime. . . . The arrest merely provided the means for the confrontation with the
    victim . . . . The arrest contributed neither to the knowledge of the witness nor to the accuracy of her
    identification.” Id. Thus, under Tennessee case law, the defendant’s photograph, taken after his
    arrest and used by the victim to identify him as the perpetrator, was admissible to identify the
    defendant without regard to the legality of the arrest.
    We note, though, that the United States Supreme Court has suggested that a photograph taken
    as the result of an illegal detention may be inadmissible. See United States v. Crews, 
    445 U.S. 463
    ,
    
    100 S. Ct. 1244
     (1980). In Crews, the Court addressed the question of whether an in-court
    identification of the defendant by the victim is the product of an illegal arrest. In that case, several
    women were robbed at gunpoint in the women’s restroom on the grounds of the Washington
    Monument. Based upon the victims’ description of the perpetrator, officers saw the teenage
    defendant in the area, unsuccessfully attempted to photograph him at the scene, took him into
    custody for truancy, photographed him, and released him. The victims identified the defendant from
    a photograph array and again in a line-up. Finding that the police lacked probable cause to detain
    the defendant initially, the trial court suppressed the photograph and line-up identifications as
    products of the illegal detention but allowed the victims to identify the defendant at trial. The Court
    held that the in-court identifications of the defendant were not the products of his illegal arrest
    because (1) the victims were present to testify about the offenses, (2) the victims could reconstruct
    the crimes and their identification of the defendant from their own knowledge and recollection, and
    (3) the defendant was physically present. Id. at 471, 100 S. Ct. at 1250. The Court held that none
    of these three circumstances resulted from the exploitation of the Fourth Amendment. Id. In so
    holding, it noted that the parties conceded that the intervening photograph and line-up identifications
    were the product of the Fourth Amendment violation. It observed that in some circumstances, these
    intervening identifications could be so suggestive as to render the in-court identification unreliable
    and, therefore, inadmissible. Id. at 472, 100 S. Ct. at 1250. Based upon Crews, the photograph taken
    of the present defendant would be subject to this analysis, if the arrest was illegal.
    -44-
    Nevertheless, we believe that law enforcement would have inevitably obtained defendant’s
    photograph without regard to the legality of his arrest. Evidence obtained as the result of an illegal
    arrest is not subject to exclusion if it would have been inevitably discovered through lawful means.
    State v. Ensley, 
    956 S.W.2d 502
    , 511 (Tenn. Crim. App. 1996); see also Nix v. Williams, 
    467 U.S. 431
    , 444, 
    104 S. Ct. 2501
    , 2509 (1984). In the present case, the defendant arrived at the Knox
    County Jail at 4:00 a.m. on October 22, 1992, and his photograph was taken. Around 10:00 a.m.,
    the defendant was taken to municipal court and pled guilty to solicitation of prostitution. At that
    point, the defendant was legally detained pursuant to his conviction for the municipal offense, and
    any photograph taken following this conviction would not be subject to exclusion based upon the
    legality of his arrest. The victim was not shown the defendant’s photograph until October 27, 1992.
    Because it was inevitable that the police would acquire a photograph of the defendant, the
    exclusionary rule does not apply. See Howard v. State, 
    599 S.W.2d 280
    , 283-84 (Tenn. Crim. App.
    1980) (holding that a line-up identification of the defendant for the present offense did not have to
    be suppressed, even if the defendant had been illegally arrested on an unrelated charge, because the
    police would have inevitably discovered the defendant’s identity from descriptions and a license
    plate number given by eyewitnesses to the present offense).
    2. Mootness
    With the exception of the photograph discussed above, the state contends that none of the
    evidence flowing from the arrest or search was used at either rape trial. The defendant contends that
    in the first rape trial, the trial court admitted descriptions of a truck and license plate number
    discovered by officers illegally trespassing on his property to serve the capias. He claims that these
    descriptions matched another description given in the first rape trial. Unfortunately, the defendant
    fails to cite to the portions of the record where any of these descriptions were given or even to
    mention the witnesses who gave the description of a truck. The defendant does cite to a jury-out
    discussion during the consolidated rape trial for this contention, but this portion of the record does
    not contain a description of a truck. Our own review of the record in the first rape trial reveals that
    the victim, the sole witness for the state, testified that the defendant was driving a car. None of the
    detectives who participated in the defendant’s arrest and the search of his home on October 21, 1992,
    testified in the first rape trial. Other than the photograph discussed above, the defendant has failed
    to show that the state used any evidence resulting from his arrest or search in the first rape trial.
    The defendant contends that in the consolidated rape trial, Detective Upchurch testified
    regarding a car and its license plate, which were seen at the defendant’s residence at the time of his
    arrest. For this contention, the defendant refers us to Detective Upchurch’s testimony at the February
    7, 1996 suppression hearing. Detective Upchurch did not testify at the consolidated rape trial. We
    note that at the consolidated rape trial, Detective Michael Grissom testified that he went to the home
    of the defendant’s father after checking a license tag number provided by one of the victims in the
    consolidated rape trial. Detective Grissom stated that while there, he saw a 1983 Buick LeSabre with
    the license tag number VLZ-894. This testimony does not relate to or stem from evidence gathered
    as a result of the defendant’s arrest or the search of his home within a few hours of his arrest.
    -45-
    Regarding the illegal search issue, the defendant argues that in the consolidated rape trial, the
    trial court should have suppressed certain photographs of him, of certain vehicles, and of the rope.
    In support of this contention, he cites to a jury-out discussion regarding the admissibility of two
    photographs depicting twine found at two locations at Teagues Statuary, the defendant’s employer.
    The defendant does not explain and the cited discussion does not reveal how the photographs relate
    to evidence gained from the search of the defendant’s home. Instead, during the discussion, the trial
    court noted its previous ruling that the state could not introduce photographs of brown twine in the
    back of a pickup truck taken during the October 21, 1992 search. The court determined that the state
    was limited to the two photographs of the twine taken at Teagues Statuary. Although the detectives
    went to Teagues Statuary before going to the defendant’s home on the night of the arrest, the jury-out
    discussion reveals that the photographs in question were made at a different time. We fail to see how
    the passage to which the defendant has cited relates to this issue. Furthermore, we agree with the
    state that none of the evidence gained in the search of the defendant’s home was introduced in the
    rape trials.
    Finally, with regard to the search of his home, the defendant also challenges the admission
    of certain photographs, a necklace and earrings, and testimony regarding the rope found in his
    bedroom, which were introduced in his murder trial. As previously noted, the murder case is not a
    part of this appeal.
    The legality of the arrest and search is not in controversy in this appeal of the first rape trial
    and G. F.’s and A. D.’s cases because the resulting evidence was either not used or, in the case of
    the photograph, was properly used even if stemming from an illegal arrest. The issue is moot in
    these cases. See State ex rel. Lewis v. State, 
    208 Tenn. 534
    , 537-38, 
    347 S.W.2d 47
    , 48-49 (1961);
    State v. Doe, 
    813 S.W.2d 150
    , 152 (Tenn. Crim. App. 1991). On the other hand, the issue remains
    viable in D. C.’s case, which we are reversing due to its improper consolidation, because the state
    could attempt to use evidence stemming from the arrest or the search in the event that the case is
    retried. At the suppression hearing before the consolidated rape trial, Detective Upchurch testified
    that upon looking into the defendant’s bedroom, he saw a piece of orange hay-baling rope, which
    he recognized as the type of rope used to bind the rape victims. D. C. testified that the defendant
    bound her with rope, although she did not describe its color or size at either the consolidation hearing
    or at trial. In ruling upon the suppression issues, the trial court found that the detectives noticed a
    piece of rope on the defendant’s bedroom floor “that they suspected was the same type of string or
    twine that had been used to tie one or more of the victims that they were investigating – homicides
    that they were investigating in Knox County.” Although this finding suggests that the rope is
    relevant to the murder case rather than the rape cases, the state might be able to show that the rope
    is relevant to the retrial of D. C.’s case. In the event of a retrial of D. C.’s case, we will review the
    trial court’s rulings on the legality of the arrest and search in light of the defendant’s contentions.
    B. Collateral Attack
    The state contends that the defendant may not collaterally attack his conviction and sentence
    for solicitation of prostitution in this appeal. “The rule has been firmly established in Tennessee that
    -46-
    a facially valid, unreversed judgment in a court with jurisdiction over the subject matter and the
    person cannot be collaterally attacked in a subsequent proceeding except by the authorized routes
    of attack.” State v. McClintock, 
    732 S.W.2d 268
    , 271 (Tenn. 1987).
    In the present case, the Knoxville Municipal Court had jurisdiction over the defendant for
    the municipal offense of solicitation of prostitution occurring within the city. See Tenn. Code Ann.
    § 16-17-103 (providing that municipal court judges in home rule municipalities have “full power and
    authority to try and dispose of violations of municipal ordinances”); Knoxville, Tenn., Charter, art.
    V, § 503 (1982); see also Code of Ordinances, City of Knoxville, Tenn. §19-190(c) (1982)
    (prohibiting the patronizing of prostitution); State ex rel. Boone v. Torrence, 
    63 Tenn. App. 224
    ,
    242, 
    470 S.W.2d 356
    , 364 (1971) (noting that the “primary function of Corporation or Municipal
    Courts is enforcement of municipal ordinances”). Article V, section 503 of Knoxville’s city charter
    grants the municipal judge concurrent jurisdiction with the Knox County general sessions judges
    over violations of state criminal laws committed in the city and “exclusive power to impose fines
    for the breach of any city ordinance.” The defendant contends that his sentence was illegal because
    the municipal court lacked jurisdiction to sentence him to incarceration for the violation of a city
    ordinance.
    Initially, we note that the defendant failed to secure a ruling from the trial court on this issue
    before either of the rape trials. The defendant raised the issue of the municipal court’s jurisdiction
    to impose a jail sentence in a memorandum of law filed three months before the consolidated rape
    trial arguing that because the municipal court is not a constitutional court, it lacked jurisdiction to
    jail or arrest the defendant. He presented evidence regarding his thirty-day jail sentence for the
    solicitation conviction at the suppression hearing through the testimony of Carlton Bryant, the
    substitute municipal judge who accepted the defendant’s guilty plea. Although the trial court ruled
    that the capias was issued from a “duly-operating court,” it did not speak to the municipal court’s
    jurisdiction to sentence the defendant to incarceration.
    In any event, we note that the Knoxville City Code and Tenn. Code Ann. § 6-54-306 reveal
    that the municipal court had jurisdiction to impose the jail sentence. The state legislature has
    empowered home rule municipalities “to set maximum penalties of thirty days imprisonment and/or
    monetary penalties and forfeitures up to five hundred dollars ($500), or both, to cover administrative
    expenses incident to correction of municipal violations.” Tenn. Code Ann. § 6-54-306; see also City
    of Knoxville ex rel. Roach v. Dossett, 
    672 S.W.2d 193
    , 194 (Tenn. 1984) (noting that Knoxville is
    a home rule municipality). Section §19-190(c) of the Knoxville City Code, which prohibits the
    patronizing of prostitution, does not specify a penalty for the offense. See Code of Ordinances, City
    of Knoxville, Tenn. §19-190(c) (1982). Section 1-9 of the Knoxville City Code provides that if the
    penalty is not specified in the individual ordinance, the violation of the ordinance shall be punished
    as follows:
    Any person violating any of the provisions of this general penalty
    article shall be guilty of a misdemeanor, and conviction thereof
    shall result in the penalties of a monetary fine not to exceed fifty
    -47-
    dollars ($50.00) and the repayment of administrative costs
    incident to the correction of the municipal violation in an amount
    not to exceed five hundred dollars ($500.00) and/or by
    imprisonment not to exceed thirty (30) days, or both for each
    separate offense.
    Both section 6-54-306 of the state code and section 1-9 of the city code reflect that the municipal
    court has the power to impose a jail sentence.
    In contrast with the municipal court’s legislatively granted power to incarcerate, a defendant
    enjoys an inviolate constitutional right to a jury trial in Tennessee. Tenn. Const. art. I, § 6. This
    right to a jury trial does not extend to small or petty offenses, which are those offenses punished
    with a fine not to exceed fifty dollars and no term of confinement. State v. Dusina, 
    764 S.W.2d 766
    ,
    767 (Tenn. 1989). “For violation of general criminal statutes, . . . where a fine of more than $50.00
    or any confinement of the accused may be imposed, the right to jury trial under the Tennessee
    constitution is well-established.” Id. at 768. A municipal court has no power to empanel a jury.
    City of Chattanooga v. Davis, 
    54 S.W.3d 248
    , 267 (Tenn. 2001) (stating that “only courts of general
    jurisdiction have the power to empanel a jury to determine facts or to impose punishment”). The
    constitutional right to a jury trial limits, but does not eliminate, a municipal court’s ability to impose
    a sentence of incarceration. A defendant may waive his or her constitutional rights and plead guilty
    to an offense in municipal court. See, e.g., State ex rel. Newsom v. Biggers, 
    911 S.W.2d 715
    , 718-
    19 (Tenn. 1995) (holding that the defendant could not collaterally attack the city court’s judgment
    by arguing that the court lacked jurisdiction when the defendant had acquiesced to the court’s
    authority in pleading guilty to shoplifting). We conclude that once the constitutional bar to the jail
    sentence in the absence of a jury trial is removed by the defendant’s plea, the municipal court may
    impose such a sentence pursuant to its legislatively granted power.
    The record reveals that the defendant waived his right to a jury trial for the solicitation of
    prostitution offense. The city warrant in the present case contains the following, entitled “WAIVER
    AND PLEA”:
    I UNDERSTAND THAT I HAVE THE RIGHT TO BE TRIED
    IN COURT UPON AN INDICTMENT OR PRESENTMENT BY
    THE GRAND JURY. I ALSO HAVE THE RIGHT TO A
    TRIAL BY JURY. I VOLUNTARILY AND KNOWINGLY
    DESIRE TO WAIVE THESE RIGHTS AND TO BE TRIED IN
    THIS COURT ON THIS CASE BY THE CITY JUDGE WHO
    WILL DECIDE MY INNOCENCE OR GUILT AND SET THE
    SENTENCE IF FOUND GUILTY.
    The warrant also informs the defendant that he is waiving his right to counsel and his right to appeal.
    The written waiver of the right to counsel is necessary for the facial validity of the judgment because
    the United States Supreme Court has determined that in the context of using a prior conviction
    -48-
    against a defendant to show guilt or to enhance punishment, a record of conviction that fails to show
    the existence or waiver of counsel is presumptively void. State v. Tansil, 
    72 S.W.3d 665
    , 667 (Tenn.
    Crim. App. 2001); see Burgett v. Texas, 
    389 U.S. 109
    , 114-15, 
    88 S. Ct. 258
    , 261-62 (1967).
    Although the defendant signed the city warrant “Kyle Huskey,” the warrant authorizes the arrest of
    “Thomas D. Husky (alias).” Furthermore, Phyllis Davis, who was in the courtroom at the time the
    defendant pled guilty, testified that the defendant was the person who signed the warrant. She stated
    that the municipal judge explained the defendant’s rights to him and that the defendant did not ask
    any questions about his rights. Carlton Bryant testified that he would not have signed the city
    warrant if he had not discussed the defendant’s rights with him and witnessed the defendant sign the
    warrant. Thus, the defendant waived his right to a jury trial and agreed that the city judge would set
    his sentence.
    In summary, the Knoxville Municipal Court had jurisdiction over the defendant for violating
    the municipal offense of solicitation of prostitution. The defendant pled guilty and waived his
    constitutional right to a jury trial. In the absence of this constitutional bar, the municipal court was
    empowered to impose a jail sentence upon the defendant. The warrant contains the signed judgment
    of conviction for solicitation of prostitution. A warrant with the judgment entered thereon enjoys,
    “like any judgment, a presumption of regularity in the proceedings . . . upon becoming final.”
    McClintock, 732 S.W.2d at 270. Thus, we perceive no problem with the defendant’s conviction and
    sentence for solicitation of prostitution, and he may not collaterally attack the legality of his sentence
    for solicitation of prostitution in this appeal of his rape convictions.
    All of the defendant’s claims relating to his conviction for solicitation of prostitution,
    including his allegation that his statements resulted from his illegal confinement, amount to a
    collateral attack on his solicitation conviction. The defendant contends that the municipal court
    lacked authority to issue a capias for failure to appear and that his sentence was illegal because (1)
    the box on the warrant for his thirty-day jail sentence was not checked, (2) the substitute judge who
    accepted his guilty plea had not taken the constitutionally required oath of office, (3) a private
    attorney (the substitute judge) has no authority to sentence him to jail, and (4) the judge’s secretary,
    who has no authority to put him in jail, signed the mittimus. These claims, if meritorious, would
    only make the judgment for his conviction for solicitation of prostitution voidable rather than void.
    See id. at 271 (holding that a facially valid judgment issued by a court with jurisdiction cannot be
    attacked in a subsequent proceeding except by an authorize route of collateral attack such as a
    petition for post-conviction relief). Regarding the statements that he gave while confined, the
    defendant had been convicted of the municipal offense and was serving his sentence for solicitation
    of prostitution at the time he gave statements to law enforcement officers. Thus, the statements do
    not flow from his arrest. On the other hand, although the defendant may not attack the validity of
    his conviction for solicitation of prostitution, he can and does challenge the legality of his arrest as
    it relates to the suppression of the evidence gained as a result of that arrest, i.e., the rope. Thus, we
    do have cause to address the legality of the arrest.
    C. Validity of the Capias
    -49-
    The Knox County detectives arrested the defendant based upon an outstanding capias for his
    failure to appear in Knoxville Municipal Court. We begin by noting that “[u]nder our criminal
    procedure, a capias is a mesne or intermediate process having the sole purpose of securing the
    presence of the defendant.” Moore v. State, 578 S.W2d 78, 81 (Tenn. 1979).
    The defendant contends that the capias used to arrest him is invalid because it was not issued
    in the name of the State of Tennessee as required by the Tennessee Constitution and the Knoxville
    City Charter. “All writs and other process shall run in the name of the State of Tennessee and bear
    test and be signed by the respective clerks.” Tenn. Const. art. VI, § 12. This constitutional
    requirement “applies to all process, civil or criminal, issued by any court, or tribunal established by
    law having authority to issue process; to process issued under a valid corporation ordinance, or by-
    law, as much as to process from a court of record, or justice of the peace.” Mayor of Nashville v.
    Pearl, 
    30 Tenn. 249
    , 251 (1850) (holding that a distress warrant in the name of the Corporation of
    Nashville was properly quashed); see McLendon v. State, 
    92 Tenn. 520
    , 525, 
    22 S.W. 200
    , 202
    (1893) (holding that the criminal court’s order that the sheriff rearrest the defendant and confine him
    in the workhouse was facially void because it ran in the name of the criminal court rather than in the
    name of the state). Additionally, article V, section 503, of the Charter of the City of Knoxville states
    that all “process shall be issued in the name of the State of Tennessee, with proper designation
    thereon to show that the same are also issued under the authority of the City of Knoxville.” Process
    that does not properly run in the name of the state is void. See McClendon, 92 Tenn. at 525, 22 S.W.
    at 202.
    In the present case, the capias does not contain a reference to the State of Tennessee but,
    instead, is headed by the words “City of Knoxville.” The notice that the document runs in the name
    of the state may appear in the body of the document rather than the caption. City of Murfreesboro
    v. Bowles, 
    187 Tenn. 134
    , 137, 
    213 S.W.2d 35
    , 37 (1950). The present capias gives no indication
    that it runs in the name of the state anywhere in the document. For this reason, the capias is void.
    The defendant contends that in the absence of the capias, the record is devoid of probable
    cause that he failed to appear on his solicitation charge. The record does not reveal that the
    detectives had a valid basis upon which to arrest the defendant for his failure to appear aside from
    the capias. A misdemeanor arrest without a warrant may occur only for an offense committed or
    threatened to be committed in the officer’s presence. Tenn. Code Ann. § 40-7-103(a)(1). Here, no
    evidence exists that the Knox County detectives or the Sevier County officer witnessed the
    defendant’s failure to appear in municipal court. On the other hand, we note that the trial court’s
    erroneous finding that the capias was valid pretermitted any rulings on other legal bases for the
    arrest. Upon remand of D. C.’s case, the trial court must consider the legality of the arrest in light
    of our holding that the capias was void.
    The defendant also argues that the capias is invalid because: (1) it fails to state an offense
    since the city code contains no offense of failure to appear; (2) it was not a lawful process upon
    which he could be arrested; and (3) it does not state an expiration date and, being four months old,
    was stale. Although our holding that the capias is void eclipses these other challenges to its validity,
    -50-
    we will address them briefly in turn due to the possibility of an appeal on this issue. See Jacobs v.
    State, 
    224 Tenn. 106
    , 107, 
    450 S.W.2d 581
    , 581 (1970) (stating that the Court of Criminal Appeals
    may not pretermit duly raised issues).
    The defendant contends that the capias is void on its face for failing to charge an offense
    because the Knoxville City Code does not contain an offense of failure to appear. The present capias
    directs the Knoxville Chief of Police to bring the defendant before the city court “to answer a charge
    of the City of Knoxville exhibited against him by Failure to Appear, for a charge of Sol. for
    Prostitution . . . .” As discussed above, the Knoxville City Code does prohibit the solicitation of
    prostitution. See Code of Ordinances, City of Knoxville, Tenn. §19-190(c) (1982). Furthermore,
    a defendant’s failure to appear in municipal court is also a violation of the city code. See Code of
    Ordinances, City of Knoxville, Tenn. § 19-33(i) (providing that the intentional, knowing, or willful
    failure to appear in court on the date and time designated in one’s citation is a violation of the
    municipal code without regard to the disposition of the original charge). Thus, the present capias
    does state an offense.
    The defendant next contends that the capias was not a valid process in this state or in the
    City of Knoxville because the Knoxville City Charter does not provide for the arrest of persons who
    fail to appear in city court for charges of municipal offenses. He also argues that the capias cannot
    be construed as a subpoena for a witness because it was not issued by a judge or as an arrest warrant
    because it contains no affidavit of complaint or finding of probable cause. Although the Knoxville
    City Charter is silent regarding whether a defendant may be arrested for failure to appear, the
    Knoxville city code provides that if “the person cited [for committing a misdemeanor in the presence
    of an officer] fails to appear in court on the date and time specified . . ., the court shall issue a bench
    warrant for such person’s arrest.” Code of Ordinances, City of Knoxville, Tenn. § 19-33(f). An
    identical provision appears at Tenn. Code Ann. § 40-7-118(f). Thus, the city and state codes
    provide for the arrest of persons who fail to appear in court.
    We note that in the present case, the defendant was arrested upon a capias issued by the city
    court clerk rather than a bench warrant from the city court. The judge of a municipal court in a home
    rule municipality has “full power and authority to try and dispose of violations of municipal
    ordinances.” Tenn. Code Ann. § 16-1-101. The choice to use a capias, a warrant, or an attachment
    are all means by which a court can control the proceedings before it. See State v. Cazes, 
    875 S.W.2d 253
    , 260 (Tenn. 1994) (“It is well-established that a trial judge has broad discretion in controlling
    the course and conduct of the trial.”); State v. Bragan, 
    920 S.W.2d 227
    , 239 (Tenn. Crim. App. 1995)
    (noting that “the courts of this state have the inherent power to supervise and control their own
    proceedings”). On the other hand, the fact that the city court clerk rather than the municipal court
    judge issued the capias is significant. The city court clerk does not share the municipal court’s
    inherent power to control the proceedings before it. Although the rule for courts of record permits
    their clerks to issue a capias for failure to appear, we can locate no similar rule for a capias upon a
    failure to appear in municipal court. See Tenn. R. Crim. P. 9(e) (providing that the clerk of the
    criminal or circuit court may issue a capias when a defendant, who is a natural person, fails to appear
    -51-
    in response to a criminal summons). Thus, the present capias is also invalid because it was issued
    by the city court clerk rather than the city court judge.
    Finally, the defendant contends that the capias is invalid because it contains no time period
    for its return and was nearly four months old at the time of his arrest. In State v. Michael Laymance,
    No. 180, McMinn County (Tenn. Crim. App. July 17, 1990), the court addressed the question of
    whether a capias issued by the circuit court and directing that the defendant be arrested and brought
    before the court on a specific date to answer a contempt of court charge authorized his arrest six
    months later. Noting that little precedent exists regarding the expiration of a capias, the court
    deemed that a capias should not exist indefinitely but that “the safe and fair administration of justice”
    requires that a capias expire at a specified date or within a reasonable time from its issuance. Id. at
    2. Commenting that it lacked the authority to compose rules for the expiration of a capias when no
    time limit is given internally, it held that the capias at issue in that case expired on the date provided
    therein. Id. at 3.
    The present case is distinct from the situation in Laymance because the present capias does
    not contain a specific date upon which the defendant was to be brought to city court. We contrast the
    reasoning in Laymance with the unlimited validity of a capias issued when a defendant has forfeited
    his bond. “Any capias issued pursuant to a forfeit, whether the forfeit is conditional or final, shall
    remain in full force and effect until the defendant is apprehended and returned to the criminal justice
    system, and a disposition is entered in the defendant’s case.” Tenn. Code Ann. § 40-11-33(c)
    (providing for the arrest of the defendant by the bail bondsman or surety). This statute suggests that
    the legislature intended an indefinite life for a capias issued because the defendant forfeited his bond.
    In the present case, Phyllis Davis testified that the city warrant reflects that the defendant posted
    bond but failed to appear for trial on July 7, 1992. This testimony reveals that the defendant forfeited
    his bond on the solicitation of prostitution charge. Finally, we note that the capias was issued on
    July 7, 1992, and the defendant was arrested on October 21, 1992. We cannot say that the three and
    one-half month time period was unreasonable.
    In summary, the capias is void due to its failure to run in the name of the state. Additionally,
    the fact that the city court clerk, rather than the city court judge, issued the capias renders it invalid.
    D. Authority of Knox County Officers
    The defendant contends that the Knox County officers lacked jurisdiction to arrest him in
    Sevier County on a municipal capias. Although we have determined that the capias is void, we touch
    briefly upon this issue in the event of an appeal of our holding on the capias. Tenn. Code Ann. § 40-
    6-212 provides in pertinent part:
    When the sheriff, deputy sheriff, coroner or any other officer
    of any county in this state has possession of a warrant or capias
    for the arrest of any person charged with the commission of a
    crime, it is lawful for the sheriff, deputy sheriff, coroner or any
    -52-
    other officer to execute such process, and arrest the person so
    charged in any county in this state.
    Thus, the Knox County detectives could lawfully execute the capias in Sevier County. We also note
    that a Sevier County officer was present at the time of the defendant’s arrest.
    The defendant also complains that Knox County officers cannot act upon a capias directed
    to the Knoxville Chief of Police. With regard to arrest warrants, the issuing magistrate is not limited
    to county officers but “may empower any law enforcement officer to execute the warrant anywhere
    in the state.” Tenn. Code Ann. § 40-6-213. Furthermore, arrest warrants “should be directed to any
    lawful officer of the state, but if executed by any officer having authority, it is valid without regard
    to its direction.” Tenn. Code Ann. § 40-6-209. Although these statutes involve arrest warrants,
    section 40-6-212, quoted above, empowers an officer of any county to execute an arrest warrant or
    a capias in any county in Tennessee. Reading sections 40-6-209, -212, and -213 together, the Knox
    County detectives had the authority to arrest the defendant upon the present capias if it had been a
    valid process.
    The defendant also argues that the Knox County officers were using the capias as a pretext
    to take him into custody for the homicide investigation. As long as the capias was valid, the Knox
    County officers could lawfully take the defendant into custody without regard to their subjective
    reasons for wanting to arrest him. See State v. Duer, 
    616 S.W.2d 614
    , 616 (Tenn. Crim. App. 1981)
    (“Where an officer makes an arrest which is properly supported by probable cause to arrest for one
    offense, neither his subjective reliance on an offense for which no probable cause exists nor his
    verbal announcement of the wrong offense vitiates the arrest.”). If the capias was valid, the Knox
    County officers had the authority to arrest the defendant.
    E. Illegal Search
    The defendant contends that the trial court should have suppressed evidence gained in the
    search of his residence almost three hours after his October 21, 1992 arrest because the search
    warrant was invalid and no exception to the warrant requirement applied. He argues that the search
    warrant was invalid because the judicial commissioner lacked authority to issue it, the affidavit
    contained in the search warrant was defective and failed to state probable cause, and the judicial
    commissioner did not list the name of the officer to whom the search warrant was issued for
    execution. He maintains that the seizure of the items from his home does not fall within any of the
    exceptions to the warrant requirement, arguing that the officers were not lawfully within plain view
    of the items nor was the search incident to a legal arrest, that his father did not consent to the search
    of his bedroom, and that no exigent circumstances existed. The state contends that none of the
    evidence discovered during the search of the defendant’s bedroom was used against the defendant
    in either of the rape trials. Alternatively, it argues that even if the evidence had been introduced, the
    trial court did not rely upon the illegal search warrant but properly held that the items seized were
    in plain view of the officers, who were legally on the property arresting the defendant. It also
    maintains that the items were seized pursuant to a search incident to the defendant’s arrest even
    -53-
    though the officers did not take possession of the items until three hours later. We affirm the trial
    court’s ruling that the search warrant was invalid due to its failure to list the executing officer. Our
    holding that the capias is void calls into question the trial court’s bases for the validity of the search
    – that it was incident to the defendant’s arrest and that the items seized were in plain view–which
    both require the arrest to be valid.
    With regard to the search of the defendant’s bedroom, the trial court found the following:
    The detectives went to the defendant’s home to arrest him. They told one of his parents why they
    were there and then stepped into the living area of the home. The defendant came into the living
    area, and the detectives explained their presence and took him into custody. The defendant wanted
    to return to his bedroom to get some additional clothing, the detectives explained that they would
    have to go with him, and the defendant did not object to this. One or more of the detectives went
    into the defendant’s bedroom and another stood in the doorway. The detectives saw twine, which
    they suspected to be the same type as that used to bind one or more of the murder victims, on the
    bedroom floor. They also saw a necklace and earrings lying on a dresser in the bedroom.
    The trial court found that the detectives did not seize the twine or the jewelry at that time but
    that one of the detectives remained at the home while Detective Upchurch got a search warrant. The
    court determined that the warrant was invalid due to its failure to list the executing officer. It found
    that Detective Upchurch returned to the defendant’s home approximately two hours later with the
    warrant. At that point, the detectives spoke with the defendant’s father and asked if they could
    search his home. The defendant’s father signed a form consenting to the search. He placed no
    limitations on the search in the written consent. A Sevier County officer recalled the defendant’s
    father saying that the detectives were free to search the residence but that they would have to get the
    defendant’s permission to search his bedroom. The trial court noted that the testimony of the
    defendant’s mother established that the defendant’s parents did have the right to enter his room when
    they wanted to do so. The detectives searched the defendant’s bedroom, collected evidence, and
    photographed the residence. The trial court found that the search was valid as incident to a lawful
    arrest and that the items in question were in the detective’s plain view at the time that they affected
    the lawful arrest.
    A search warrant must list the name of the executing officer:
    The magistrate shall endorse upon the search warrant the hour,
    date, and name of the officer to whom the warrant was delivered
    for execution; and the exact copy of the warrant and the
    endorsements thereon shall be admissible evidence. Failure of
    said magistrate . . . to endorse thereon the date, and time of
    issuance and the name of the officer to whom issued, . . . shall
    make any search conducted under said search warrant an illegal
    search and any seizure thereunder an illegal seizure.
    -54-
    Tenn. R. Crim. P. 41(c). In the present case, the line in the search warrant for the executing officer’s
    name is blank. Judicial Commissioner Baker testified that he overlooked the blank line when filling
    out the search warrant. The search warrant fails to comply with Rule 41(c) and is invalid. See State
    v. Stepherson, 
    15 S.W.3d 898
    , 902 (Tenn. Crim. App. 1999) (holding that the magistrate’s listing
    of the incorrect executing officer violated Rule 41(c) and was fatal to the warrant’s validity). The
    failure to list the executing officer on the search warrant renders the subsequent search illegal unless
    an exception to the warrant requirement applies.
    Initially, we note that 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). 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).
    The analysis of any warrantless search must begin with the proposition that such searches are
    per se unreasonable under the Fourth Amendment to the United States Constitution and article I,
    section 7 of the Tennessee Constitution. This principle against warrantless searches is subject only
    to a few, specifically established and well-delineated exceptions. Katz v. United States, 
    389 U.S. 347
    , 357, 
    88 S. Ct. 507
    , 514 (1967); State v. Tyler, 
    598 S.W.2d 798
    , 801 (Tenn. Crim. App. 1980).
    Before the fruits of a warrantless search are admissible as evidence, the state must establish by a
    preponderance of the evidence that the search falls into one of the narrowly drawn exceptions to the
    warrant requirement. State v. Shaw, 
    603 S.W.2d 741
    , 742 (Tenn. Crim. App. 1980). One such
    exception is for a search incident to a valid arrest. United States v. Robinson, 
    414 U.S. 218
    , 235,
    
    94 S. Ct. 467
    , 477 (1973). Another exception is made for an item within the plain view of an officer
    who has a right to be at a particular vantage point. Armour v. Totty, 
    486 S.W.2d 537
    , 538 (Tenn.
    1972) (relying upon the plurality opinion in Coolidge v. New Hampshire, 
    403 U.S. 443
    , 
    91 S. Ct. 2022
     (1971)). A third exception is when the property owner voluntarily consents to a search of the
    property. Schneckloth v. Bustamonte, 
    412 U.S. 218
    , 219, 
    93 S. Ct. 2041
    , 2043-44 (1973); State v.
    Brown, 
    836 S.W.2d 530
    , 547 (Tenn. 1992).
    In the present case, the trial court’s application of both the search incident to an arrest and
    the plain view exceptions require that the defendant’s arrest be valid. Our holding that the capias
    upon which the defendant was arrested is void calls the trial court’s reliance on these exceptions into
    question. Upon a retrial of D. C.’s case, the trial court must reexamine the propriety of the
    warrantless search. In this regard, we note that although the trial court found that the defendant’s
    father consented to the search of his home, it did not determine whether the defendant’s father’s
    consent to the search removed the need for a warrant. The trial court noted that the defendant’s
    parents had the right to enter the defendant’s bedroom as revealed by the defendant’s mother entering
    the room to turn down the radio or to leave laundry in the room but stated that it “just include[d] that
    as [the court’s] recollection of the facts in this case.” We do not foreclose the state from showing
    upon remand that the search was valid.
    IV. SUPPRESSION OF STATEMENTS
    -55-
    The defendant contends that the trial court erred in not suppressing the four statements that
    he gave to law enforcement officers on November 9, 10, and 11, 1992. He argues that the statements
    were the product of his illegal arrest, illegal confinement, and the illegal search of his residence. He
    also contends that law enforcement took his statements in violation of his right to remain silent and
    his right to counsel. He argues that he did not knowingly or voluntarily give the statements due to
    his mental illness and that the statements are unreliable. Finally, with regard to the first rape trial,
    he asserts that the trial court erroneously refused to hold a hearing on his motion to suppress the
    statements before the first rape trial.
    The state contends that the defendant’s statements were not used in either of his trials and
    that, therefore, the defendant has failed to prove that he was prejudiced by the trial court’s decision
    not to exclude the statements. It also argues that the statements were admissible and that the
    defendant’s reasons for suppression lack legal support. With regard to the first rape trial and the
    consolidated convictions for offenses against A. D. and G. T., we conclude that the issue is moot
    because the state did not use the statements at trial. With regard to the offenses against D. C., we
    conclude that we are unable to review the defendant’s contentions because the trial court did not
    make sufficient findings of fact relative to all of the evidence pertaining to the issue.
    The defendant gave four statements while incarcerated in the Knox County Jail serving the
    thirty-day sentence for solicitation of prostitution. In the first three statements, he purported to be
    “Kyle” and confessed to murdering four women and to raping others. He gave the fourth statement
    as “Phillip Daxx,” who talked about protecting the defendant from Kyle. The defendant executed
    rights waiver forms before each of the statements. The trial court ruled that although the defendant
    had requested a lawyer on October 30, 1992, the statements were admissible because the defendant
    initiated contact with law enforcement on each occasion. It also found that law enforcement officers
    advised the defendant of his rights before each statement. It ruled that although the defendant’s
    conduct while in custody was unusual, no evidence existed that when the defendant gave the
    statements, he did not know what he was doing or that they were involuntary.
    The admissibility of the statements is not an issue in controversy with regard to the first rape
    trial and the convictions relating to the offenses against G. F. and A. D. because the statements were
    not introduced in either rape trial. For this reason, the issue is moot in this appeal of the rape trials.
    See State ex rel. Lewis v. State, 
    208 Tenn. 534
    , 537-38, 
    347 S.W.2d 47
    , 48-49 (1961); State v. Doe,
    
    813 S.W.2d 150
    , 152 (Tenn. Crim. App. 1991). The defendant argues that although the state did not
    introduce the statements in its case-in-chief, the fact that the state could have used the statements
    affected how he approached his defense in terms of strategy, proof, or the potential for a plea
    agreement. The defendant fails to specify how the admissibility of the statements affected the
    defense strategy except to suggest that he might have testified by referring to the threat of the state
    using the statements in cross-examination during the consolidated rape trial. The argument that the
    defendant did not testify because of the admissibility of the statements is speculative. We conclude
    that the issue is moot with regard to the first rape trial and the cases relating to G. T. and A. D.
    -56-
    With regard to the reversal of D. C.’s case due to its improper consolidation, the issue of the
    statements may still be viable in the event of a retrial. Despite the potential use of the statements,
    we are unable to review their admissibility because the trial court’s findings on the issue are
    insufficient. For example, the trial court has made no findings regarding members of law
    enforcement having contact with the defendant on November 4 and 5, 1992, in relation to Lieutenant
    Larry Johnson’s testimony that the defendant initiated contact with him and TBI Agent David
    Davenport on November 9, 1992. For instance, meetings with the defendant on November 4 and 5
    may cast doubt upon the credibility of Lieutenant Johnson’s testimony regarding the questioning of
    the defendant. If the suppression of the statements is raised upon the retrial of D. C.’s case, the trial
    court should make complete findings, and take proof if appropriate, with regard to the issues
    surrounding the suppression of the statements.
    V. ORDER OF TRIALS
    The defendant contends that the trial court erred in allowing the state to set the order of his
    trials with the homicide cases being last, and that, consequently, his convictions in the first rape case
    should be reversed and a new trial should be granted. The defendant states that this issue is closely
    related to the issue relating to the trial court staying other proceedings against him and that the order
    of trials set by the state coupled with the stay significantly prejudiced him. He also complains that
    he was denied his right to a speedy trial as a result of the order of his trials as set by the state.
    In State v. Nichols, 
    877 S.W.2d 722
    , 735-36 (Tenn. 1994), our supreme court held that the
    state has discretion to determine the order of prosecutions and that it was not an abuse of discretion
    to choose an order of trials that results in an earlier trial “creating” an aggravating circumstance in
    a subsequent capital trial. In the present case, the defendant initially objected to the order chosen
    by the state on the grounds that a conviction in one of the rape trials would create an aggravating
    circumstance if the capital cases reached sentencing. The defendant now acknowledges the Nichols
    holding but argues that this case is distinguishable because he had demanded a speedy trial and the
    trial court had stayed all other proceedings against him until the completion of the first rape case.
    We have already concluded that the defendant was not denied a speedy trial in the first rape case,
    noting the timing of and circumstances surrounding his demand as it related to that case. As we
    discuss in Issue XXII on the stay of other proceedings during the first rape trial, our review of the
    rape cases reveals no prejudice to the defendant from this practice. While the order chosen by the
    state to try the defendant’s cases may not have been the order preferred by the defendant, we cannot
    say that the state abused its discretion in setting the rape trials before the homicide trials.
    Also within this issue, the defendant complains that by not consolidating the cases initially
    and then staying the proceedings in the other cases, the state effectively forced the defendant to
    declare his insanity defense pursuant to Rule 12.2, Tenn. R. Crim. P., before the trial court ruled on
    pending motions and before discovery was completed. As a result of the defendant’s notice, the state
    requested a mental evaluation at a time when the defendant had no ability to discover the nature of
    the state’s case, making it impossible to evaluate his insanity defense meaningfully. The defendant
    complains that the state’s May 4, 1995 request for a mental evaluation was untimely and that the
    -57-
    state manipulated the process to get his insanity defense stricken. We address the merits of these
    complaints in the defendant’s ninth issue, concluding that the defendant’s insanity defense was not
    improperly stricken.
    The defendant also complains within this issue that the state abused its discretion in
    consolidating the remaining rape cases after the first rape trial. He contends that if consolidation
    were permissible, then the state should have consolidated the cases, including the first rape case,
    earlier. The defendant contends that if the cases had been consolidated earlier, then he would have
    defended the first rape case differently. Although the defendant concedes that he does not know
    what he would have done differently, he states that he would have had the benefit of the additional
    discovery and rulings on motions that occurred before the consolidated rape trial.
    Initially, we note that because the defendant’s insanity defense was similarly limited in the
    consolidated rape trial, it is unclear how the defendant was prejudiced in the first rape trial by not
    consolidating it with the other rape cases from the beginning. We also note that the defendant does
    not state what additional discovery or rulings would have helped his defense in the first rape case.
    In any event, the consolidation of the rape cases remaining after the first rape case was permissive.
    See Tenn. R. Crim. P. 8(b), 13(a). Thus, at no point, before or after the first rape trial, was the state
    required to consolidate any of the cases. Moreover, the record does not reveal that the first rape case
    could have been consolidated with the other rape cases. The victim testified that she was not a
    prostitute. The defendant did not proposition her; he pulled her off the street and into his car through
    the driver’s side window. These facts are not consistent with those of the victims in the consolidated
    rape case, in which consolidation was based, in part, upon the defendant’s common scheme or plan
    to seek dates from prostitutes and then rape them. We conclude that the trial court did not err,
    relative to the first rape case, by consolidating the remaining rape cases after the first rape trial.
    VI. DISCOVERY
    The defendant contends that the state’s failure to provide complete discovery in either of the
    rape cases affected his defense of these cases. The state contends that the defendant has waived this
    issue by failing to cite to the record and, with regard to the consolidated rape trial, by failing to
    specify what items the state failed to provide. It also argues that the defendant has failed to show
    how the missing items were material to his case. Arguing that the penalty for failure to provide
    discovery is exclusion of that item at trial, it contends that, even if meritorious, this issue does not
    require reversal because the state did not introduce any of the allegedly withheld items at either trial.
    We conclude that the defendant has failed to show that most of items were discoverable and that he
    was not harmed by state’s failure to disclose discoverable items.
    Rule 16, Tenn. R. Crim. P., governs the discovery process. It provides in pertinent part that
    upon the defendant’s request, the state
    shall permit the defendant to inspect and copy or photograph: any
    relevant written or recorded statements made by the defendant, or
    -58-
    copies thereof, within the possession, custody or control of the
    state, the existence of which is known, or by the exercise of due
    diligence may become known, to the district attorney general; the
    substance of any oral statement which the state intends to offer in
    evidence at the trial made by the defendant whether before or
    after arrest in response to interrogations by any person then
    known to the defendant to be a law-enforcement officer; and
    recorded testimony of the defendant before a grand jury which
    relates to the offense charged.
    (C) Documents and Tangible Objects. Upon request of the
    defendant, the state shall permit the defendant to inspect and copy
    or photograph books, papers, documents, photographs, tangible
    objects, buildings or places, or copies or portions thereof, which
    are within the possession, custody or control of the state, and
    which are material to the preparation of the defendant’s defense
    or are intended for use by the state as evidence in chief at the trial,
    or were obtained from or belong to the defendant.
    (D) Reports of Examinations and Tests. Upon request of a
    defendant the state shall permit the defendant to inspect and copy
    or photograph any results or reports of physical or mental
    examinations, and of scientific tests or experiments, or copies
    thereof, which are within the possession, custody or control of the
    state, the existence of which is known, or by the exercise of due
    diligence may become known, to the district attorney general and
    which are material to the preparation of the defense or are
    intended for use by the state as evidence in chief at the trial.
    Tenn. R. Crim. P. 16(a)(1)(A), (C)-(D). The state is not required to disclose “reports, memoranda,
    or other internal state documents made by the district attorney general or other state agents or
    law-enforcement officers in connection with the investigation or prosecution of the case, or of
    statements made by state witnesses or prospective state witnesses” except to the extent required by
    Rule 16(a)(1)(A) and (D). Tenn. R. Crim. P. 16(a)(2). Both the state and the defendant have a
    continuing duty to disclose evidence previously requested and subject to discovery under Rule 16.
    Tenn. R. Crim. P. 16(c). When arguing that the state violated Rule 16, the defendant bears the
    burden of showing “the degree to which the impediments to discovery hindered trial preparation and
    defense at trial.” State v. Brown, 
    836 S.W.2d 530
    , 548 (Tenn. 1992).
    The state contends that because it did not introduce any of the items listed by the defendant
    in either of the rape cases, the penalty of exclusion of evidence in Rule 16(d) is not available. The
    defendant argues that because Rule 16 entitles him to items material to the preparation of his
    defense, he was prejudiced by the lack of discovery without regard to the fact that the undiscovered
    -59-
    evidence was not introduced at trial.        Rule 16 provides the following regarding a party’s
    noncompliance:
    If at any time during the course of the proceedings it is brought to
    the attention of the court that a party has failed to comply with
    this rule, the court may order such party to permit the discovery
    or inspection, grant a continuance, or prohibit the party from
    introducing evidence not disclosed, or it may enter such other
    order as it deems just under the circumstances.
    Tenn. R. Crim. P. 16(d)(2). The “such other order” provision of the rule includes the ability to
    dismiss the indictment. State v. Collins, 
    35 S.W.3d 582
    , 585 (Tenn. Crim. App. 2000). The trial
    court should refrain from excluding evidence for noncompliance with discovery rules “except when
    it is shown that Defendant is actually prejudiced by the state’s failure and the prejudice cannot be
    otherwise eradicated.” State v. Payne, 
    791 S.W.2d 10
    , 16 (Tenn. 1990). We agree with the state that
    the penalties provided in Rule 16(d) – penalties to be imposed by the trial court upon finding a
    discovery violation – are not available to the defendant at this juncture because they are premised
    upon the trial being forthcoming or ongoing. Yet, the defendant argues that the state’s failure to
    provide discovery in a timely fashion deprived him of his rights to due process and a fair trial. See
    State v. Ferguson, 
    2 S.W.3d 912
    , 916-17 (Tenn. 1999) (holding that due process under the Tennessee
    Constitution requires us to inquire whether a trial conducted without evidence lost or destroyed by
    the state would be fundamentally fair). For this reason, we will examine the defendant’s specific
    contentions regarding the withholding of discovery.
    A. Discovery Violations in the First Rape Case
    The defendant contends that the state failed to provide discovery materials in time for him
    to be able to consider those materials in formulating his defenses for the first rape trial. He claims
    that in early September 1995 – about a month before the October 1995 trial – the state provided
    Knoxville Police Department files, which included a photograph array shown to the victim,
    numerous photographs of the crime scene, the victim’s clothing, and the victim’s rape kit made on
    the day of the offenses. He argues that the belated provision of the photograph array resulted in the
    trial court’s refusal to entertain a motion to suppress those photographs. He contends that if he had
    received the rape kit during the discovery process in 1993, he could have obtained DNA testing to
    prove his innocence. Instead, he contends that by 1995, the vaginal swab in the kit had deteriorated
    and could not be tested. He also argues that the state introduced a rope during the first rape trial that
    was not provided in discovery. The state contends that these items were provided to the defendant
    before trial and that he cannot demonstrate prejudice with regard to belated discovery.
    With the exception of the photograph array, the defendant has failed to substantiate in the
    record that the items he lists were in fact not provided until early September 1995. Although in the
    interest of justice we have tolerated less than exemplary citation to the record for other issues in this
    appeal, here we are also limited by the defendant’s failure to challenge the discovery of the listed
    -60-
    items in his motion for a new trial or the amendments thereto. See T.R.A.P. 3(e) (requiring for
    appellate review that a defendant have raised an issue alleging error in the admission of exclusion
    of evidence in the motion for new trial). The closest the defendant comes to raising the issue of
    belated discovery is an unnumbered amendment to the motion for new trial filed on July 29, 1996,
    which generally alleges that the state failed to disclose exculpatory and favorable evidence to the
    defense. The motion does not specify the evidence that was not disclosed but states that the defense
    will “offer proof of exculpatory and favorable evidence the Defense discovered after the trial” and
    that he would offer the proof at evidentiary hearings beginning on July 30, 1996. Because this
    amendment addresses exculpatory or favorable evidence and evidence discovered after the trial, it
    is a stretch to apply it to photographs of the crime scene, rope allegedly used to bind the victim, or
    the victim’s clothing or untested rape kit discovered a month before trial.
    At the August 26, 1996 hearing on the motion for new trial, the defendant mentioned the rape
    kit when arguing that the state should have provided discovery in all cases before the first rape trial.
    He argued that he first learned of the rape kit’s existence in September 1995, that it had been placed
    in Detective Tom Pressley’s desk drawer, and that the police department said that it had spoiled for
    purposes of serology. He argued that had the rape kit been tested, it could have excluded him as the
    rapist and that evidence should be presumed to be adverse to the party who spoils evidence in its
    possession. The defense counsel’s argument regarding the rape kit does not constitute proof, and
    this court’s review of the record does not reveal that the defendant presented proof regarding the rape
    kit in the hearings between July 30 and August 26, 1996. Although the defendant asked Detective
    Pressley about the rape kit from the victim in the first rape trial at an August 7, 1996 hearing,
    Detective Pressley testified that he was not involved in that case. Defense counsel’s argument also
    contradicts the trial testimony of Officer Whitson that he collected the rape kit from the hospital on
    July 18, 1992, and a year later, moved it from the refrigerator where it was stored to a warehouse.
    Finally, the trial court made no findings or ruling regarding the rape kit. We conclude that the
    defendant has failed to present the issue properly for our review. Thus, we will examine the
    defendant’s contentions only with regard to the photograph array.
    In a September 20, 1995 motion hearing, the defendant contended that a photograph array
    containing a photograph of the defendant taken after his arrest should be suppressed because the
    arrest was illegal. He noted that he had not received the array in discovery but had located it himself
    on September 1, 1995. The prosecutor challenged this contention, indicating that he had talked
    about the array with the defendant in his office. The defendant clarified that the state had given him
    a series of six pictures but that he did not know how they related to the array in this case because the
    state had provided a lineup form in all cases except this one. During the hearing, he acknowledged
    that the state had allowed him to interview the victim and argued that the interview confirmed that
    the victim viewed a photograph array and picked out his photograph taken as a result of his illegal
    arrest.
    The defendant contends that the state’s failure to provide the photograph array before
    September 1995 resulted in the trial court refusing to entertain a motion to suppress the array. The
    record belies this contention. The defendant argued for the suppression of the array at the September
    -61-
    20, 1995 hearing. Citing State v. Miller, 
    608 S.W.2d 158
     (Tenn. Crim. App. 1980), the state argued
    that the photograph array was admissible for purposes of identification even if taken following an
    illegal arrest. The trial court declined to address the suppression issue at that time, ruling that it
    would take up the suppression of the array on the morning of trial. Before the jury was selected, the
    defendant again argued that his photograph should be suppressed because it resulted from an illegal
    arrest. The trial court overruled the motion. This course of events does not reveal that the defendant
    was unable to attempt to suppress the array based upon the timing of its disclosure.
    The defendant also argues that the trial court should have required the state to provide
    discovery for all of the rape cases and the murder cases before the first rape trial. In this regard, he
    argues that the state did not provide the following discovery until after the first rape trial:
    (1) the defendant’s November 11, 1992 note to Corrections
    Officer Birnbaum, asking “Who is Kyle?”;
    (2) TBI recordings of his statements of October 29 and 30 and
    November 9, 1992;
    (3) the defendant’s oral statements made to Detective Johnson;
    (4) the defendant’s medical records from the Knox County
    Sheriff’s Office;
    (5) the defendant’s records from Helen Ross McNabb Center;
    (6) the defendant’s employment records;
    (7) property receipts for property examined by laboratories;
    (8) the statements of five women relating offenses similar to those
    on trial;
    (9) documents relating to the prior criminal activities of the
    victims in his cases;
    (10) documents concerning prior law enforcement inquiries about
    the defendant;
    (11) the pathologist’s records;
    (12) the medical examiner’s records;
    (13) the “bug expert’s” reports;
    -62-
    (14) FBI laboratory or scientific reports;
    (15) TBI laboratory or scientific reports;
    (16) numerous pictures;
    (17) Knox County Probation Office records for victims and state
    witnesses;
    (18) Tennessee Department of Corrections records concerning
    victims and state witnesses;
    (19) Tennessee Board of Paroles records concerning victims and
    state witnesses;
    (20) Knox County Sheriff’s Department records concerning
    victims and state witnesses; and
    (21) Knoxville Police Department records relating to the
    credibility of victims and state witnesses.
    He does not explain how potential defenses in the first rape trial were compromised by the absence
    of this discovery. Although he argues that all of his rape and murder cases were “inextricably
    intertwined,” he does not specify how he could have better defended the first rape case if the state
    had provided the listed items. Instead, he urges this court to interpret the phrase “material to the
    defendant’s preparation of his defense” from Rule 16(a)(1)(C) and (D) using the standard for the
    scope of civil discovery, which requires disclosure of anything “relevant to the subject matter
    involved in the pending action,” Tenn. R. Civ. P. 26.02(1). The defendant argues that any piece of
    evidence that the state collected during its investigation must have some relevance to the cases or
    else the state would not have collected it.
    We decline the defendant’s invitation to adopt the civil standard for the criminal rule. In
    determining the proper standard, we believe that it is appropriate to refer to federal authority
    interpreting Rule 16(a), Fed. R. Crim. P., because our Rule 16 conforms with and was greatly
    derived from its federal counterpart. See State v. Hicks, 
    618 S.W.2d 510
    , 514 (Tenn. Crim. App.
    1981). “‘Materiality means more than that the evidence in question bears some abstract logical
    relationship to the issues in the case. . . . There must be some indication that the pretrial disclosure
    of the disputed evidence would have enabled the defendant significantly to alter the quantum of
    proof in his favor.’” United States v. Buckley, 
    586 F.2d 498
    , 506 (5th Cir. 1978) (quoting United
    States v. Ross, 
    511 F.2d 757
    , 762-63 (5th Cir.1975)); see also United States v. Maniktala, 
    934 F.2d 25
    , 28 (2d Cir. 1991); United States v. RMI Co., 
    599 F.2d 1183
    , 1188 (3d Cir. 1979); United States
    v. Lloyd, 
    992 F.2d 348
    , 351 (D.C. Cir. 1993); Moore’s Federal Practice – Criminal § 616.05 (2002);
    Timothy M. Hall, Annotation, Books, Papers, and Documents Subject to Discovery by Defendant
    -63-
    Under Rule 16 of Federal Rules of Criminal Procedure, 108 A.L.R. Fed. 380, 400 (1992). This
    definition of materiality is not restricted to exculpatory evidence because the discovery of
    inculpatory evidence may enable the defendant to “‘alter the quantum of proof in his favor’ in
    several ways: by preparing a strategy to confront the damaging evidence at trial; by conducting an
    investigation to attempt to discredit that evidence; or by not presenting a defense which is undercut
    by such evidence.” United States v. Marshall, 
    132 F.3d 63
    , 68 (D.C. Cir. 1998). In order to be
    material, the discoverable item must “significantly help[] in ‘uncovering admissible evidence, aiding
    witness preparation, corroborating testimony, or assisting impeachment and rebuttal.’” United States
    v. Gaddis, 
    877 F.2d 605
    , 611 (7th Cir. 1989) (quoting United States v. Felt, 
    491 F. Supp. 179
    , 186
    (D.D.C. 1979)); Lloyd, 992 F.2d at 350 (relying upon Felt’s definition of materiality). This court
    has previously defined the phrase “material to the preparation of the defendant’s defense” using this
    definition: a tangible object under Rule 16(a)(1)(C) is material “‘if there is a strong indication that
    [the evidence] will play an important role in uncovering admissible evidence, aiding witness
    preparation, corroborating testimony or assisting impeachment and rebuttal.’” State v. Hershel
    Clark, No. 02C01-9112-CR-00273, Shelby County, slip op. at 12 (Tenn. Crim. App. June 2, 1993)
    (quoting Felt, 491 F. Supp. at 186).
    The defendant does not explain what role the twenty-one listed items would have played in
    his preparation for the first rape trial but, instead, argues only that he could not prepare his defenses
    in the first rape trial until he had received discovery in all of his cases. He relies heavily upon a
    comment by the trial court in a January 16, 1996 scheduling conference following the first rape trial
    but before the remaining rape trials were consolidated. In that conference, the defendant contended
    that the bulk of his motions related to the murder trials, which were set to be tried after the rape
    trials. The state argued that the defense was attempting to address motions relating to the later set
    cases before the next scheduled rape trial. The trial court commented:
    Well, and they [the defense] say, though, that – that depending on
    the outcome of those motions that can have significant impact
    upon the way they that they approach the trials before September.
    I think that’s a valid concern.
    The defendant argues that this comment supports his assertion that he could not prepare his defenses
    in the first rape trial in the absence of discovery from all cases. The defendant must do more than
    emphatically state that he needed certain discovery. He must show how the discoverable items were
    material to the preparation of his defenses.
    The defendant points to the trial court’s order for a mental evaluation in the consolidated rape
    case, which directed the parties to provide the defendant’s medical records, employment records,
    school records, and psychological and psychiatric records, as proof that these items were relevant
    to his defenses in all of the cases. As examined in depth in Issue IX, the defendant refused to submit
    to a court-ordered mental evaluation before the first rape trial, lost the ability to present expert
    testimony on insanity due to this refusal, and announced before trial that he was not going to pursue
    an insanity defense based upon lay testimony because the expert testimony had been excluded. The
    -64-
    defendant has failed to explain how the twenty-one items he lists would have helped him prepare a
    defense he ultimately elected not to present.
    The defendant also contends that the trial court’s consolidation of the other rape cases and
    its ruling that evidence of the remaining rape cases was admissible pursuant to Rule 404(b), Tenn.
    R. Crim. P., in the trials of those cases as well as in the murder case show that he needed discovery
    on the consolidated rape and murder cases before the first rape trial. Notably, no ruling exists that
    the other rape cases or the murder case were admissible pursuant to Rule 404(b) in the first rape trial.
    We are unable to make the mental leap that the defendant requests, and we conclude that he is not
    entitled to relief on this issue.
    B. Discovery Violations in the Consolidated Rape Case
    The defendant contends that the trial court applied the wrong standards to the discovery
    process during the consolidated rape trial. He asserts that the trial court misapplied Rule 16 by
    restricting discovery to exculpatory evidence that the state intended to introduce in its case-in-chief.
    He maintains that the trial court erroneously required him to obtain discoverable materials from a
    source other than the state if the other source also had the records. He also states that the trial court
    refused to conduct a Rule 16(d) in camera review of the state’s files in order to determine whether
    the state was withholding discoverable evidence. He contends that the state’s discovery violations
    violated his rights to a fair trial and to due process of law. The state responds that the defendant has
    waived this issue by failing to cite to the record regarding the evidence that was allegedly withheld.
    It also argues that the defendant has failed to show that he was prejudiced by the withholding of
    evidence.
    The defendant asserts that the consolidated rape trial ended on May 24, 1996, and that from
    July 1996 through the homicide trial in early 1999, he received thousands of pages of materials that
    the state should have provided in discovery before the consolidated rape trial. He argues that “[it]
    is impossible to discuss all of the suppressed items of discovery in this brief. A review of the
    receipts of discovery and the record best reflects the information withheld and the efforts of the
    defense required [to] obtain fundamental disclosures.” He claims that the fact that the state’s July
    3, 1996 open-file discovery policy, which occurred over one month after the consolidated rape trial,
    resulted in the disclosure of two thousand pages of additional material is alone sufficient reason to
    reverse his convictions. As examples of items that the state should have provided, he points to TBI
    summaries of his statements; TBI and FBI laboratory reports revealing that none of the victims’
    fingerprints were found in his vehicles nor did his vehicles, shoes or clothing contain fibers or debris
    matching Cahaba Lane; and the complaints of other rape victims whose rapes were similar to those
    described by the consolidated rape victims. It is the defendant’s responsibility to specify which
    items the state should have provided as well as the reasons why these items were material to the
    preparation of his defense. See T.R.A.P. 27(7) (requiring that the appellant’s brief set forth his or
    her contentions with respect to the issue, the reasons that those contentions require relief, citations
    to authorities, and appropriate references to the record); Tenn. Ct. Crim. App. R. 10(b). We decline
    the defendant’s invitation to sift through the voluminous record in search of the purported discovery
    -65-
    violations. In this respect, we will consider only the specific examples of discovery violations that
    the defendant mentions.
    The defendant contends that the state failed to provide TBI Agent David Davenport’s
    summaries of the defendant’s statements before the consolidated rape trial. In support of this
    contention, the defendant cites only to Agent Davenport’s handwritten notes and typed summaries
    admitted as exhibits. Rule 16(a)(1)(A) requires the state to disclose “the substance of any oral
    statement which the State intends to offer in evidence at trial made by the defendant whether before
    or after arrest in response to interrogations by any person then known to the defendant to be a law
    enforcement officer.” Otherwise, reports or memoranda of law enforcement officers made in
    connection with the investigation of a case are not discoverable. Tenn. R. Crim. P. 16(b) (providing
    that reports, memoranda, and internal state documents pertaining to the investigation or prosecution
    of the case are not discoverable except as provided in subsections (A), (B), or (D) of Rule 16(a)(1)).
    In the present case, the state did not offer any of the defendant’s statements at trial but noted
    its intention to use the defendant’s statements in a February 6, 1996 pretrial hearing. At that hearing,
    the defendant acknowledged that he had received at least six different statements attributed to the
    defendant. In his brief, the defendant argues that he “did not even know of many of [his] statements
    until TBI Agent Davenport’s summaries were provided” after the rape trials and therefore could not
    move to suppress these statements. The defendant’s brief fails to explain what new statements by
    him Agent Davenport’s notes and summaries contained. We note that our own review of the record
    reveals that during a July 30, 1996 motion hearing on the state’s failure to provide exculpatory
    evidence in the consolidated rape trial, the defendant attempted to explain what new statements the
    summaries by Agent Davenport, exhibits 118 and 119, contained beyond the reports by Agent
    Davenport received in 1993, exhibits 116 and 117. The state argued that exhibits 118 and 119 were
    merely Agent Davenport’s reports to his superiors paraphrasing other statements by the defendant
    that had already been litigated in this case. Exhibits 116 and 117 are not contained in the record,
    and, therefore, we cannot compare the reports discovered before the consolidated rape trial with
    those discovered in the open-file discovery. In any event, even if the notes and summaries contained
    new statements, the defendant was not harmed by his inability to attempt to suppress them because
    the state did not use any statements by the defendant at trial.
    The defendant also states that the state did not disclose until after the consolidated rape trial
    TBI and FBI laboratory reports which revealed that none of the victims’ fingerprints were found in
    his vehicles. In his reply brief, he argues that this information was important to his defense in the
    consolidated rape trial because all of the victims testified that they were inside one of his vehicles.
    The defendant also argues that the state failed to disclose TBI and FBI laboratory reports revealing
    that his vehicles, shoes, and clothing did not contain fibers or debris matching Cahaba Lane. He
    maintains that these reports would have been important in the consolidated rape trial because three
    of the victims claimed that the offenses occurred at Cahaba Lane.
    In support of these arguments, the defendant points us to exhibit 208 in the murder trial,
    which is a two-inch-thick binder filled primarily with multiple copies of handwritten and typed logs
    -66-
    of items collected from the homicide victims, Cahaba Lane, the defendant’s residence, and his
    vehicles. The binder also contains the FBI’s results from textile fiber comparisons, DNA testing,
    blood and semen testing, and hair comparisons relating to the items collected. Unfortunately, the
    reports do not contain a complete key for the numbers assigned to the items tested, and therefore,
    we are unable to evaluate the defendant’s contentions regarding what the test results prove and their
    value to his defense in the consolidated rape trial. See Brown, 836 S. W.2d at 548 (holding that the
    defendant’s failure to provide the discovery in dispute in the record on appeal prevented the court
    from determining whether the state’s failure to provide these items affected the outcome of the trial).
    Initially, we note that it is not clear which materials in the black notebook the defendant
    lacked. The defendant’s argument at a hearing on exculpatory evidence held a month and one-half
    before the consolidated rape trial revealed that he knew about fingerprint and DNA testing relating
    to the rape and murder cases. At this hearing, he referred to specific results concerning DNA testing
    contained within the reports located in the black notebook, but he did not refer to the results that he
    raises in this appeal. Assuming that the defendant did not have the FBI reports that he now argues
    the state should have disclosed, we turn briefly to the record to attempt to discern whether the results
    of those reports support the defendant’s contentions regarding their materiality to his defense.
    The record reveals that at the August 26, 1996 hearing on the motion for new trial in the first
    rape case, the defendant stated that he received FBI laboratory reports after the open file discovery
    permitted by the state in June 1996. He said that these reports concerned testing of “Huskey’s
    clothes, of dust, debris, dirt off of his shoes . . . compared with the soil, and the sample, and the
    fabrics taken from the persons at Cahaba Lane, particularly [one of the murder victims].” He stated
    that he was arrested on the day that this particular victim was allegedly killed, and yet his shoes bore
    no dirt. When the trial court questioned the relevance of that test result beyond the murder
    prosecution, the defendant argued that the jurors in the first rape trial knew about the murders. He
    contended that his ability to cast doubt upon him being the Zoo Man was relevant to the first rape
    trial and all of the other cases.
    At a September 10, 1996 motion hearing concerning the defendant’s motion to compel
    discovery in the murder case, the defendant argued that he received laboratory reports relating to the
    processing of his vehicles in the open file discovery but that he still did not have the photographs
    related to this processing or the items removed from his vehicles. The state questioned the
    materiality of photographs of the defendant’s truck. He stated that the laboratory tests on items taken
    from his truck revealed that those items had no evidentiary value. He asked whether the state
    realized that this result “might be exculpatory to the defense.”
    At the September 16, 1996 hearing on the motion for new trial in the consolidated rape trial,
    the defendant argued that once he got the laboratory information from the FBI, he
    found that the FBI could exclude Thomas Dee Huskey, or at least
    offer evidence to exclude him as being the person that was in the
    area of Cahaba Lane on the day he was arrested, because they had
    -67-
    his shoes. They had the fibers; they had all of those things, and
    none of them matched that area. Had we had that information,
    that would have been important.
    The defendant also adopted the arguments that he made at the hearing on the motion for new trial
    in the first rape case.
    When the state requests the FBI laboratory to conduct scientific tests, the FBI is the state’s
    agent and “reports in its possession are in the state’s possession for the purposes of Rule
    16(a)(1)(D).” State v. Goodman, 
    643 S.W.2d 375
    , 379 (Tenn. Crim. App. 1982). Assuming that
    the FBI and TBI reports revealed that dirt or debris from the scene of the crimes were not found on
    a defendant’s clothing or shoes or in his vehicles, they could be material to the preparation of the
    defense as such evidence could contradict the victims’ testimony that the defendant took them to a
    specific location, Cahaba Lane. Because the FBI and TBI reports in question were in the state’s
    possession and contained the results of scientific tests that were material to the preparation of the
    defendant’s defense, they were discoverable under Rule 16(a)(1)(D). We believe that the state
    should have disclosed these laboratory reports.
    However, even taking the defendant’s claims about what the FBI and TBI tests prove as true,
    we believe that the state’s failure to provide the tests before the consolidated rape trial was harmless.
    The rape closest in time to the defendant’s October 21, 1992 arrest occurred on October 5, 1992.
    The absence of material from Cahaba Lane in the defendant’s vehicles or on his clothing or shoes
    sixteen days after the most recent crimes is of limited significance. In the most specific argument
    that he made to the trial court on the subject, the defendant argued that the absence of dirt on his
    shoes was important to show that he did not commit the murders on Cahaba Lane, which were not
    at issue in the consolidated rape trial. We are not persuaded that the defendant’s inability to present
    the FBI laboratory results more probably than not affected the judgments in the consolidated rape
    trial. See T.R.A.P. 36(b).
    With regard to the absence of fingerprints in the defendant’s vehicles, our exploration of the
    record has revealed no instance in which the defendant argued that the FBI/TBI laboratory reports
    revealed the absence of fingerprints in the defendant’s vehicles. The black binder cited by the
    defendant reveals that latent fingerprints were taken from his vehicle. The binder contains a request
    from Detective Mike Freeman to the TBI for the comparison of the finger and palm prints of the
    homicide victims with “any fingerprints found during processing.” It contains an April 4, 1993 TBI
    report, which states that one of the latent fingerprints from the defendant’s vehicle matched the
    defendant’s right thumb print. The binder does not contain the results of fingerprint tests conducted
    by the FBI. An October 28, 1996 FBI letter, which is attached to the defendant’s October 31, 1996
    notice of partial receipt of discovery, states that the FBI conducted fingerprint examinations with
    regard to the homicide victims. Neither this notice nor the black binder reveal that any fingerprint
    analysis involved the fingerprints of the rape victims. These documents reveal that latent
    fingerprints were taken from the defendant’s vehicle and were compared to the homicide victims’
    fingerprints and that one of the latent fingerprints was identified as being that of the defendant.
    -68-
    With the reports cited by the defendant not revealing that the fingerprints taken from his vehicle
    were ever compared to those of the rape victims, we cannot assess any potential for prejudice. In
    any event, we cannot say that the failure to disclose more probably than not affected the judgments.
    See T.R.A.P. 36(b).
    The defendant contends that the state failed to disclose the complaints of other rape victims
    whose rapes were similar to those described by the consolidated rape victims. In his reply brief, he
    argues that the detectives investigating him looked into these complaints because of their similarity
    to the offenses on trial but excluded him as the perpetrator in these cases. He claims that had he been
    provided these statements earlier, he could have located and interviewed the complainants. His
    argument with regard to the usefulness of these complaints is threefold: (1) that he could have used
    the complaints to argue against consolidation, (2) that he could have used the claims of one of the
    complainants to show that the defendant’s confessions were false or unreliable, and (3) that he could
    have used the complaints in two of these cases to argue at trial that someone who looked like him
    was committing the offenses. In support of these contentions, the defendant cites us to the police
    report of T. S., who was raped on February 19, 1992, and to a letter from the KPD to the FBI
    requesting that the defendant’s blood and hair be compared to evidence from T. S.’s rape kit. He
    cites to a search warrant for Billy D. Foster’s hair and blood samples for comparison to evidence in
    the rape of A. P. He also cites to the statements of T. M., B. B., and A. R. taken in conjunction with
    the investigation of the murder case.
    Generally, a defendant may not discover police reports before trial. See State v. Daniel, 
    663 S.W.2d 809
    , 811 (Tenn. Crim. App. 1983). To the extent that officers investigated other rape
    complaints to determine whether the defendant committed those offenses, Rule 16(a)(2) provides
    that they are not subject to disclosure under the discovery rules because they are “reports,
    memoranda, or other internal State documents made by . . . law enforcement officers in connection
    with the investigation or prosecution of the case.” Furthermore, the statements of witnesses taken
    during the investigation of the murder case are likewise not discoverable under Rule 16(a)(2). In this
    respect, we note that Rule 16(a)(2), dealing with information not subject to disclosure to the
    defendant, excludes discovery under Rule 16(a)(1)(A), (B), and (C) from non-disclosure but not
    subsection (C) that authorizes the discovery of documents and tangible objects. We will address
    whether the state had an obligation to disclose these complaints as exculpatory evidence without
    regard to the discovery rules in the next issue, which deals with alleged Brady violations.
    Finally, the defendant contends that the trial court erroneously refused to examine the state’s
    files pursuant to Rule 16(d) to determine if the state had failed to disclose any discoverable evidence.
    Rule 16(d)(1) provides as follows:
    Upon a sufficient showing the court may at any time order that
    the discovery or inspection be denied, restricted, or deferred, or
    make such other order as is appropriate. Upon a motion by a
    party, the court may permit the party to make such showing, in
    whole or in part, in the form of a written statement to be inspected
    -69-
    by the judge alone. If the court enters an order granting relief
    following such an ex parte showing, the entire text of the party’s
    statement shall be sealed and preserved in the records of the court
    to be made available to the reviewing courts in the event of an
    appeal.
    The plain language of this provision does not authorize a defendant to request that the court conduct
    an in camera examination of the state’s files in order to ferret out discoverable information. Instead,
    the in camera review contemplated in this section is of a party’s written statement explaining why
    the court should order the denial, restriction, or deferral of discovery. Nevertheless, the trial court
    may perform an in camera inspection of evidence in the event of a discovery dispute. See State v.
    Butts, 
    640 S.W.2d 37
    , 39 (Tenn. Crim. App. 1982) (holding that although defendants are not entitled
    to routine access to police personnel records, upon a strong showing that the records contain
    information material to the defendant’s case, the trial court should inspect the records in camera and
    release the items material to the defense).
    In the present case, before the consolidated rape trial, the trial court noted that the defendant
    had asked it to review the state’s files for discoverable evidence because past conduct indicated that
    the state did not comply with the discovery rules and the state’s view of exculpatory evidence
    differed from the defendant’s. The court noted that it had inspected the files of one of the victims
    in camera, but it declined to inspect the state’s entire file or all law enforcement files. The court re-
    instructed the state to disclose to the defendant all information discoverable under the discovery rules
    and all exculpatory information, including information about witnesses not equally available to the
    defendant and any promises made to witnesses in exchange for their testimony. It stated that it was
    confident that the state had done this. Regarding the broad review requested by the defendant, the
    court stated, “It is not called for by the rules. It is unprecedented, and I don’t think it is appropriate.
    It is not this Court’s function to perform that task.” In light of the defendant’s general allegations
    that the files must contain discoverable evidence, we do not believe that the trial court abused it’s
    discretion in declining to perform the review of the state’s files that the defendant requested.
    In summary, the defendant is not entitled to relief on his claimed discovery violations. The
    alleged violations in the first rape case are either unsubstantiated in the record or unsupported by an
    explanation of how they were material to the preparation of the defense. Of the purported examples
    of violations in the consolidated rape trial, the defendant has failed to demonstrate that he was not
    provided with some of his statements until after the trial, nor was he harmed by the inability to
    suppress any undisclosed statements if they existed because the state did not introduce his statements
    at trial. With regard to the TBI and FBI laboratory reports, the state’s failure to disclose these
    reports before the consolidated rape trial was harmless error. Finally, the complaints of other rape
    victims investigated as a part of this case were not subject to discovery under Rule 16(a)(1)(C) as
    limited by Rule 16(a)(2).
    VII. EXCULPATORY EVIDENCE
    -70-
    The defendant contends that the state failed to disclose evidence favorable to the defense
    before the rape trials. He argues that he could have used this evidence in the first rape trial to show
    that someone else committed the offenses, to prove that his statements were false, and to decide
    whether he should use an insanity defense or agree to consolidate all the rape cases. With regard to
    the consolidated rape trial, he claims that he could have used the withheld evidence to argue against
    consolidation and to argue for suppression of his statements. He summarily argues that the failure
    to provide this evidence denied his federal and state constitutional rights to due process of law, a fair
    trial, and the effective assistance of counsel. The state contends that it did not withhold exculpatory
    evidence and that the evidence allegedly withheld was not material to the rape cases.
    Approximately a year and one-half before the first rape trial, the defendant filed a detailed
    motion for disclosure of exculpatory evidence in all of the rape cases. In this motion, the defendant
    asked the court to order the state to furnish any evidence that was favorable, exculpatory, or tended
    to establish a defense, to aid in avoiding a conviction, or to mitigate punishment. The defendant
    listed twenty-two examples of evidence that he was requesting, including evidence linking another
    person to the crimes; information suggesting that his oral or written statements were illegally or
    unconstitutionally obtained, evidence showing that he has a mental disease; and evidence from
    examinations, tests, or experiments that failed to implicate him in the crimes. On October 16, 1995,
    before the parties began selecting a jury, the defendant argued that the state had only provided a
    boilerplate response that it had provided all exculpatory evidence to him. The trial court denied the
    defendant’s motion, ruling that the state acted at its peril in failing to provide anything to which the
    defendant was entitled. In the consolidated rape trial, the trial court directed the state to disclose all
    exculpatory information to the defendant, although it was confident that the state had done this. It
    declined to determine whether evidence that the defendant was seeking in discovery was favorable
    or exculpatory evidence under Brady v. Maryland, 
    373 U.S. 83
    , 87, 
    83 S. Ct. 1194
    , 1196-97 (1963),
    ruling that those issues would come into play after the trial.
    In Brady, the United States Supreme Court determined that “suppression by the prosecution
    of evidence favorable to an accused upon request violates due process where the evidence is material
    either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id.;
    see also Hartman v. State, 
    896 S.W.2d 94
    , 101 (Tenn. 1995). In order to establish a due process
    Brady violation, the defendant must establish the following:
    1. The defendant must have requested the information (unless the
    evidence is obviously exculpatory, in which case the State is
    bound to release the information whether requested or not);
    2. The State must have suppressed the information;
    3. The information must have been favorable to the accused; and
    4. The information must have been material.
    -71-
    State v. Edgin, 
    902 S.W.2d 387
    , 390 (Tenn. 1995) (opinion on rehearing). Evidence is considered
    material under this standard only if there is a reasonable probability that had the evidence been
    disclosed to the defense, the results of the proceeding would have been different. Kyles v. Whitley,
    
    514 U.S. 419
    , 433, 
    115 S. Ct. 1555
    , 1565 (1995); Edgin, 902 S.W.2d at 390. The “touchstone of
    materiality”
    is a “reasonable probability” of a different result, and the
    adjective is important. The question is not whether the defendant
    would more likely than not have received a different verdict with
    the evidence, but whether in its absence he received a fair trial,
    understood as a trial resulting in a verdict worthy of confidence.
    A “reasonable probability” of a different result is accordingly
    shown when the Government's evidentiary suppression
    “undermines confidence in the outcome of the trial.”
    Kyles, 514 U.S. at 434, 115 S. Ct. at 1566 (citations omitted) (quoting United States v. Bagley, 
    473 U.S. 667
    , 678, 
    105 S. Ct. 3375
    , 3381 (1985)); see also Edgin, 902 S.W.2d at 390-91. Impeachment
    evidence, as well as exculpatory evidence, falls under the Brady rule. Bagley, 473 U.S. at 676, 105
    S. Ct. at 3380. The burden of proving a Brady violation rests with the defendant, and the violation
    must be proved by a preponderance of the evidence. Edgin, 902 S.W.2d at 389; State v. Spurlock,
    
    874 S.W.2d 602
    , 610 (Tenn. Crim. App. 1993).
    A. The First Rape Trial
    The defendant contends that the state withheld the following exculpatory evidence in the first
    rape trial: (1) evidence of similar rapes that he did not commit, (2) TBI Agent David Davenport’s
    memoranda, (3) the “Who is Kyle?” note, (4) a statement by his ex-wife that she thought he had a
    “split personality,” and (5) Detective Mike Freeman’s notes stating that the medical examiner’s
    preliminary examination concluded that one of the murder victims was killed while the defendant
    was in jail. He argues that this evidence was favorable to his defense and preparation of the first rape
    trial. The state contends that exculpatory evidence, not otherwise discoverable under the discovery
    rules, must be disclosed only if its absence undermines confidence in the verdict. It argues that the
    listed evidence was not material to the first rape trial.
    (1) Other Rape Complaints
    The defendant contends that the state should have disclosed the complaints of other rape
    victims, T. S., B. M., A. P., T. M., and B. B., who described offenses similar to those in the first rape
    trial. He argues that because he was excluded as the perpetrator in these other rapes, he could have
    used this evidence to show that someone else who looked like him was committing these offenses.
    The state contends that the only similarity between the complaints cited by the defendant and the
    offenses in the first rape trial is that the perpetrator cursed the victims. It argues that evidence of
    these dissimilar rapes was not favorable, material, or relevant to the first rape case. The defendant
    -72-
    replies that evidence that another person may be responsible for the crime undermines confidence
    in the verdict. We will review these victims’ statements.
    On February 19, 1992, T. S. complained that she had been raped. She said that she was
    walking home at 5:00 a.m. when a white male in a dark green, blue, or black Monte Carlo with a
    child restraint seat in the back offered her a ride. She said that en route, he turned into a driveway
    and began cursing her. She said that he made her get out of the car and remove her clothes and that
    he tied her hands behind her back with rope. She stated that he forced her to perform oral sex, then
    forced her into the woods, and hit her in the stomach. He penetrated her vaginally, forced her to
    perform oral sex again, and ejaculated in her mouth. He returned to his car, brought her clothes to
    her, and then left in his car. She described her attacker as a white male in his early thirties, weighing
    about 190 pounds, with black collar-length hair, and a black beard and moustache. Attached to the
    complaint is a search warrant for hair and blood samples from the defendant for DNA comparison.
    Detective Tom Pressley of the KPD testified that he showed T. S. a photograph array
    containing the defendant’s picture but that T. S. identified another person in the array as her attacker.
    He said that T. S. later called him and changed her identification to the defendant after seeing the
    defendant on television. Detective Pressley said that he did not charge the defendant in T. S.’s case
    because he believed her second identification was tainted. He said that he did not know the location
    of the laboratory results from the DNA comparison of the defendant’s samples with T. S.’s rape kit.
    He said that T. S. was not a known to be a prostitute.
    The complaint of T. S. contains a photocopy of a photograph array with the notation “looks
    like person who raped me” and signed by B. M. An arrow extends from this notation to the
    defendant’s photograph. This is the only evidence relating to B. M. cited by the defendant.
    Detective Pressley testified that he was also involved with investigating B. M.’s case, which he said
    was similar to T. S.’s case. He said that the perpetrator picked up B. M. while she was walking
    home on Woodbine Avenue, which is near Magnolia Avenue, after visiting a neighbor. Detective
    Pressley testified that the car driven by the perpetrator was similar to that in T. S.’s case and that the
    rape of B. M. was also violent. He stated that although prostitutes frequent Woodbine Avenue, B.
    M. was not a known prostitute. He said that he did not charge the defendant in B. M.’s case because
    the victim was afraid of the defendant and did not want to proceed with a prosecution. The record
    contains a request from the KPD for a comparison of the defendant’s hair and blood samples with
    B. M.’s rape kit. Detective Pressley stated that he did not know where the results of that comparison
    were.
    The defendant argues that A. P., a German tourist raped in the Bluff Mountain area of Sevier
    County, is the foreign girl that Kyle confessed in his statements to raping. The defendant refers us
    to the November 20, 1991 statement of Lea Mynear, who aided A. P. after the rape. Ms. Mynear
    said that A. P. described her attacker as being in his mid-thirties; having short blonde hair, a beard,
    and blonde body hair; and driving a beige or cream-colored truck. She said that A. P. said the man
    was wearing a necklace, which she described as a claw holding a crystal orb on a leather or cloth
    cord. She said that A. P. told her that the man was giving A. P. a ride to the Smoky Mountains
    -73-
    National Park when he stopped the truck and dragged A. P. into woods. She said that A. P. told her
    that the man removed A. P.’s and his clothes, tied A. P.’s hands with her necklace, raped A. P. orally
    and vaginally, repeatedly called her a “whore,” and asked her to call him “master.” Ms. Mynear said
    that A. P. stated that the man told her that she would get off easier if she didn’t fight like the others
    who ended up with broken teeth and cuts all over.
    The record also contains a report by Detective Mark Turner, who met the victim and Lea
    Mynear at the Sevier County Medical Center on November 20, 1991. In the report, Detective Turner
    relates Ms. Mynear’s account of what the victim told her about the offenses. This account
    substantially conforms to Ms. Mynear’s statement except that it relates that the victim told Ms.
    Mynear that the perpetrator performed oral and anal sex on her and then forced her to perform oral
    sex on him. Ms. Mynear also told the detective that the victim said the perpetrator picked her up at
    the Greyhound Bus Terminal in Knoxville. The report also states that the victim described her
    attacker as a well-groomed man in his mid-thirties with blonde hair and a blonde beard. She states
    that he was approximately five feet, eight inches tall and weighed approximately 200 pounds. The
    report states that a sexual assault evidence collection kit was taken on the victim.
    Agent David Davenport testified that before the defendant’s statements, the defendant was
    a suspect in A. P.’s case because he lived in Sevier County, A. P. was a transient, and A. P. was
    picked up on Magnolia Avenue. Agent Davenport said that he did not know the results of the
    comparison of the samples from Billy Foster with A. P’s rape kit or if A. P. ever identified the
    defendant in a photograph array. Lieutenant Larry Johnson testified that after speaking with a
    captain from the Sevier County Sheriff’s Department, it was his understanding that A. P. had
    identified the defendant from a photograph array.
    Also with regard to A. P., the defendant cites to a search warrant requesting blood and hair
    samples from Billy Foster, who is described as weighing 160 to 180 pounds; being five feet and six
    or eight inches tall, and having light reddish-brown, shoulder-length hair and a light reddish-brown
    beard. The samples were to be compared to the A. P.’s rape kit. Citing only to this search warrant,
    the defendant claims that he was excluded as the perpetrator in this case. In a hearing following the
    consolidated rape trial, Lieutenant Johnson stated that he did not believe that any laboratory work
    regarding the defendant was done on A. P.’s samples. Without introducing the laboratory reports,
    the defendant argued in another hearing that laboratory tests neither included nor excluded him as
    the perpetrator in A. P.’s case.
    On November 5, 1992, T. M. gave a statement to Detective Dan Stewart concerning one of
    the victims in the murder case. T. M. stated that about two years earlier, she was working as a
    prostitute and went with a man to his apartment, which contained numerous small statues of
    elephants. The man forced her at knife point to disrobe and attempted to tie her hands behind her
    back. He pulled her hair and forced her to perform oral sex. When he laid down his knife, she threw
    it out an open window, grabbed her clothes, and ran out the door. The statement reflects that T. M.
    identified an individual in a photograph array as her attacker, but it does not give the identity of the
    person identified. Lieutenant Johnson testified that although the array that T. M. viewed contained
    -74-
    the defendant’s picture, he did not know if it was in the fourth position. He stated that he did not
    know what became of the array in T. M.’s case but that the defendant was not charged in that case.
    On October 29, 1992, B. B. gave a statement relating to the murder investigation. She stated
    that on September 2, 1991, Fred Allen Sexton picked her up at the bus station on Magnolia Avenue,
    took her to Jefferson County, and raped her when she refused to smoke cocaine with him. She stated
    that he pulled her to the back of the van by her neck, strangled her, took her clothes off, forced her
    to perform oral sex, and had sexual intercourse with her. She said that he told her he was going to
    kill her. She said that when she regained consciousness, she jumped from the van and ran away. She
    described Sexton as white and in his early thirties and stated that she thought Sexton suspected her
    of telling the police that his cousin sold drugs. She said that she knew two other women who had
    been taken to the murder crime scene, raped, and beaten. She said that they had said their perpetrator
    had been arrested.
    The defendant claims that his DNA had been compared in other cases and that he had been
    excluded as the perpetrator. To support this contention, he refers us to the two-inch-thick notebook
    discussed above in Issue VI on discovery. Our review of the materials in the binder does not reveal
    any comparison of the defendant’s DNA with that of T. S., B. M., A. P., T. M., or B. B. In fact, the
    meager evidence in the record relating to these other rapes reveals that samples were collected only
    from T. S., B. M., and A. P. The record does contain requests from the KPD to the FBI for a
    comparison of the defendant’s DNA with the rape kits of T. S. and B. M., but the defendant has not
    cited, nor have we discovered, the results of those comparisons. Additionally, although the
    defendant does not cite to results from or a request for a comparison of his DNA with A. P.’s rape
    kit, we note that during argument in a September 16, 1996 hearing, he argued that the results of such
    a comparison neither included nor excluded him as the perpetrator.
    The state argues that these rapes are not similar to the offenses in the first rape trial because
    none of these victims were snatched off the street or taken to a barn, nor was a firearm used in these
    offenses. It also argues that the victims’ hands were not tied in these offenses, but we note that T.
    S. did say her hands were tied and that T. M. said her attacker attempted to tie her hands. The
    defendant argues that these rapes are just as similar as those offenses in the consolidated rape trial.
    He also notes that the police investigated these cases while investigating the defendant. We agree
    with the state that these other rapes were dissimilar to the facts of the first rape case. We conclude
    that they are not material to the first rape trial.
    (2) Agent Davenport’s Memoranda
    The defendant contends that the state withheld memoranda by TBI Agent David Davenport.
    In the open-file discovery following the consolidated rape trial, the defendant received the typed
    summaries of the notes of Agent Davenport. The notes included in the record state that Agent
    Davenport met with the defendant in the Knox County Jail and advised him of his rights but that the
    defendant declined to speak with the officers and wanted a lawyer. Without further explanation, the
    -75-
    defendant contends that these notes were favorable to his decisions on his mental defense and to his
    motion to suppress his statements.
    The defendant also argues that Agent Davenport’s November 10, 1992 memorandum, also
    disclosed after the consolidated rape trial, was exculpatory. The memorandum reveals that an
    assistant district attorney had asked Agent Davenport to be available to serve indictments on the
    defendant to see if the defendant would talk with the agent. The defendant contends that this
    information is relevant to the suppression of his statements because it is proof that the assistant
    district attorney directed an officer to reestablish contact with him after he had requested a lawyer.
    The defendant speculates that if the trial court had suppressed the statements and the evidence gained
    in the search of his home before the first rape trial, “then the capital murder cases were gone.” He
    argues that if the murder cases had not been pending, then he might have agreed to be evaluated by
    the court-appointed expert before the first rape trial and had an insanity defense to present in that
    case. He asserts that he might have also agreed to consolidate all of the rape cases.
    Neither the defendant’s statements nor a mental defense were used in the first rape trial.
    Thus, Agent Davenport’s notes and memorandum are not material to the first rape trial. Moreover,
    the defendant’s contentions that he might have agreed to a mental evaluation or to consolidate all
    of the rape cases are speculative at best and fall far short of undermining our confidence in the
    verdict in the first rape trial.
    (3) “Who is Kyle” Note
    During the suppression hearing in the consolidated rape trial, the defendant discovered a note
    that was given to Correctional Officer Terry Birnbaum by the defendant. The note reads as follows:
    Who is Kyle? Kile?
    Time Loss? How Much? today? And Kyle?
    I’m told Kyle Hates me? Why?
    I was told they wanted to talk to Kyle & not me!
    I’m told that “Kyle” said he killed 4 wemon! [sic] Raped
    Many others?
    Trying to trap me! Why??
    Am I 2 people??? more??
    I know not one of these wemon [sic] I saw in Photos!
    Who is Kyle? Kile? Me???
    Why does he hate Me?
    The trial court ruled that although it understood the state’s argument that it did not intend to
    introduce the unsigned note and that it had no proof that it bore the defendant’s handwriting, the state
    should have disclosed the note to the defendant. It then stated that the defendant had the note at that
    time and directed the parties to move on with the proceedings.
    -76-
    The defendant contends that this note was favorable to his insanity defense and his attempt
    to suppress his statements. He argues that it was critical for him to know all of the evidence
    supporting his insanity defense before the first rape trial because if he determined that his only
    defense was insanity, then he might have agreed to consolidation of all the rape cases. The state
    contends that trial strategy is not relevant to a Brady claim. It also argues that the notes are not
    material or favorable to the defendant because the statements were not introduced in the first rape
    trial.
    In discussing the standard for materiality in the Brady analysis, the United States Supreme
    Court has noted that a standard that focused on the withheld evidence’s affect on the defendant’s
    ability to prepare for trial would be unworkable in part because “knowledge of the prosecutor’s
    entire case would always be useful in planning the defense.” United States v. Agurs, 
    427 U.S. 97
    ,
    112 n.20, 
    96 S. Ct. 2392
    , 2401 n.20 (1976). Instead, as stated above, we must determine whether
    the absence of the withheld evidence undermines our confidence in the verdict. Neither the
    statements nor the insanity defense were used in the first rape trial, and thus, the “Who is Kyle?”
    note was not material.
    (4) Statement of Sherry Ball
    The defendant contends that the state should have provided the statement of Sherry Ball, his
    ex-wife, in which she describes the defendant as having a “split personality” because he would be
    nice and calm and then become angry within an expanse of one minute. Although not entirely clear,
    the defendant apparently argues that this statement was favorable to his insanity defense. Because
    the defendant did not present an insanity defense in the first rape trial, this statement was not material
    in that case.
    (5) Notes of Detective Mike Freeman
    The defendant contends that the state should have disclosed Detective Mike Freeman’s notes,
    which reveal that one of the murder victims was killed while the defendant was in jail. The notes
    state, in pertinent part, that a doctor, who’s name is illegible, “preliminary sez [sic] vict. has not been
    at location more than 1 or 2 days.” The defendant summarily argues that this information was
    exculpatory because it shows that his confessions are false and that someone else was committing
    crimes similar to the ones with which he was charged. He also suggests in passing that the murders
    were potential Rule 404(b), Tenn. R. Crim. P., evidence in the first rape trial. The state contends that
    the defendant fails to explain how this information, which was only a preliminary finding, was
    material to the first rape case. We agree with the state that evidence of the murders was not
    introduced in the first rape trial and, therefore, was not potential Rule 404(b) evidence. Detective
    Freeman’s notes are not material to the first rape trial.
    B. Consolidated Rape Trial
    -77-
    The defendant contends that the state withheld the following exculpatory evidence in the
    consolidated rape trial: (1) the rape complaints of other victims alleging conduct similar to the
    offenses in the consolidated cases and a description that fit the defendant, who was subsequently
    excluded as the perpetrator, (2) Agent Davenport’s memorandum, and (3) TBI and FBI laboratory
    reports.
    (1) Other similar rape complaints.
    The defendant contends that the state withheld evidence of the rapes of B. M., A. P. and Lea
    Mynear, who described similar conduct by a person fitting his description. He states that he was
    excluded as the perpetrator of these other rapes. He argues that this evidence was material to his
    opposition to the state’s motion to consolidate to show that the offenses were not signature crimes
    as the state alleged. He also argues that the fact that he was excluded in the rape of A. P. shows that
    his statements are false and unreliable. The state argues that the defendant does not explain how
    these rapes are similar, nor does he cite to support for his claim that he was excluded as the
    perpetrator. It also argues that the evidence does not exculpate the defendant with regard to the
    consolidated rape offenses, nor is it impeachment evidence in those cases.
    Initially, we note that the record reflects that Ms. Mynear was not a rape victim but, instead,
    was the person who aided A. P. after she was raped. Ms. Mynear’s statement, relating what A. P.
    told her about the offenses against her, is related above. We have already described the evidence
    relating to the rapes of B. M. and A. P. Additionally, although the defendant does not mention the
    state’s failure to provide the statements of A. R. in this issue, he does challenge the state’s failure
    to provide A. R.’s statement before the consolidated rape trial in Issue VI on discovery. In light of
    our analysis on the discovery issue, we will also review the evidence relating to A. R.
    On October 21, 1992, A. R. gave a statement to Detective Mike Upchurch, who was
    investigating the murder cases. After describing her attempt to find one of the murder victims, who
    was her friend, A. R. stated that about one month before the interview, she encountered a man
    driving a small yellow pickup truck on Magnolia Avenue around 1:00 or 2:00 p.m. She said that the
    man asked about P. J., a prostitute who frequented the Magnolia Avenue area. She said that she felt
    more comfortable with him because he knew P. J. and that he offered her around $75 for oral and
    vaginal sex, which she thought was a lot of money in light of the fact that he did not know her.
    A. R. said that the man drove her to a dead end road in a wooded area where she believed that
    the murder victims were later found. She said that they got out of the truck and he insisted that she
    remove her clothing. She said that although she did not want to take off all of her clothes because
    her ankle was in a splint, she did so because she could tell that the man was getting “edgy.” She said
    that the man tied her hands behind her back with a two-foot length of smooth, off-white, braided
    cord. She said that he did not have a weapon and that he told her that she would not be hurt unless
    she tried to fight or untie herself. She said that he made her walk several hundred yards into the
    woods where he forced her to perform “all different kinds of sex.” She said that the man had track
    -78-
    marks on the inside of his wrist and that she believed him to be an intravenous drug user. She said
    that he slapped her face and punched her in the chest, breaking a couple of her ribs.
    A. R. said that after an hour, the man questioned whether he should let her go because she
    could have him arrested. She said that she assured him that she would not contact the police and that
    he said she would go to the graveyard if she did. She said that he left her in the woods and told her
    to stay there until she could no longer see him. She said that when she finally found her way out of
    the woods, the man drove away and that she saw the license tag on his truck. She said that in
    addition to raping her, the man took fifty dollars from her shoe. She said that when she saw a picture
    of the man before the interview, she immediately recognized him. The record does not reflect who
    showed A. R. the picture or the identity of the person in the picture.
    With regard to the suppression of his statements, again we hold that the evidence relating to
    other rapes is not material because the statements were not used. As for the defendant’s argument
    that he could have used this evidence to oppose the consolidation of the cases in the second rape
    trial, we conclude that the rapes of A. P. and B. M. were not similar to the offenses in the
    consolidated rape case. The record does not reflect that A. P. or B. M. were prostitutes and neither
    were taken to Cahaba Lane or to the barn at Chilhowee Park. Furthermore, the record does not
    support the defendant’s contention that he was excluded as the perpetrator in these cases. Detective
    Pressley testified that the defendant was not charged in B. M.’s case because she was afraid of him
    and did not want to press charges. With regard to A. P., although the record contains evidence that
    another person, Billy Foster, was pursued as a suspect in A. P.’s case, Lieutenant Johnson testified
    that he believed that A. P. also identified the defendant’s picture from a photograph array. With
    regard to A. R.’s case, we can understand how the defendant would deem her statement relevant.
    On the other hand, nothing in her statement undermines our confidence in the jury’s verdict in the
    consolidated rape trial so as to make it material.
    (2) Agent Davenport’s Memorandum
    The defendant again contends that the state should have disclosed Agent Davenport’s
    memorandum that stated that an assistant district attorney wanted Agent Davenport to serve
    indictments on the defendant to see if the defendant would talk. The defendant argues that this
    memorandum contradicts the testimony of Lieutenant Larry Johnson that he did not serve the capias
    as a pretext to get the defendant to talk and that it was a coincidence that Agent Davenport
    accompanied him to serve the capias. The trial court did not suppress the statements in the
    consolidated rape trial because it found that the defendant initiated contact with the officers, who
    were properly serving the capias. The defendant argues that the withheld memorandum shows that
    the assistant district attorney intentionally violated his right to counsel. We agree with the state that
    Agent Davenport’s memorandum might have been relevant had the statements been introduced at
    trial but that the memorandum itself is not exculpatory nor does it have any impeachment value
    outside of the context of the suppression of the statements. Thus, the memorandum is not material
    to the consolidated rape trial.
    -79-
    (3) TBI and FBI Laboratory Reports
    The defendant summarily contends that the state withheld exculpatory TBI and FBI
    laboratory reports and other impeaching materials until after the rape trials. Citing only to the black
    notebook discussed in Issue VI on discovery, he argues that all of the TBI and FBI tests were
    exculpatory because no fibers or soil from Cahaba Lane matched his clothes or cars. He argues that
    the tests revealed no matching fingerprints and that DNA tests excluded him as the perpetrator of
    crimes similar to those charged. The state contends that the tests cited by the defendant do not
    appear to be related to the consolidated rape cases. It argues that the record does not reflect that any
    samples were obtained in conjunction with the consolidated rape cases and that no reason exists to
    believe that these laboratory reports are exculpatory or material in this case.
    As discussed in Issue VI, the state should have disclosed the FBI and TBI reports under Rule
    16(a)(1)(D) because they contained the results of scientific tests that were material to the preparation
    of the defendant’s defense. Nevertheless, we have already concluded that the state’s failure to
    disclose the reports was harmless due to the passage of time between the last of the consolidated rape
    offenses on October 5, 1992, and the defendant’s October 21, 1992 arrest and the fact that the reports
    cited by the defendant do not reveal that the fingerprints taken from his vehicle were ever compared
    to those of the rape victims. Furthermore, our review of the notebook does not reveal that it contains
    any comparisons of the defendant’s DNA with that of any surviving rape victim. The defendant has
    failed to show by a preponderance of the evidence that the FBI and TBI reports are sufficiently
    exculpatory to the consolidated rape case so as to undermine our confidence in the verdict.
    VIII. HEARING OF PRETRIAL MOTIONS
    The defendant asserts that he was not able to prepare his defenses properly in both trials
    because the trial court refused to rule on certain motions until the day of trial. He contends that the
    trial court denied him due process of law by not ruling on all of his pretrial motions relating to all
    of his cases before the rape trials. The state contends that the trial court did not commit reversible
    error by refusing to rule on the defendant’s motions at the precise time that the defendant requested.
    We conclude that the defendant has failed to show that he suffered any prejudice from the timing of
    the trial court’s rulings on his various motions.
    Rule 12(e), Tenn. R. Crim. P., provides in pertinent part that a
    motion made before trial shall be determined before trial unless
    the court, for good cause, orders that it be deferred for
    determination at the trial of the general issue or until after the
    verdict, but no such determination shall be deferred if a party’s
    right to appeal is adversely affected.
    The rationale behind Rule 12(e) is to avoid inconveniencing the jury and witnesses; to apprise both
    parties of the evidence admissible at trial, which might affect plea negotiations or trial strategy; and
    -80-
    to preserve the state’s right to appeal an adverse ruling. State v. Aucoin, 
    756 S.W.2d 705
    , 709
    (Tenn. Crim. App. 1988); State v. Feagins, 
    596 S.W.2d 108
    , 110 (Tenn. Crim. App. 1979). In light
    of these purposes, this court has interpreted “before trial” in Rule 12(e) to mean “sometime earlier
    than the day the trial is to commence.” Aucoin, 756 S.W.2d at 709. If “the defendant asks for a
    hearing prior to trial, but the trial judge refuses to grant the defendant a hearing, the trial judge
    commits error unless the record reflects good cause for deferring the hearing on the motion.” Id.
    A. The First Rape Trial
    The defendant states that although he appeared in court on several occasions ready to argue
    and present proof on his motions, the trial court chose, at the state’s urging, to defer hearing motions
    until the day of trial. He argues that the trial court’s refusal to hear motions until the day of trial
    simply because that was the court’s traditional practice was an insufficient reason to deny him
    rulings necessary to prepare his defense. He speculates that the delayed rulings were part of the
    state’s plan to force him to plead guilty before he had sufficient information to make informed
    decisions. He contends that by delaying rulings until the day of trial, the trial court violated his rights
    to due process, a fair trial, and the effective assistance of his counsel. The state contends that the
    defendant fails to specify which motions the trial court refused to hear or to explain how he was
    prejudiced by the timing of the court’s rulings.
    We agree with the state that the defendant’s general references to motions filed pretrial but
    not ruled upon until the day of trial are insufficient to support his argument. See T.R.A.P.
    27(a)(1)(7). In his reply brief, the defendant refers us to his summary of all of the pretrial
    proceedings located in the procedural facts in his brief. The only specific contentions regarding how
    he was harmed by the allegedly belated rulings are his assertions that the state was able to show the
    jury a photograph of him, a photograph array with the word “homicide” on the back, some rope, and
    some previously undisclosed pictures without him having the benefit of the trial court’s rulings
    regarding Rule 12, Tenn. R. Crim. P., or Rule 104, Tenn. R. Evid., on this evidence. The defendant
    does not state the nature of the undisclosed pictures, nor do his references to the record relate to any
    undisclosed pictures. We will address the defendant’s contentions only with regard to the specific
    allegations of prejudice concerning his photograph taken at the time of his arrest, the photograph
    array from which the victim identified him, and a piece of rope identified by the victim as the rope
    that the defendant used to bind her during the offenses.
    On the day trial was to begin but before the jury was selected, the trial court denied the
    defendant’s motion to suppress his photograph taken at the time of his arrest and placed in a
    photograph array from which the victim identified him as her attacker. Without addressing the
    question of whether the trial court had good cause to defer ruling on this issue and assuming that the
    trial court should have ruled upon this issue before the day of trial, we conclude that the defendant
    suffered no prejudice from the belated ruling. As discussed in Issue III on suppression of the
    evidence stemming from the defendant’s arrest and Issue XXIV relating to the admissibility of the
    defendant’s photograph and the photograph array in the first rape trial, the defendant was not entitled
    to suppression of this photograph. With respect to the photograph array from which the photograph
    -81-
    was removed, as we previously note, the record contains no evidence that the jury saw the word
    “homicide” written on the back of the array. The defendant is not entitled to relief.
    With respect to the rope, the state asked the victim to identify a piece of rope. The defendant
    objected that the state had not laid a proper foundation nor proven the chain of custody with respect
    to the rope and that the rope was more prejudicial than probative. He also stated that the rope was
    the subject of a motion to suppress that had not been ruled upon before trial, but he did not give the
    basis upon which the rope should have been suppressed. The trial court ruled that the rope was
    admissible through the victim if she could identify it. We are unable to determine that the defendant
    attempted to suppress this rope before trial. He did file a motion to suppress evidence gained in the
    search of his home following his arrest and, as we note in Issue III on the propriety of defendant’s
    arrest and the search of his home, rope was taken from the defendant’s bedroom floor pursuant to
    that search. The rope at issue in the first rape trial was taken from the stall in the barn in which the
    victim was raped. We can discern no error with respect to the timing of the trial court’s rulings on
    the piece of rope from the barn stall.
    B. Consolidated Rape Trial
    The defendant asserts that the trial court failed to rule on the state’s motion for a mental
    evaluation until the eve of trial and did not rule until after the consolidated rape case on his motions
    for dismissal due to the violation of his right to a speedy trial, severance of the murder cases, or a
    new trial in the first rape case. He also states generally that the trial court failed to rule on numerous
    motions relating to the homicide cases before the consolidated rape trial. He contends that the delay
    in ruling prevented him from incorporating the rulings into his theory of defense. The state argues
    that the defendant has failed to show that he was prejudiced by the timing of the trial court’s rulings.
    The defendant argues that the trial court’s failure to order him to submit to a mental
    examination until three days before trial precluded the opportunity for a meaningful mental
    evaluation and ultimately resulted in the striking of his insanity defense. Initially, we note that the
    trial court ruled upon this issue on May 9, 1996, several days before the May 13, 1996 trial date,
    thereby complying with Rule 12(e). As discussed in detail in the next issue relating to the limitation
    of the defendant’s insanity defense, the trial court ordered Dr. Clifton Tennison to examine the
    defendant, but Dr. Tennison found that he lacked sufficient experience and expertise to complete the
    examination. On May 9, 1996, the trial court ordered that the defendant be examined by Dr. Phillip
    Coons. The defendant refuse to submit to this examination because he objected to Dr. Coons. As
    noted by the state, the defendant’s primary objection to the mental examination was unrelated to the
    timing of the court’s order. Furthermore, as discussed in the next issue, the delay in reaching the
    mental examination issue was largely due to the numerous motions that the trial court had to address.
    We can discern no error.
    Citing to five volumes of transcript from the hearings preceding the murder trial, the
    defendant states that the trial court failed to rule before the consolidated rape trial on over fifty
    motions relating to the murder cases that had been pending since 1994. He summarily argues that
    -82-
    the lack of rulings on these numerous motions affected his ability to make informed decisions about
    his defenses in the consolidated rape trial. Without stating which motions would have enhanced his
    ability to make decisions regarding the mental evaluation, he also contends that the inability to make
    meaningful decisions resulted in the striking of his right to offer expert testimony on insanity in the
    consolidated rape trial. We deem these contentions too general to review. As with the first rape
    trial, we will address only the specific motions that the defendant offers as examples in his brief.
    The defendant argues that he was prejudiced by the trial court’s failure to rule on his motion
    for a speedy trial until December 1998 because, as time passed, the amount of time and money
    invested in his trials placed pressure upon the trial court not to dismiss his cases for denial of a
    speedy trial. The state contends that the defendant is not entitled to relief on this issue because he
    told the trial court that he was not pursuing a motion for speedy trial in the rape cases but only in the
    murder case. As discussed in Issue II relating to the violation of the defendant’s right to a speedy
    trial, the defendant moved to dismiss the charges against him for a denial of a speedy trial on April
    29, 1996, three weeks before the consolidated rape trial. Although the motion only requested the
    dismissal of the homicide case, the defendant argued that his demand for a speedy trial in the
    homicide case necessarily meant that he was also demanding speedy trials in the rape cases, which
    were to be tried before the homicide case. The trial court considered this argument on May 9, 1996,
    and stated that the defendant’s motion to dismiss would apply to all of his cases. On December 12,
    1998, the trial court denied the defendant’s motion to dismiss in an order that on its face relates to
    the homicide cases. Assuming that the trial court should have ruled on this issue before the
    consolidated rape trial, we conclude that its failure to do so is harmless in light of our holding in
    Issue II that the defendant was not denied his right to a speedy trial in either of the rape cases.
    The defendant contends that the trial court erroneously deferred its ruling on his motion to
    sever the murder charges before the consolidated rape trial. He argues that he suffered prejudice
    from this delay because the state could have introduced evidence of the murder cases as Rule 404(b)
    evidence, on cross-examination, or on rebuttal during the consolidated rape trial. He also argues that
    had he prevailed on his motion to sever, he could have used this as a basis to exclude his statements
    in the consolidated rape trial because evidence of the different murders was intertwined in the
    statements. We agree with the state that the defendant has failed to show any harm from the trial
    court’s failure to rule on this motion pretrial. Neither evidence of the murder cases nor his
    statements were introduced in the consolidated rape case. Furthermore, the defendant ultimately
    failed to prevail on his motion to sever the murder charges.
    Finally, in his reply brief, the defendant notes in passing that the trial court erroneously failed
    to rule on his motion for a new trial in the first rape case before the consolidated rape trial. Other
    than the general assertions discussed above, he gives no explanation of how he was prejudiced by
    the trial court’s failure to rule upon this motion before the consolidated rape trial. Furthermore, we
    note that the defendant amended his motion for a new trial in the first rape case five times after the
    consolidated rape trial and that, ultimately, the trial court denied his motion for new trial in the first
    rape case, relying primarily upon the rulings it made during the rape trials themselves. We cannot
    conclude that the defendant is entitled to relief on this issue.
    -83-
    IX. LIMITATION OF INSANITY DEFENSE
    The defendant contends that the manner in which the trial court conducted the mental
    evaluation process in both trials violated his rights to present a defense and to due process of law.
    He argues that the trial court erroneously excluded defense experts on the defendant’s mental
    condition in both trials and the insanity defense in the first rape trial. The state contends that the trial
    court properly excluded the testimony of defense experts on the defendant’s mental condition
    because he refused to comply with the trial court’s orders that he undergo a mental evaluation by a
    court-appointed expert. The defendant insists that in order for any waiver of the insanity defense to
    be valid, he had to refuse to undergo the evaluation personally, either orally or in writing. We
    believe that the trial court properly sanctioned the defendant in both cases.
    A defendant seeking to present an insanity defense or expert testimony of his or her mental
    condition as it relates to guilt must notify the district attorney general in writing within the time
    provided for pretrial motions. Tenn. R. Crim. P. 12.2(a), (b). Rule 12.2(c) permits the state to seek
    a mental evaluation of the defendant by a court-appointed expert:
    In an appropriate case, the court may, upon motion of the district
    attorney, order the defendant to submit to a mental examination
    by a psychiatrist or the other expert designated for this purpose
    in the order of the court. No statement made by the defendant in
    the course of any examination provided for by this rule, whether
    the examination be with or without the consent of the defendant,
    no testimony by the expert based upon such statement, and no
    other fruits of the statement shall be admitted in evidence against
    the defendant in any criminal proceeding except for impeachment
    purposes or on an issue respecting mental condition on which the
    defendant has introduced testimony.
    The purpose behind Rule 12.2(c) is “to provide the prosecution with a means to obtain necessary
    information to rebut evidence of mental condition presented by the defendant, while at the same time
    safeguarding the defendant’s right against self-incrimination.” State v. Huskey, 
    964 S.W.2d 892
    ,
    889 (Tenn. 1998). If the defendant fails to give notice or refuses to submit to a court-ordered
    examination, “the court may exclude the testimony of any expert witness offered by the defendant
    on the issue of the defendant’s mental condition.” Tenn. R. Crim. P. 12.2(d). The court may also
    sanction the defendant by precluding the insanity defense. Huskey, 974 S.W.2d at 896.
    The following factual overview of the mental evaluation process in the defendant’s cases is
    taken from our supreme court’s opinion stemming from the defendant’s interlocutory appeal of the
    trial court’s Rule 12.2(c) orders in the homicide case:
    In March and April of 1994, Huskey filed notice of his
    intent to use expert testimony with regard to a mental condition
    -84-
    and to rely on an insanity defense with respect to all the cases.
    When the State filed a motion to compel Huskey to undergo a
    mental examination under Rule 12, Huskey moved for a
    protective order requiring, among other things, that counsel and
    a defense expert be permitted to attend the examination and that
    the examination be recorded. Huskey argued that these measures
    were necessary to preserve his right to counsel and his right
    against self-incrimination.
    The trial judge, Judge Ray Lee Jenkins, denied the motion
    for a protective order and entered three written orders in all cases
    compelling Huskey to undergo a mental examination at the Helen
    Ross McNabb Mental Health Center in Knoxville. Although
    orders were entered on May 17, 1994, May 8, 1995, and May 11,
    1995, no examinations were conducted because the defense
    refused. Judge Jenkins later ruled that because of the refusal to
    be examined, the defense could not rely on an insanity defense or
    introduce expert testimony as to a mental condition in [the first
    rape case], which was finally tried in October of 1995. Huskey
    was convicted of rape and related offenses.
    With regard to [the consolidated rape case and the homicide
    case], more hearings were held on the mental examination issues
    in February, April, and May of 1996. On May 2, 1996, Judge
    Baumgartner ordered that Huskey was to be examined by Dr.
    Clifton Tennison at the McNabb Mental Health Center. After a
    two-hour interview with Huskey, Tennison reported to the trial
    court that he needed more sessions with Huskey, additional
    background information, and also “someone with substantive
    experience and demonstrated expertise,” specifically in the field
    of disassociative identity disorder.
    The trial court instructed Tennison to inquire into the
    availability of additional experts in the field after finding that
    someone with further expertise and experience was necessary to
    effectively complete the examination:
    [Dr. Tennison] advised us that due to the nature of the
    illness that Mr. Huskey may suffer from, that he felt
    that he was not personally capable of providing the
    Court with the best evaluation that could be
    accomplished. And that he felt the appropriate thing
    for him to do within the discipline that he’s an expert
    -85-
    in is to employ the services of an individual who was
    more qualified, had more experience, [and] had
    studied in this specific area of disassociative identity
    disorder.
    At a later hearing, Tennison related the qualifications and
    experience of several experts in the field of disassociative identity
    disorder, including Dr. Phillip Coons, a psychiatrist in Indiana
    who had been brought to Tennison’s attention by the prosecution.
    On May 9, 1996, the trial court ordered in all the cases that
    Huskey be examined by Tennison and Coons. The order required
    the examination to be recorded but stated that no one could be
    present during the examination unless approved by Tennison and
    Coons. The order required counsel for the State and the defense
    to make available Huskey’s medical records, employment
    records, school records, psychological/psychiatric records, and
    witnesses with knowledge of Huskey’s conduct. The order stated
    that upon completion of the examination, the defense would have
    “a reasonable period” in which to decide whether it intended to
    proceed with an insanity defense or evidence respecting a mental
    condition; if it did, the State would be provided with the
    “evaluation and test results from the examination.”
    Huskey objected to the participation of Coons, and argued
    that the order violated his right to counsel, right against
    self-incrimination, and right to due process. With regard to the
    four capital cases, the trial court granted Huskey’s request for an
    interlocutory appeal of the May 9, 1996 order pursuant to Tenn.
    R. App. P. 9. After the Court of Criminal Appeals denied the
    appeal, [the Supreme Court] granted Huskey’s application for
    permission to appeal . . ., finding that review of the May 9th order
    prior to conducting the examination would provide guidance to
    the trial court on these issues and avoid the possibility of serious
    errors that potentially would require retrials of four complex
    capital cases.
    Huskey, 974 S.W.2d at 893-94 (footnotes omitted).
    The defendant refused to submit to the May 9, 1996 order, and pursuant to Rule 12.2.(d),
    Tenn. R. Crim. P., the trial court precluded him from presenting expert testimony regarding his
    mental condition in the consolidated rape trial. Following the consolidated rape trial in May 1996,
    -86-
    the trial court entered an order for a mental evaluation in the homicide case on August 12, 1996,
    which superceded the May 9, 1996 order. This order directed Middle Tennessee Mental Health
    Institute (MTMHI) to examine the defendant and prohibited defense counsel from attending the
    examination but did not mandate that defense counsel disclose records or witnesses. Instead, the
    order encouraged the parties to cooperate with MTMHI’s information requests “subject to the
    attorney-client or other applicable privileges.” The supreme court held that the May 9, 1996 and
    August 12, 1996 orders did not violate the defendant’s right against self-incrimination or right to
    counsel. Id. at 897-98.
    A. The First Rape Case
    The defendant contends that the trial court’s striking of his insanity defense in the first rape
    case violated his constitutional rights to present a complete defense and to due process. He asserts
    that he did not have a meaningful opportunity to comply with the trial court’s order for a mental
    examination before the trial court imposed sanctions and that he did not personally refuse to undergo
    the examination. He also challenges the harshness of the trial court’s sanction, arguing that Rule
    12.2(d) does not permit the striking of his insanity defense but only his expert testimony and that his
    constitutional right to present a defense trumps the state’s procedural right to seek a mental
    examination. Finally, he argues that the trial court arbitrarily denied his subsequent motion for a
    mental examination, which was made over forty-five days before the trial began on October 18,
    1995. The state contends that the trial court properly imposed Rule 12.2(d) sanctions after the
    defendant repeatedly refused to comply with its orders. It argues that the record does not reflect that
    the trial court struck the insanity defense as opposed to expert testimony, but striking the entire
    defense was within the trial court’s authority.
    In order to address the defendant’s contentions, we begin by reviewing the tangled Rule 12.2
    proceedings in the first rape case in some detail. As noted above, on March 3, 1994, the defendant
    filed notice pursuant to Rule 12.2(b) of intent to use expert testimony relating to his mental
    condition bearing upon guilt. By written motion on April 7, 1994, and orally at an April 8, 1994
    hearing, the state moved that the defendant undergo a mental examination pursuant to Rule 12.2(c).
    On April 15, 1994, the defendant filed a Rule 12.2(a) notice of intent to rely upon the insanity
    defense. On April 26, 1994, the defendant moved for a protective order, requesting that counsel and
    defense experts be present at the examination, that the examination be recorded, that only one
    examination be conducted by a single examiner, and that the trial court impose controls on the
    release of any information gathered in the process and not release any information to the state until
    such time as it becomes relevant for impeachment or rebuttal. On April 27, 1994, the trial court
    denied the defendant’s motion for a protective order and denied his request for an interlocutory
    appeal of the issue. The court directed the state to prepare an order for a mental examination. On
    May 17, 1994, the trial court entered an order directing that the defendant be examined at the Helen
    Ross McNabb Center and overruling the defendant’s motions for a protective order. On December
    22, 1994, this court denied the defendant’s application for an extraordinary appeal on the trial court’s
    denial of a protective order.
    -87-
    On January 12, 1995, the state again asked the trial court to order the defendant to submit to
    a mental evaluation. The trial court agreed and asked the state to submit a written order. The
    defendant responded that he intended to apply for permission to appeal this court’s denial of his
    extraordinary appeal to the supreme court and believed that he had an agreement with the state not
    to “push” the mental examination matter. The trial court declined to listen to additional argument
    if the parties had nothing more of substance to add. The record does not reflect that the defendant
    pursued an appeal to the supreme court.
    On May 5, 1995, the court held a hearing on the state’s renewed motion for a mental
    examination of the defendant. The state asked the court to reenter its earlier order that the state could
    have the defendant examined. It noted that defense counsel had apparently instructed the defendant
    not to participate in an examination pending the extraordinary appeal on the protective order. The
    court agreed to reenter its order, noting that it had not permitted the conditions requested by the
    defendant. The defendant asked if the examination would be limited to the first rape case. The court
    agreed with the state that the earlier order for a mental examination applied to all cases. The
    defendant objected to the state learning his defenses in the other cases through a mental examination
    conducted in the first rape case. The parties and the court agreed that the May 15, 1995 trial date
    was no longer viable in light of the time needed for a mental examination.
    On May 8, 1995, by a written order entered in all cases, the court again ordered that the
    defendant submit to a mental examination and directed defense counsel to provide pertinent
    information to Helen Ross McNabb Center for the evaluation. On May 10, 1995, the defendant
    moved for a stay of the mental examination, noting that the state had informed him that Helen Ross
    McNabb Center would examine the defendant at the jail on May 11, 1995. The defendant objected
    to the court ordering the mental examination in all cases while proceedings on motions had been
    stayed in all cases except the first rape case. He also contested the standard questions asked by the
    Helen Ross McNabb Center as infringing upon the attorney-client privilege and renewed his
    previous objections to the examination. The motion states that in the event that the court denies
    relief, “counsel respectfully has no alternative but to invoke Mr. Huskey’s constitutional protections
    and decline to have the Defendant participate in an unlimited, uncontrolled mental examination at
    this time.” On May 11, 1995, the court entered a corrected order for mental examination, which did
    not contain the provision requiring defense counsel to provide information.
    On May 15, 1995, the state informed the trial court that on May 12, 1995, the defendant had
    refused to participate in a mental examination. It requested that the court exclude defense experts
    on mental condition under Rule 12.2(d) or hold defense counsel in contempt for their willful
    interference with the court’s order. The defense argued that it did not decline to participate in a
    mental examination but that disputes existed over whether the examination applied to all cases and
    over the scope and nature of the examination. The defendant contended that standard questions
    asked by the Helen Ross McNabb Center violated the attorney-client privilege. Defense counsel
    stated that he had written the center requesting certain conditions, and that the center had agreed to
    some of his requests. He stated that he had filed a motion for a stay the previous week but that the
    state had instructed the center to proceed with the examination. He said that he was aware that he
    -88-
    was risking the striking of the mental responsibility defense in this case but that the defense refused
    to participate in a mental examination that applied in the defendant’s other cases. The state reminded
    the court that it previously had ruled that the mental examination applied to all cases. The court
    noted that Rule 12.2(c) contained safeguards to protect information revealed by a defendant in a
    mental examination. The court struck defense experts regarding mental condition pursuant to Rule
    12.2(d).
    On September 1, 1995, the defendant moved the court to order a mental examination of the
    defendant pursuant to Rule 12.2. At a September 7, 1995 hearing, the court sustained its earlier Rule
    12.2(d) sanction. The defendant insisted that he was consenting to a mental examination at the May
    15, 1995 hearing but that the trial court had misunderstood. The court ordered a transcript of the
    May 15 hearing. On September 20, 1995, the court quoted the portion of the May 15 hearing in
    which it read Rule 12.2(d) striking the defendant’s experts. It stated that its May 15 ruling left no
    room for interpretation and that the defendant’s pending motion for a Rule 12.2 mental examination
    “comes too late.”
    The defendant contends that the trial court’s administration of the Rule 12.2 proceedings
    denied him the right to due process. He states that the trial court required him to file notice of intent
    to use mental defenses under Rule 12.2 in 1994 before he had received discovery in order to evaluate
    his defenses. Even if the defendant’s assertion were true, it would not entitle him to refuse to submit
    to a court-ordered mental examination and, as such, is not relevant to our review of the propriety of
    the limitation of his insanity defense in the first rape case. Furthermore, the record does not support
    his contention: In a December 15, 1993 discussion on scheduling discovery and motions, the state
    requested that the defendant file notices of defenses and notices relating to expert witnesses under
    the discovery rules by December 21, 1993, in order to facilitate the scheduling of any evaluations
    before the May 1994 trial date. The defense stated that it had no problem with the state’s request
    but asked that the deadline be December 24, 1993. The trial court agreed to that time frame. At a
    February 22, 1994 hearing, the defendant requested until March 3, 1994, to give “a notice of mental
    responsibility” in order that the defense could review discovery materials with its experts. The trial
    court said that the notice should be given as close to March 3, 1994, as possible as the trial date
    neared. The defense agreed it could do that by March 3, 1994. The defendant gave his 12.2.(b)
    notice on March 3, 1994, and his 12.2(a) notice on April 15, 1994. This course of events does not
    reveal that the defendant was forced to file his 12.2(a) and (b) notices prematurely.
    The defendant also contends that he did not have a meaningful opportunity to comply with
    the mental examination order before the trial court imposed sanctions on May 15, 1995. He states
    that he had no notice that the state would seek Rule 12.2(d) sanctions at the May 15 scheduling
    conference. He argues that he did not have a meaningful opportunity to oppose the sanctions. The
    record again belies the defendant’s contentions. The trial court ordered that the defendant undergo
    a mental evaluation on May 17, 1994, almost a year before it imposed sanctions. During that year,
    the defendant requested that the examination be conducted under certain conditions, which the trial
    court denied. The defendant failed in his efforts to obtain interlocutory and extraordinary appeals
    regarding the denied conditions. On May 8, 1995, and on May 11, 1995, the trial court again ordered
    -89-
    the examination. The defendant objected to the examination applying to all of his cases and to
    certain questions he believed the examiners would ask regarding his representation. The trial court
    heard and rejected the defendant’s arguments on these issues on May 5, 1995. The defendant’s May
    10, 1995 motion for a stay of the examination states that the state informed him that the examination
    would occur on May 11, 1995. The defendant continued to object to the terms of the examination
    even after the state proposed sanctions on May 15, 1995, and, in no uncertain terms, declined to
    submit to an examination that applied in all cases. Thus, the record reveals that the defendant was
    given a meaningful opportunity to submit to the mental evaluation after the trial court had ruled on
    his objections.
    The record also reveals that on May 15, 1995, the trial court again heard the defendant’s
    arguments regarding the conditions under which he would submit to an examination. The defendant
    stated that he was aware that he was risking sanctions by insisting upon the conditions. In light of
    the fact that the trial court had already denied these conditions in the May 5, 1995 hearing, we
    believe that the defendant had no reason to be surprised by the court’s imposition of sanctions. The
    defendant’s right to due process was not violated by the Rule 12.2 proceedings in this case.
    The defendant contends that the imposition of Rule 12.2(d) sanctions violated his
    constitutional right to present a defense because he did not personally refuse to submit to a mental
    evaluation. He argues that he had no personal knowledge of the rapidly evolving proceedings from
    May 5 through 15, 1995. He contends that the events of May 12, 1995, relating to his refusal to see
    Rick Sawyer, a forensic social worker from the Helen Ross McNabb Center, at the jail are disputed.
    Citing to State v. Ricky Thompson, No. 03C01-9406-CR-00198, McMinn County (Tenn. Crim.
    App. Jan. 24, 1996), app. denied (Tenn. July 1, 1996) (concurring in results only), he maintains that
    a defendant must willfully and deliberately refuse to submit to a mental examination before sanctions
    are warranted. He argues that no evidence exists that he personally, willfully, and deliberately
    refused the examination. He argues that at a minimum, he is entitled to notice, the right to be heard,
    and the presentation of evidence in order to resolve this dispute.
    We begin by noting that the imposition of Rule 12.2(d) sanctions to preclude the testimony
    of defense experts in the appropriate circumstances does not violate a defendant’s right to present
    a defense. See Taylor v. Illinois, 
    484 U.S. 400
    , 416, 
    108 S. Ct. 646
    , 656 (1988) (holding that the
    exclusion of a defense witness as a sanction for a discovery violation does not violate the defendant’s
    Sixth Amendment right to compulsory process, which embodies the right to present a defense); see
    also United States v. Nobles, 
    422 U.S. 225
    , 241, 
    95 S. Ct. 2160
    , 2171 (1975) (holding that the
    exclusion of the testimony of a defense investigator because the defendant refused to provide the
    state with the investigator’s “highly relevant” report did not violate the defendant’s Sixth
    Amendment rights to compulsory process and cross-examination). The United States Supreme
    Court has held that a trial court does not have to determine whether the defendant or defense counsel
    was at fault before imposing a sanction for a discovery violation:
    In responding to discovery, the client has a duty to be candid and
    forthcoming with the lawyer, and when the lawyer responds, he
    -90-
    or she speaks for the client. Putting to one side the exceptional
    cases in which counsel is ineffective, the client must accept the
    consequences of the lawyer’s decision to forego cross-
    examination, to decide not to put certain witnesses on the stand,
    or to decide not to disclose the identity of certain witnesses in
    advance of trial.
    Taylor, 484 U.S. at 418, 108 S. Ct. at 658. Although defense counsel may not waive certain basic
    rights, such as the right to plead not guilty and the right to a trial, counsel necessarily “has full
    authority to manage the conduct of the trial.” Id. at 417-18 & n.24, 108 S. Ct. at 657 & n.24.
    No Tennessee case examining the propriety of Rule 12.2(d) sanctions has ever held or even
    suggested that the defendant must personally refuse to submit to a mental examination as opposed
    to refusing to comply with Rule 12.2(c) through counsel. See State v. Gerald Leander Henry, No.
    01C01-9505-CR-00161, Davidson County (Tenn. Crim. App. Feb. 25, 1999), overruled in part on
    other grounds, 
    33 S.W.3d 797
     (Tenn. 2000); State v. John Parker Roe, No. 02C01-9702-CR-00054,
    Shelby County (Tenn. Crim. App. Jan. 12, 1998), app. denied (Tenn. Jan. 4, 1999); see also Huskey,
    964 S.W.2d at 896 (noting the trial court may sanction a defendant’s failure to comply with Rule
    12.2 by precluding the insanity defense or the testimony of defense experts); State v. Martin, 
    950 S.W.2d 20
    , 25-27 (Tenn. 1997) (noting that the defendant has a right to counsel’s advice in deciding
    whether to present an insanity defense but holding that the defendant is not constitutionally entitled
    to have counsel present during a court-ordered mental examination). We note that “the right to a
    defense belongs to the defendant.” Zagorski v. State, 
    983 S.W.2d 654
    , 658 (Tenn. 1998) (holding
    that defense counsel did not provide ineffective assistance in declining to present mitigating evidence
    at the insistence of a competent capital defendant). Our supreme court has required trial courts to
    inquire of the capital defendant personally whether he or she understands the right to present
    mitigating evidence and wants to forego presentation of mitigating evidence at the sentencing phase.
    Id. at 660-61. However, a defendant has no state or federal constitutional right to conduct his own
    defense pro se and, at the same time, be represented by counsel. State v. Burkhart, 
    541 S.W.2d 365
    ,
    371 (Tenn. 1976). Typically, with the exception of certain basic constitutional rights, the
    represented defendant communicates with the court through counsel. Thus, we cannot agree that the
    trial court had to inquire of the defendant himself whether he intended to submit to the mental
    examination. Defense counsel spoke for the defendant when he declined to have the defendant
    submit to a mental examination as ordered by the trial court. The trial court was entitled to rely upon
    defense counsels’ repeated and emphatic refusals regarding the defendant’s participation in any
    mental examination that did not conform to defense specifications.
    The defendant challenges the harshness of the Rule 12.2(d) sanctions, contending that the
    rule does not provide for the striking of his insanity defense but only for the striking of experts. He
    argues that the trial court lacked authority to strike his insanity defense, which could have been
    proven through lay testimony. As the state points out, our supreme court has determined that a trial
    court may sanction a defendant who fails to submit to a Rule 12.2(c) mental examination by striking
    defense experts on mental condition and by striking the insanity defense. Huskey, 974 S.W.2d at
    -91-
    896. Although the state correctly points out that at the May 15, 1995 hearing the trial court stated
    that it was striking defense experts, we note that at a September 7, 1995 hearing, the court agreed
    with the defendant that he had voluntarily foreclosed his insanity defense. At the September 20,
    1995 hearing, the trial court reaffirmed that it was striking defense experts pursuant to Rule 12.2(d).
    Although these events could suggest that the trial court was striking the insanity defense as well as
    defense expert testimony, we note the following dialogue, which occurred just before selection of
    the jury:
    [Defense Counsel]: If it please the Court, in light of the Court’s
    ruling concerning not being permitted to call a psychiatrist to
    testify as to the mental illness of multiple personality disorder and
    the Court’s declining to bifurcate the case, the defendant is going
    to enter a plea of not guilty but not – he is not going to enter a
    plea of not guilty by reason of insanity.
    We are – based on those rulings, we’re – we’re – in other
    words, we – we don’t think we can offer just lay testimony
    without – without the jury being told that there is a mental illness
    or a mental disease known as this.
    [The Court]: All right.
    [Defense Counsel]: And if we’re in error on that, we are. We –
    so – so based upon that, we are not going to offer the testimony
    that we have as to the defendant’s insanity.
    [The Court]: All right. . . . .
    We view this exchange to reveal that the defendant chose not to offer lay testimony on insanity due
    to the absence of expert testimony on multiple personality disorder rather than that the trial court
    prohibited lay testimony.
    Citing to State v. Brown, 
    29 S.W.3d 427
     (Tenn. 2000), the defendant also argues that the
    Rule 12.2(d) sanction was excessive because his constitutional right to present a defense trumps the
    state’s procedural rights under Rule 12.2. Brown provides that in order to determine whether an
    evidentiary or procedural rule that excludes evidence violates a defendant’s constitutional right to
    present a defense, courts must carefully consider the facts of the case in light of the following
    considerations: “(1) the excluded evidence is critical to the defense; (2) the evidence bears sufficient
    indicia of reliability; and (3) the interest supporting exclusion of the evidence is substantially
    important.” Id. at 434. Without providing any argument regarding these considerations, the
    defendant summarily states that the trial court mechanically struck his insanity defense upon the
    state’s oral motion.
    -92-
    Initially, we note that Rule 12.2 does not prevent the defendant from presenting an insanity
    defense or expert witnesses on the issue of his mental condition. The rule does attach certain
    conditions to his pursuit of a defense based upon his mental condition, but our supreme court has
    found those conditions to withstand certain constitutional challenges. See Huskey, 964 S.W.2d at
    897-98 (holding that Rule 12.2(c) does not violate a defendant’s right against self-incrimination or
    right to counsel). Unlike the situation in Brown, in which the rule against hearsay excluded evidence
    critical to the defendant’s defense, Rule 12.2 does not exclude the defense of insanity or the
    defendant’s experts. Instead, it was the defendant’s refusal to comply with the trial court’s order for
    a mental examination under Rule 12.2(c) that led to the exclusion of defense experts.
    Although declining to create a specific standard to guide the trial court’s discretion in
    sanctioning a defendant for a discovery violation by preclusion of a witness, the United States
    Supreme court has noted the following considerations:
    It is elementary, of course, that a trial court may not ignore the
    fundamental character of the defendant’s right to offer the
    testimony of witnesses in his favor. But the mere invocation of
    that right cannot automatically and invariably outweigh
    countervailing public interests. The integrity of the adversary
    process, which depends both on the presentation of reliable
    evidence and the rejection of unreliable evidence, the interest in
    the fair and efficient administration of justice, and the potential
    prejudice to the truth-determining function of the trial process
    must also weigh in the balance.
    Taylor, 484 U.S. at 414-15, 108 S. Ct. at 656. In the same vein, this court has stated that
    exclusionary rules for discovery violations should not be used simply to punish a defendant who has
    failed to comply with the requirements of the discovery rules. State v. Garland, 
    617 S.W.2d 176
    ,
    185 (Tenn. Crim. App. 1981). Instead, in determining whether to exclude defense evidence for a
    failure to comply with discovery rules, the trial court must determine that the state would be
    prejudiced and that the prejudice cannot be mitigated by other means. Id. On the other hand, this
    court has not shied away from affirming a Rule 12.2(d) sanction when the failure to comply would
    prejudice the state. See John Parker Roe, slip op. at 13-14 (analyzing defendant’s refusal to discuss
    the facts of the killing during his Rule 12.2(c) examination). The defendant may not raise the issue
    of his mental condition at the time of the offenses and then “tie the hands of the prosecutors” by
    refusing to participate in a Rule 12.2(c) exam. John Parker Roe, slip op. at 14. The state would be
    seriously disadvantaged if it were not able to present expert testimony stemming from an
    examination of the defendant to respond to the defendant’s expert testimony regarding his mental
    condition. Huskey, 964 S.W.2d at 897 (citing Wayne R. LaFave, Criminal Practice and Procedure,
    § 19.4 at 517 (1984)). The state is also “entitled to a fair trial.” John Parker Roe, slip op. at 14.
    In the present case, we believe that the trial court properly precluded the defendant’s experts
    because of his failure to submit to a mental examination by a court-appointed expert. Although the
    -93-
    defendant suggests that the state could have acquired an expert to review the reports of defense
    experts, we question whether that procedure could have approximated an actual examination of the
    defendant. We believe that limiting the state to review of the defense expert’s reports would have
    undermined the truth-determining function of the trial and would have been insufficient to mitigate
    the prejudice to the state. The state was entitled to obtain evidence to rebut the defendant’s
    assertions regarding his mental state. The defendant’s refusal to comply with Rule 12.2(c)
    effectively foreclosed the state’s access to rebuttal evidence. The sanction imposed by the trial court
    was not excessive.
    The defendant also suggests that the trial court had a number of other, less severe alternatives
    to imposing Rule 12.2(d) sanctions, including:
    (1) addressing the issues in his motion for a protective order,
    (2) calling Dr. Tennison to testify about how the mental
    examination would be performed,
    (3) scheduling a definite time for the examination so that he
    would know what was happening and could be prepared to
    videotape it,
    (4) ordering an evidentiary hearing to resolve the factual disputes
    surrounding the events of Mr. Sawyer’s attempt to examine the
    defendant on May 12, 1995,
    (5) addressing the defendant personally and informing him that he
    would lose the right to present an insanity defense if he did not
    submit to an evaluation, and
    (6) ordering defense counsel to permit the examination and
    holding them in civil or criminal contempt if they failed to do so.
    Of these, the first three appear to be alternatives to the conditions for the examination that the
    defendant requested and the trial court denied. At the time it imposed sanctions, the trial court had
    already declined to impose these conditions. The fourth and fifth alternatives relate to the
    defendant’s contention that he personally had to waive the examination. We have already
    determined that the trial court was entitled to rely upon counsels’ representations that the defendant
    would not submit to an examination as ordered by the court. Finally, while the trial court did
    consider the alternative of holding defense counsel in contempt, it declined to do so in favor of Rule
    12.2(d) sanctions. In light of the prejudice to the state in having no rebuttal evidence regarding the
    defendant’s mental condition as the trial approached, we cannot determine that the trial court abused
    its discretion.
    -94-
    Next, the defendant contends that the trial court arbitrarily refused to grant his September
    1, 1995 motion for a Rule 12.2(c) mental evaluation due to the closeness of trial. He argues that the
    trial court had granted the state’s motion for a mental examination on May 5, 1995, just ten days
    before the May 15, 1995 trial date. We agree with the state that the defendant misconstrues the trial
    court’s comment that his motion came too late. When taken in the context of the entire September
    20, 1995 hearing on the matter, we conclude that the trial court denied the defendant’s motion
    because it had already imposed Rule 12.2(d) sanctions due to his failure to submit to a mental
    examination.
    Nevertheless, we are concerned about the trial court’s terse denial of the defendant’s motion
    when the record reflects that sufficient time existed to accomplish the examination before trial. As
    discussed above, a trial court should not exclude defense evidence pursuant to exclusionary rules
    simply to punish the defendant for a discovery violation. Garland, 617 S.W.2d at 185. Instead, the
    trial court should apply exclusionary rules only if the state would otherwise be prejudiced and other
    means for mitigating the prejudice do not exist. Id. In the present case, we question whether the
    state would have been prejudiced by the trial court’s permitting the defendant to submit to a mental
    examination in early September before the trial in mid-October. On the other hand, the record of the
    Rule 12.2 proceedings leading up to the consolidated rape trial reveals that, had the trial court
    permitted a mental examination in September 1995, the defendant would not have submitted to a full
    examination. In the consolidated rape trial, the defendant submitted to an examination by Dr.
    Tennison but refused to allow an additional expert, Dr. Phillip Coons, to complete the examination
    when Dr. Tennison lacked the experience and expertise to do so. Nothing in the record suggests that
    the defendant’s response would have been different if the initial examination by Dr. Tennison had
    occurred before the first rape trial rather than before the consolidated rape trial. Moreover, the
    defendant’s argument regarding his motion for a mental examination before the first rape trial reveals
    that he was still insisting upon some of the conditions that formed the basis for his refusal to
    participate in the examination on May 15, 1995 – in particular, that the examination apply to only
    the first rape case. Thus, although the time might have been adequate to have an examination in
    early September 1995, we are not convinced that the defendant would have submitted to it.
    Finally, the defendant argues that, the trial court, Judge Jenkins, was disqualified to rule
    upon the Rule 12.2(c) and (d) issues because he had ex parte communications with Rick Sawyer, the
    social worker who sought to examine the defendant. He contends that the trial court received a letter
    from Mr. Sawyer and that he did not discover this letter until 1998. The state contends that the
    record contradicts this assertion and reveals that the letter from Mr. Sawyer was given to the
    defendant before the May 15, 1995 hearing and contained no privileged information. First, even if
    the defendant’s contentions were true, this would not have justified his refusal to comply with the
    court-ordered mental examination. Furthermore, as we note in Issue XX regarding the
    disqualification of Judge Baumgartner, a trial court may properly communicate ex parte for
    scheduling and administrative purposes that do not deal with substantive matters. See Tenn. S. Ct.
    R. 10, Canon 3(A)(7). In this respect, we do not believe that the trial court’s receipt of a letter from
    an expert, relating that the defendant sought to impose unworkable conditions upon a court-ordered
    mental examination, was improper. Additionally, the record reflects that the state attached a copy
    -95-
    of the letter to its May 4, 1995 renewed motion for a mental examination of the defendant. Thus,
    the defendant was aware of and had access to the letter before the trial court imposed sanctions on
    May 15, 1995. Finally, the court again addressed the matter of the conditions that applied to the
    mental examination at the May 5, 1995 hearing after hearing arguments from both the state and the
    defendant. Thus, the trial court did not deal with the matter of the conditions ex parte.
    B. Consolidated Rape Trial
    The defendant also challenges the trial court’s limitation of his insanity defense in the
    consolidated rape trial in which jury selection began on May 14, 1996. He contends that he was
    denied his rights to present a defense and to due process because the state and the trial court abused
    the Rule 12.2(c) process. He also argues that the trial court’s May 9, 1996 order for the defendant
    to submit to a mental examination violated his rights under the state and federal constitutions, the
    attorney-client privilege, the attorney work product doctrine, and an ethical rule. Finally, he argues
    that Rule 12.2(d) sanctions are not mandatory and were unwarranted in this case because he did not
    willfully and deliberately waive the mental examination. The state contends that the trial court
    properly sanctioned the defendant because he refused to submit to a court-ordered mental
    examination.
    Due to the nature of the defendant’s contentions, we begin by reviewing the Rule 12.2
    proceedings in the consolidated rape case in some detail. At a February 7, 1996 hearing, the state
    requested that the defendant be examined under Rule 12.2(c). The trial court asked the defendant
    if mental responsibility was going to be an issue at trial, and he replied that he would not know until
    he received the court’s ruling on his motion to suppress his statements. He reminded the court that
    his notice pursuant to Rule 12.2(a) and (b) was still pending from the first rape trial.
    The following day, February 8, 1996, the court discussed the need for a mental examination
    in light of the defendant’s suggestion that the court appoint each of his alternate personalities an
    attorney. After the defendant raised a number of questions regarding the manner in which the
    examination would be conducted, the court stated that it would question Dr. Clifton Tennison, who
    would be the court’s expert, about the need for certain questions pertaining to the defendant’s
    competency. The state asked the court if it would be allowed to have the defendant examined by an
    expert of its choice. The court stated that Dr. Tennison would be the court’s designated expert and
    that Dr. Tennison would determine if other experts needed to be consulted. The state pointed to the
    language in Rule 12.2(c), which states that the court may order an examination “upon motion of the
    District Attorney,” and noted that the state was not making that motion. The defendant argued that
    the state had already moved for a mental examination during the proceedings in the first rape trial
    and asked if the state was withdrawing that request. At that point, before the state responded, the
    court took a recess and then returned and announced that it would reserve any further rulings on the
    Rule 12.2 issue until it had heard from Dr. Tennison. The hearing then continued on other matters.
    Almost a month later, on April 2, 1996, the defendant asked the trial court to rule upon the
    voluntariness of his statements to the police in light of his mental capacity at the time. The state
    -96-
    requested that the defendant submit to a mental examination, and the trial court asked whether the
    defendant was putting his mental capacity at issue. The defendant argued that the state had no
    pending Rule 12.2(c) request because it had withdrawn its request in early February. He contended
    that any request for a mental examination at this point would be untimely. The state responded that
    the defendant had yet to decide if he were going to rely upon a mental defense at trial and that if he
    chose to do so, it was entitled to an examination. The defendant asserted that his Rule 12.2 notices
    filed during the proceedings in the first rape trial were still pending. The trial court ruled that the
    state was making a Rule 12.2(c) request at this time, that the state file its written request that day,
    and that the defendant respond the following week.
    On April 17, 1996, the trial court asked the state if it had filed a Rule 12.2 request that the
    defendant be examined. The state responded that it was awaiting the defendant’s notice of whether
    he was going to rely on a mental defense. The court stated that it believed that the defendant had
    announced that he was relying on a mental defense at the April 2 hearing. The court told the state
    that if it wanted to request a mental examination, it needed to do so forthwith. The state agreed to
    file a written request.
    At an April 25, 1995 hearing, the state asked for reciprocal discovery of the reports of
    defense mental health experts, Dr. Sadoff and Dr. McCoy, because it anticipated that the trial court
    would soon order a mental examination of the defendant. The defendant objected that the state had
    withdrawn its Rule 12.2(c) request for a mental examination and had not filed a new request despite
    the court ordering it to do so on several occasions. The state argued that its April 7, 1994 request
    made during the proceedings in the first rape trial was still pending, that it had never withdrawn this
    request, and that it did not need to file a new request with the 1994 request still pending. It noted
    that although it was not questioning Dr. Tennison’s competence to perform the examination, it had
    been in contact with other experts and had located only three people nationwide who were competent
    in the area of multiple personality disorder other than Dr. Sadoff, who had been retained by the
    defendant.
    The trial court reminded the defendant that he had wanted to wait until it had ruled on some
    of his motions before deciding whether he would rely upon an insanity defense in this case. As
    evidence that the state had withdrawn its Rule 12.2(c) request, the defendant stated that, at the time,
    the trial court had recessed the hearing and then met with the parties in chambers and pleaded with
    the state not to withdraw the request. The defendant argued that the state’s contention regarding the
    scarcity of experts on multiple personality disorder revealed that the state had delayed in refiling a
    Rule 12.2(c) motion because it was shopping for an expert. The court essentially agreed with the
    defendant’s account of the Rule 12.2 proceedings in February, March, and April of 1996. It was
    perplexed by the defendant’s insistence that it hold the state to its verbal withdrawal of the Rule
    12.2(c) request but not hold the defendant to his previous refusal to be evaluated under Judge
    Jenkins’s order for an examination in all his cases. The court stated that it did not object to the state
    filing a request at this time. The state agreed that it was renewing its motion for a mental exam. On
    that same day, the state filed a renewed motion for a mental examination of the defendant, asking
    the court to order him to submit to an exam pursuant to Rule 12.2(c).
    -97-
    On April 29, 1996, the trial court noted that the state had filed a motion for a mental
    examination and stated that it planned to call Dr. Tennison into court for questioning regarding the
    examination. The defendant objected to the court devoting time to the state’s procedural motion
    instead of his constitutionally based motions. He also objected to having to devote his time to the
    examination so close to the trial date. He denied that he was withdrawing his notice of intent to rely
    upon the insanity defense at trial. The court disagreed with the defendant that the state had caused
    the delay in attaining the examination, noted that the state had filed a request for mental examination,
    and repeated that it was going to question Dr. Tennison on whether he could perform the
    examination. The state argued that it was entitled to an expert of equal stature to the defense expert,
    Dr. Sadoff, but that the Administrative Office of the Courts (AOC) had refused to disclose how
    much money it gave the defendant for his experts. The court noted that it had instructed the AOC
    not to disclose that information and ruled that if pretrial motions were not completed before the May
    13, 1996 trial date, then it would continue the trial from day to day until the motions were
    completed.
    The following day, April 30, 1996, the court held a hearing on the state’s renewed motion
    for a Rule 12.2(c) mental evaluation. Dr. Tennison was present, and the court directed him to
    conduct an initial examination, advised him about the scope of the evaluation, and asked him to
    report back to the court on the need for additional assistance or information. The court stated that
    Dr. Tennison could conduct a survey of other experts to determine their availability and that he could
    but was not required to consider the state’s recommendations on whom to select. The court denied
    the defendant’s request that defense experts be present during the examination but left the issue of
    videotaping the examination to Dr. Tennison’s discretion. It instructed the defendant not to send Dr.
    Tennison any letters with conditions for the examination and, instead, to direct all his requests to the
    court.
    On May 2, 1996, the trial court entered an order for the defendant to submit to a mental
    evaluation by the Helen Ross McNabb Center to determine his mental condition at the time of the
    offenses and at the time he gave statements during November 1992. The defendant submitted to the
    examination that day. On May 8, 1996, Dr. Tennison reported that after interviewing the defendant
    for two hours, he determined the need for an additional examination by a “mental health professional
    who has substantial experience and demonstrated expertise in the areas of dissociation and
    dissociative identity disorder.” Dr. Tennison identified two persons whom he believed could
    perform the examination, Dr. Phillip Coons and Dr. Seymour Halleck. The state noted that Dr.
    Coons’s schedule would allow an immediate examination.
    The court directed Dr. Tennison to contact these experts and to select one based upon
    availability and qualification. The defendant objected to this process, arguing that a Tennessee
    statute directed the way in which experts were to be selected, that the statute required that the
    defendant be examined by an approved mental health facility, and that the state should not be
    allowed to shop for an expert. The court ruled that based upon Dr. Tennison’s testimony, it was
    satisfied about the need for an additional examination by an expert with more experience and
    expertise. The court ordered that an additional examination take place and that Dr. Tennison select
    -98-
    one of the two identified individuals to conduct the evaluation. It declined to permit a hearing for
    the defendant to question the expert, once selected, on his qualifications and the manner in which
    he would conduct the examination. It encouraged the parties to supply Dr. Tennison and the selected
    expert with information that Dr. Tennison had suggested would be helpful. It also suggested that
    the defendant give the selected expert the records generated by defense experts in order to facilitate
    a complete and valid examination. It asked Dr. Tennison to advise the court about whether the
    selected expert would object to videotaping the examination before he scheduled the expert’s
    participation. The court denied the defendant’s requests that defense counsel and defense experts
    be present during the additional examination.
    On May 9, 1995, the defendant again objected to the additional examination, arguing that he
    needed to question any new experts on their qualifications and that the court was delegating its
    responsibilities under Rule 12.2 to Dr. Tennison. The state also objected to the Rule 12.2(c)
    proceedings, contending that it should be able to select the expert of its choice for the evaluation
    because it had the burden of proving the defendant’s sanity beyond a reasonable doubt once the
    defendant raised the issue of sanity at trial. The court ruled that it was proceeding properly under
    the rules and that it was not delegating its responsibilities but was merely enlisting the assistance of
    qualified individuals in selecting an expert to complete the examination.
    The trial court then conducted a conference telephone call with the parties and Dr. Tennison.
    Dr. Tennison reported that he had eliminated Dr. Halleck as a possibility because Dr. Halleck had
    disclosed that his philosophical position regarding dissociative identity disorder (DID) would impair
    his ability to evaluate the disorder fairly. Dr. Tennison said that Dr. Coons was available, could
    begin interviewing the defendant the following Sunday, and could possibly complete the evaluation
    by the next Tuesday, the day of trial. Dr. Tennison stated that Dr. Coons had requested access to the
    defendant, to the detectives who took the defendant’s statements in November 1992, and perhaps
    to the jail nurse who had observed the defendant’s behavior in 1992. Dr. Coons had also asked for
    a list of the charges and for the defendant’s psychiatric and psychological records, including any
    existing videotaped examinations. Dr. Tennison advised that Dr. Coons did not object to
    videotaping the examination but did not have the equipment to do the taping. The court told Dr.
    Tennison that it would issue an order directing Dr. Coons to perform the examination.
    After the conference call, the trial court heard the defendant’s arguments regarding the
    examination, although it had already made a preliminary ruling. The defendant again objected to
    the process by which Dr. Coons was obtained, arguing that Tenn. Code Ann. § 33-7-301 required
    that the court turn to the Commissioner of Mental Health for designation of an additional expert or
    to the state Forensic Services Unit for an evaluation of the defendant. The defendant also sought to
    question Dr. Coons regarding any bias against DID and the details of the examination, including the
    fee arrangements, whether defense counsel and experts could be present, and the degree of
    confidentiality to be used by Dr. Coons. The defendant asked the court to set the deadline for his
    decision on whether he would rely upon evidence of mental condition at trial, which, under the trial
    court’s proposed order for a mental examination, would trigger the state’s receipt of the examination
    results. The court again ruled that it was proceeding appropriately. It noted that the Commissioner
    -99-
    of Mental Health had designated Dr. Tennison to conduct court-ordered mental examinations in
    Knox County. The court reviewed its findings regarding the need for an additional expert and Dr.
    Tennison’s role in locating that expert. Regarding confidentiality, it observed that Rule 12.2(c)
    guided the disclosure and use of information gathered in a court-ordered mental evaluation. It
    repeated that Dr. Coons would be the court’s, rather than the state’s, witness and again denied the
    defendant’s request to question Dr. Coons, noting that the examination would be videotaped and Dr.
    Coons could be cross-examined. It stated that Dr. Coons would determine who, if anyone, could be
    present during the examination.
    The trial court stated that the defendant should provide Dr. Coons with the defendant’s
    school records, medical records, psychological and psychiatric records, and employment records.
    The defendant objected that these records were protected by the attorney-client privilege and work
    product doctrine because they were developed and maintained during defense counsels’
    representation of the defendant. The court took this matter under advisement. The court ordered that
    Dr. Coons would have priority to the defendant over defense counsel during the time needed for the
    examination. Defense counsel announced that once the court ruled upon the defendant’s remaining
    questions regarding the mental evaluation, they would announce whether the defendant would
    participate in the evaluation. The defense stated that if the defendant refused to submit and the court
    prevented the use of mental responsibility evidence, the defendant would seek an interlocutory
    appeal. The state sought to clarify the record by adding that it had previously had a brief
    conversation with Dr. Coons regarding his fees but had not had a detailed conversation with him.
    The court stated that it did not question the state’s ethics in that regard.
    Later that day, the trial court reported that it had spoken with Dr. Tennison, who had
    communicated with Dr. Coons and had related the following information to the court: Dr. Coons
    did not object to the videotaping of his interviews with the defendant or other witnesses, defense
    attorneys and experts could not attend the interviews of the defendant, and the records that the court
    had requested the parties provide were necessary for a valid examination. The trial court emphasized
    that these records did not include conversations between defense counsel and the defendant or
    information the defendant told defense counsel. The court stated that it considered these records to
    be protected, that it would disclose them only to Dr. Tennison and Dr. Coons, and that they would
    be ultimately disclosed only upon the defendant’s election to proceed with the defense. The court
    related that Dr. Coons would need the defendant to be available for interviews between 8:00 a.m.
    and 5:00 p.m.on Monday, May 13 and 8:00 a.m. and noon on Tuesday, May 14 with appropriate
    breaks. The results of the evaluation would be available the morning of Wednesday, May 15.
    The court recessed to prepare the order for the mental evaluation. The May 9, 1996 order
    provided that the defendant submit to a mental examination by Dr. Tennison and Dr. Coons, the
    court’s experts. The order directed both parties
    to supply any medical records, employment records, school
    records, psychiatric or psychological records including test results
    and prior mental evaluations they have in their possession to the
    -100-
    court so that the court can deliver those materials to Drs.
    Tennison and Coons to aid in their evaluation.
    The order instructed the state to supply the charging instruments and both parties to make the
    witnesses under their control available to Drs. Tennison and Coons for interviews if the witnesses
    had personal knowledge of the defendant’s conduct at any material time. The order stated that once
    Drs. Coons and Tennison completed the examination, the court would give the results to the
    defendant who would have a reasonable time in which to decide if he would use a mental
    responsibility defense at trial. If the defendant elected to use that defense, the state would get the
    evaluation and reports of defense experts as well as the those of the court-appointed experts. The
    state would also be permitted to interview the court-appointed experts in preparation for trial.
    The May 9 hearing resumed, and the court read the order to the parties. Defense counsel
    stated that in the rape cases, the defendant would comply with the order as it related to Dr. Tennison,
    but they refused to have the defendant participate in the examination by Dr. Coons. The defense
    stated that the defendant would also cooperate with an expert appointed by the Commissioner of
    Mental Health. The state asked the court to question the defendant to determine if he understood that
    he would forfeit a potential defense if he refused to comply with the court’s order. Defense counsel
    refused to allow the defendant to be questioned on the record, stating that his counsel was making
    the decision. The court declined to question the defendant personally. Pursuant to Rule 12.2(d), it
    ruled that the defendant would not be permitted to present expert testimony relating to mental
    responsibility but that he could present lay testimony on that issue if it were otherwise admissible.
    The court agreed to permit the defendant to seek an interlocutory appeal on this issue as long as the
    proceedings in the consolidated rape trial were not stayed.
    (1) Abuse of the Rule 12.2(c) Process
    The defendant contends that the state and the trial court abused the Rule 12.2(c) process,
    thereby denying his rights to due process and to present a defense. He argues that the trial court
    arbitrarily applied the rule by denying his motion for a Rule 12.2(c) examination in the first rape
    case, which was filed forty-six days before trial, as untimely but granting the state’s Rule 12.2(c)
    request in the consolidated rape case, although made only eighteen days before trial. He contends
    that this was an abuse of discretion. Even if true, the defendant’s contention that the trial court
    arbitrarily applied Rule 12.2(c) is only relevant to this appeal if it relates to his refusal to submit to
    the mental examination by Dr. Coons or to the trial court’s imposition of Rule 12.2(d) sanctions for
    this refusal. The defendant has failed to relate this contention to either event. Nor do we believe that
    an arbitrary application of the rule would justify the defendant’s refusal to comply with the court-
    ordered evaluation in the consolidated rape case.
    Next, the defendant argues that the state’s pattern of delay regarding its Rule 12.2(c) request
    for a mental examination denied him a meaningful opportunity to present his insanity defense in the
    consolidated rape trial. He argues that the state delayed in bringing a Rule 12.2(c) request in order
    to shop for the expert of its choice and to manipulate the proceedings to force the striking of defense
    -101-
    expert testimony. The state contends that the defendant was not prejudiced by the timing of the
    state’s Rule 12.2(c) motion and that the trial court properly allowed the state to request a mental
    evaluation of the defendant.
    Again, even if the state did deliberately delay its pursuit of a mental examination for the
    nefarious purposes envisioned by the defendant, it would not have justified the defendant’s refusal
    to comply with a court-ordered examination. Furthermore, the record does not reveal that the state’s
    rule 12.2(c) request was untimely. Rule 12.2(c) does not specify a time for the filing of a request
    for a mental examination of the defendant. Rule 12.2(c) is triggered by the defendant’s filing a
    notice pursuant to Rule 12.2(a) or (b), which must be filed “within the time provided for the filing
    of pretrial motions or at such later time as the court may direct.” Tenn. R. Crim. P. 12.2(a), (b). A
    Rule 12.2(c) request for a mental examination is not listed among those motions that our rules of
    procedure require be filed before trial. See Tenn. R. Crim. P. 12(b). Generally, the time for making
    pretrial motions is within the discretion of the trial court. See Tenn. R. Crim. P. 12(c). The state
    filed a renewed motion for a mental examination of the defendant on April 25, 1996, two and one-
    half weeks before the scheduled trial date. The granting of that motion was within the trial court’s
    discretion.
    Moreover, although the state could have and, indeed, should have more vigorously pursued
    the mental examination, the record does not reveal that the state intentionally delayed the Rule
    12.2(c) proceedings. As evidence of a pattern of delay, the defendant contends that the state said that
    it was not making a Rule 12.2(c) request on February 8, 1996. He asserts that the trial court directed
    the state to file a Rule 12.2(c) request on three separate occasions but that the state did not file the
    request until April 25, 1996, only eighteen days before trial. The defendant summarily argues that
    this chronology of events reveals a clear pattern of abuse by the state and the trial court as well as
    an intentional disregard for the Tennessee Rules of Criminal Procedure, the local rules, and the
    defendant’s rights.
    We disagree with the defendant’s interpretation of the chronology of events as showing a
    pattern of delay on the part of the state. As previously discussed, the state initially filed a written
    request for a mental examination of the defendant on April 7, 1994, a year and one-half before the
    first rape trial began in October 1995. The state renewed this motion on May 4, 1995, but the
    defendant ultimately refused to participate in the examination in May 1995. The record does not
    reflect that the state affirmatively withdrew its Rule 12.2(c) request on February 8, 1996, before the
    consolidated rape trial. Furthermore, in subsequent hearings on the matter, the state repeatedly
    denied that it had withdrawn its request and resisted the court’s direction that it file a new request
    for a mental examination, arguing that its April 7, 1994 request was still pending. Although the
    defendant persistently argued and the trial court on at least one occasion found that the state had
    withdrawn its 12.2(c) request on February 8, 1996, we believe the record supports the trial court’s
    subsequent finding that the state did not cause the delay.
    In discussing the need for Rule 12.2(d) sanctions during the May 9, 1996 hearing, the trial
    court found that the delay in reaching the Rule 12.2(c) examination was due to the number of issues
    -102-
    being considered in the months leading up to trial. It noted that in early February 1996, the
    defendant had asked for rulings on other motions before electing to proceed with an insanity defense
    in the consolidated rape trial. It stated that it had gotten to the mental evaluation issue as soon as
    possible in this case. In particular, the court noted that since February 7, 1996, it had spent eighteen
    days hearing arguments and testimony on the defendant’s motions. It stated that it simply had not
    gotten to the mental responsibility issue until the last thirty days and that it “had no option, based
    on the timing of . . . things, but to proceed in the way that [it] did.” We do not detect a pattern of
    delay on the part of the state regarding the mental examination of the defendant, in particular no
    delay calculated to force the defendant to refuse to submit to the mental evaluation.
    The defendant contends that he was justified in refusing to participate in the examination by
    Dr. Coons because, due to the closeness of the May 13, 1996 trial date, he did not have a meaningful
    opportunity to comply with the May 9 order. He argues that submitting to the examination with Dr.
    Coons would have prevented him from working with his attorneys in the days immediately
    preceding his trial. He also contends that the trial court’s deadline of twenty-four hours to decide
    whether to pursue his insanity defense at trial upon receipt of the examination results violated his
    right to due process. The state contends that the trial court offered to continue the trial to give the
    defendant additional time to prepare. The defendant replies that by requesting a continuance he
    would have had to give up his right to a speedy trial that he had demanded since January 1995 in
    order to deal with the state’s last minute request for a mental examination. He claims that it is
    unconstitutional to require him to give up his right to a speedy trial in order to gain a fair trial.
    In light of the circumstances surrounding the May 9 order, we do not believe that the
    defendant’s right to due process was violated. We note that the trial court, at length and on several
    occasions, entertained the defendant’s arguments regarding his objections to an examination by Dr.
    Coons. Although the trial court noted that it did not believe inability to prepare was the reason
    behind the defendant’s refusal to submit to the mental examination, the trial court offered to continue
    the trial day to day for up to a week in order to give the defendant time to prepare. The defendant
    cannot, upon filing numerous pretrial motions, disparage the trial court for the time that it takes to
    address them. As discussed in Issue II, the defendant did not assert his right to a speedy trial in the
    rape cases until April 29, 1996, only ten days before the trial court’s May 9 order. In light of the
    time needed to address the extensive motion practice in this case and the defendant’s recent speedy
    trial challenge, we do not believe that the defendant was faced with an unconstitutional choice
    between a fair trial and a speedy one.
    The defendant also contends that the trial court’s appointment of Dr. Coons to complete Dr.
    Tennison’s examination violated Tenn. Code Ann. § 33-7-301(a) because Dr. Coons was not
    designated by the Commissioner of the Tennessee Department of Mental Health as required by the
    statute. He argues that the procedures specified by section 33-7-301(a) help ensure that court-
    ordered mental examinations are performed by qualified, unbiased experts at a reasonable cost. He
    also asserts that trial court violated Rule 706, Tenn. R. Evid., because it did not give him a
    meaningful opportunity to determine Dr. Coons’s qualifications to conduct the examination so that
    he could properly challenge Dr. Coons’s appointment. Even if the trial court improperly appointed
    -103-
    Dr. Coons, this does not justify the defendant’s refusal to submit to the examination. The trial court
    struck defense experts on mental condition due to the defendant’s refusal to participate in the
    examination. In this respect, the propriety of Dr. Coons as the examiner is irrelevant unless it
    justified the defendant’s refusal to comply with the court-ordered examination.
    Furthermore, we do not believe that the trial court’s appointment of Dr. Coons was improper.
    The decision of whether to grant a mental examination under section 33-7-301 is within the trial
    court’s discretion, and this court will not reverse that decision on appeal except for an abuse of that
    discretion. State v. Lane, 
    689 S.W.2d 202
    , 204 (Tenn. Crim. App. 1984). The “trial court has the
    authority to designate in its order . . . the expert who is to perform the examination . . . .” Martin,
    950 S.W.2d at 23. At the time of the trial court’s May 9, 1996 order, section 33-7-301(a)4 instructed
    the trial court to appoint an expert designated by the commissioner to conduct a mental examination.
    In the present case, the trial court’s appointment of Dr. Tennison, who was designated by the
    commissioner, complied with the statute. If an expert designated by the commissioner could not
    perform the evaluation, the statute directed that the defendant be examined as an outpatient by a
    designated state or state-supported hospital. Tenn. Code Ann. § 33-7-301(a) (1996, amended 1998).
    Before the homicide case, experts at Middle Tennessee State Mental Health Institute (MTMHI)
    examined the defendant. Although the staff had some experience with DID cases, the state mental
    hospital was unable to complete a mental examination of the defendant. The plain language of the
    statute does not address a situation in which the designated expert believes that he cannot complete
    the evaluation of mental capacity due to his lack of experience and expertise and that no one in
    Tennessee is qualified to perform the evaluation. Importantly, in the defendant’s interlocutory
    appeal of the Rule 12.2(c) proceedings in the homicide case, our supreme court did not disapprove
    of the trial court appointing an out-of-state expert, Dr. Richard Kluft, upon the advice of Dr.
    Tennison once MTMHI could not complete the examination. Huskey, 964 S.W.2d at 894.
    Similarly, we do not view the trial court’s appointment of Dr. Coons in the consolidated rape trial
    to be improper under section 33-7-301(a) as it existed in 1996.
    Pursuant to Rule 706(a), Tenn. R. Evid., a trial court “may not appoint expert witnesses of
    its own selection on issues to be tried by a jury except as provided otherwise by law.” The
    defendant’s mental state at the time of the offenses is an issue to be determined by the jury. Section
    33-7-301 and Rule 12.2(c) govern the trial court’s appointment of an expert to conduct the court-
    ordered mental evaluation. Thus, the selection of the court-appointed expert in this case was
    “provided otherwise by law.” See Tenn. Code Ann. § 33-7-301(a); Tenn. R. Crim. P. 12.2(c); see
    also Neil P. Cohen, Tennessee Law of Evidence § 7.06[3][b] at 7-77 (noting that the trial court may
    select an expert appointed to examine a defendant who raises a defense of mental condition in a
    criminal trial). Also with regard to Rule 706, the defendant argues that the trial court’s order
    4
    W e note that the legislature amended section 33-7 -301 (a), effective July 1, 1998, adding provisions that allow
    the trial court to permit the district attorney general “to designate a qualified expert” to examine the defendant if in “the
    case of a pre-trial proceeding the court receives notice from an inpatient evaluator under subdivision (a)(1) that . . . [t]he
    type or extent of assessment required exceeds the expertise or resources available to the evaluator . . . .” Tenn. Code
    Ann. § 33-7-301(a)(2)(A)(i).
    -104-
    appointing Dr. Coons failed to prescribe the standards by which Dr. Coons was to conduct the
    evaluation or to ask Dr. Coons to give opinions. The May 9 order fixed the conditions under which
    the examination was to take place and required Dr. Coons to submit a report on the examination.
    Additionally, the trial court directed Dr. Tennison to continue to participate in the examination of
    the defendant. Thus, the trial court communicated to Dr. Coons the parameters of the examination
    and the need for his opinion. We perceive no error with regard to Rule 706.
    The defendant also contends that the state manipulated the Rule 12.2 proceedings in order
    to select the expert of its choice. Even if true, the defendant fails to explain how this would justify
    his refusal to participate in the court-ordered examination, and, indeed, we conclude that it would
    not. Furthermore, as previously discussed, the trial court acted within its discretion in appointing
    Dr. Coons. Although the state repeatedly argued that it should be allowed to select the expert who
    would perform the court-ordered examination, the trial court rejected this request. From the
    inception of the Rule 12.2 proceedings in this case, the court firmly and consistently ruled that the
    Rule 12.2(c) examination would be conducted by the court’s expert. When Dr. Tennison, the court-
    appointed expert, reported that he lacked the necessary experience and expertise in DID to complete
    the defendant’s evaluation, the court directed Dr. Tennison to suggest an expert who was qualified
    to complete the examination. The court permitted but did not require Dr. Tennison to consider the
    state’s recommendations. Dr. Tennison testified that he did not recognize Dr. Coons when the state
    gave him Dr. Coons’s vita prior to Dr. Tennison’s initial examination of the defendant. When Dr.
    Tennison subsequently recommended Dr. Coons to complete the examination, he stated:
    I looked into my own educational and training materials and
    found that particular doctor has a very high stature in forensic
    psychiatry and in the diagnosis and treatment of dissociative
    identity disorder. In fact, several of his papers are ones that I
    have used myself. And when I was asked if I remembered him
    and didn’t remember him, I’m embarrassed to say that I actually
    had been trained with materials that he had produced.
    Thus, the record reflects that Dr. Tennison suggested Dr. Coons based upon his qualifications rather
    than upon the state’s recommendation. The trial court found the proposed examination by Dr. Coons
    to be “extremely fair.” Our review of the Rule 12.2 proceedings in this case does not reveal that Dr.
    Coons, although preferred by the state, was in any way affiliated with the state or biased in the
    state’s favor. We do not believe that the evolution of the Rule 12.2 proceedings in this case were
    crafted to provide the state with the expert of its choice.
    Finally, the defendant argues that the trial court’s ex parte communications with Drs.
    Tennison and Coons reveal that the trial court and the District Attorney were manipulating the Rule
    12.2(c) evaluation to ensure that the defendant was examined by the state’s chosen expert. This
    assertion likewise provides no justification for the defendant’s refusal to submit to the May 9 order.
    As discussed in Issue XX on disqualification, the record does not reflect that the trial court
    -105-
    communicated ex parte with Drs. Tennison and Coons in order to provide the state with its preferred
    expert. The defendant is not entitled to relief on this issue.
    (2) Constitutionality of the May 9, 1996 Order
    The defendant contends that the May 9, 1996 order directing that he submit to a mental
    examination by Dr. Coons violated his rights under the state and federal constitutions; the attorney-
    client privilege; the attorney work product doctrine; and disciplinary rule 4-101 of the Code of
    Professional Responsibility, Tenn. S. Ct. R. 8. In this regard, he challenges the order’s requirement
    that he turn over certain records to Drs. Tennison and Coons and make the witnesses under his
    control available to these experts. He argues that he rightfully declined to be examined under an
    unconstitutional and unlawful order and that the resulting sanctions erroneously denied him a
    meaningful opportunity to present his insanity defense. The state contends that the defendant has
    failed to specify how the disclosure of the records enumerated in the May 9 order would violate any
    privileges. It argues that the supreme court’s rulings in Martin and Huskey control this claim. It also
    argues that the defendant did not object to giving this information to Dr. Tennison but only refused
    to give it to Dr. Coons. Although the records in question are the work product of the defense, the
    record does not reflect that the trial court’s order that the defendant provide these records was the
    basis for his refusal to submit to the examination.
    Without further explanation, the defendant argues that the trial court’s order that he provide
    medical, school, employment, psychological, and psychiatric records as well as make witnesses
    available to the experts violates his Fifth and Sixth Amendment rights under the United States
    Constitution and his article I, section 7, 8, and 17 rights under the Tennessee Constitution. We
    decline to speculate in what way. See Tenn. Ct. Crim. App. R. 10(b) (providing that issues
    unsupported by argument are waived). We note, though, that as long as the protections built into
    Rule 12.2(c) are scrupulously followed, “statements made by [the defendant] during the examination,
    any expert testimony based on such statements, and any ‘fruits’ derived from the statements are
    admissible” without violating the defendant’s right against self-incrimination or right to counsel.
    Huskey, 964 S.W.2d at 897-98; see also Martin, 950 S.W.2d at 24, 27.
    The defendant contends that the attorney-client privilege and the work product doctrine
    protect the requested materials because defense counsel obtained all of the materials subject to the
    order as a result of communications with the defendant. We agree with the defendant that our
    supreme court’s ruling in Huskey did not address this specific issue with regard to the May 9 order.
    Huskey, 964 S.W.2d at 900. Instead, the court noted that the trial court’s superceding August 12
    order directed the disclosure of materials to the examining experts “‘subject to’” any relevant
    privileges. Id. The supreme court held that the defendant could “on remand, object to disclosure
    of specific materials to the state following a Rule 12.2(c) examination and attempt to establish the
    applicability of a privilege or other basis for non-disclosure.” Id.; see also Martin, 950 S.W.2d at
    25.
    -106-
    The May 9 order does not directly violate the attorney-client privilege. See Tenn. Code Ann.
    § 23-3-105 (providing that an attorney may not disclose communications made by a client). The
    attorney-client privilege does not apply if a third party is present during the communication. See
    Bryan, 
    848 S.W.2d 72
    , 80 (Tenn. Crim. App. 1992); see also Hazlett v. Bryant, 
    192 Tenn. 251
    , 257,
    
    241 S.W.2d 121
    , 124 (1951). The nature of the requested materials suggests that third parties were
    necessarily involved in their creation as well as their being obtained by the defense.
    To the extent that the defense had the requested records in its possession, they were collected
    by defense counsel or their agents in preparation for the defendant’s trials. Thus, they were work
    product. See State v. Hunter, 
    764 S.W.2d 769
    , 770 (Tenn. Crim. App. 1988) (defining work product
    as the “internal reports, documents, memoranda, etc. prepared or collected by the attorney or his
    representatives in preparation for trial”); see also Tenn. R. Crim. P. 16(b)(2). Nevertheless, work
    product does not enjoy an absolute privilege and may be disclosed if the failure to do so would
    impose a hardship on the other party by depriving it of relevant, non-privileged facts essential to its
    case. Hickman v. Taylor, 
    329 U.S. 495
    , 511, 
    67 S. Ct. 385
    , 394 (1947); Southeastern Fleet Leasing,
    Inc. v. Gentry, 
    57 Tenn. App. 162
    , 172, 
    416 S.W.2d 773
    , 778 (1967). In the present case, we
    question the trial court’s order that the defendant provide records because no evidence exists that the
    experts were unable to obtain these documents from another source. Furthermore, with the
    exception of expert witnesses, a defendant may not be required to disclose his or her witnesses
    before trial. See generally Tenn. R. Crim. P. 16(b)(2).
    In any event, the record reveals that the trial court’s ordering the defendant to produce work
    product did not influence his decision to refuse an examination by Dr. Coons. At the May 9 hearing,
    the defendant offered to comply with the order as it related to Dr. Tennison but refused to comply
    with regard to Dr. Coons. He made this statement immediately after clarifying that the records
    required by the order included those that he did not intend to introduce at trial. In this respect, we
    believe that the defendant’s argument that the order threatens defense confidences is somewhat
    disingenuous as he would have willingly provided the records to Dr. Tennison. The defendant’s
    stance on this issue at the May 9 hearing reveals that the heart of the defendant’s objection was to
    the trial court’s appointment of Dr. Coons as the examiner. Furthermore, on August 12, 1996, after
    the consolidated rape trial, the trial court entered a superceding order, which deleted the offensive
    provisions and, instead, “encouraged [prosecution and defense counsel] to cooperate with requests
    for information from [MTMHI], subject to the attorney-client or other applicable privileges.” This
    suggests that violations of the work product rule will not be an issue in a retrial of D. C.’s case.
    Finally, the defendant contends that the May 9 order’s provision for the disclosure of the
    listed materials required defense counsel to violate DR 4-101, Tenn. S. Ct. R. 8., which prohibits an
    attorney from revealing a secret or confidence of a client or from using such to the client’s
    disadvantage. The materials listed in the order do not fall within the disciplinary rule’s definition
    of a confidence, which is “information protected by the attorney-client privilege under applicable
    law.” DR 4-101(A). Under DR 4-101(A), a secret “refers to other information gained in the
    professional relationship that the client has requested be held inviolate or the disclosure of which
    would be embarrassing or would be likely to be detrimental to the client.” Assuming arguendo that
    the listed materials fall within this definition, the rule provides that a lawyer may reveal confidences
    -107-
    or “secrets when permitted under . . . court order.” DR 4-101(C)(2). Thus, this disciplinary rule
    does not prevent compliance with the May 9 order.
    (3) Rule 12.2(d) Sanctions Unwarranted
    The defendant contends that Rule 12.2(d) sanctions were unwarranted in this case because
    the trial court imposed the sanctions for his attorneys’ actions rather than those of the defendant, who
    did not personally, deliberately, and willfully refuse to participate in the court-ordered examination
    by Dr. Coons. He also argues that the trial court erroneously concluded that Rule 12.2(d) required
    that it impose sanctions. The state contends that the sanctions were proper. We agree with the state.
    The defendant again faults the trial court for failing to ask the defendant personally whether
    he refused to submit to the Rule 12.2(c) evaluation rather than sanctioning him for the actions of his
    attorneys. As discussed above with regard to the proceedings in the first rape trial, a trial court does
    not have to question the defendant personally with regard to his or her refusal to submit to a Rule
    12.2(c) mental examination. Instead, the trial court is entitled to rely upon the representations of
    defense counsel that the defendant will not participate in the examination. Furthermore, we note that
    in the consolidated rape case, the state requested that the trial court question the defendant personally
    to insure that he understood the ramifications of his refusal to submit to the examination. Defense
    counsel objected to the court questioning the defendant, and the trial court observed:
    Mr. Huskey is present in the courtroom as we speak. He’s been
    present at every proceeding that I’ve had with respect to this case.
    He’s familiar with what his lawyers are representing to the Court.
    I assume if Mr. Huskey at some point in time disagrees with their
    counsel, that he will let me know about it. I don’t hear anything
    from him at this time, and I’m not going to . . . personally address
    myself to Mr. Huskey. He’s represented by counsel, and I think
    the appropriate thing for me to do is to address myself to counsel.
    The defendant cannot object to the trial court questioning him at trial and then argue on appeal that
    the trial court should have done so. See State v. Miller, 
    668 S.W.2d 281
    , 285 (Tenn. 1984). The
    trial court did not err in relying upon the defense counsels’ representations that the defendant would
    not participate in the examination.
    The defendant also contends that the trial court erroneously determined that imposition of
    Rule 12.2(d) sanctions was mandatory rather than discretionary. We agree with the defendant that
    Rule 12.2(d) sanctions are discretionary. See Tenn. R. Crim. P. 12.2(d) (providing that the trial court
    “may exclude” defense expert testimony on mental condition for the defendant’s failure to comply
    with Rule 12.2). We differ, though, in our interpretation of the trial court’s comments regarding the
    imposition of sanctions. After declining to be examined by Dr. Coons, the defendant argued that the
    court should not impose sanctions due to the circumstances surrounding the Rule 12.2(c)
    proceedings in this case. He argued that because of the state’s belated request, the timing of the
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    examination would leave him with inadequate time to prepare for trial, to consider the results of Dr.
    Coons’s examination, or to consult with defense experts about the results. He objected to his
    inability to investigate Dr. Coons and to delaying the trial. Finally, he argued that his constitutional
    right to a defense should take precedence over the state’s statutory right to a mental examination so
    close to trial.
    The trial court responded to these arguments by noting the defendant’s desire to wait until
    the court had ruled on other motions before deciding whether he would proceed with a defense of
    mental responsibility in this case. It found that due to the amount of time needed for motions on this
    case, it had only addressed the issue of mental responsibility within the last thirty days. It stated that
    although it had attempted to protect the defendant’s rights, it would not allow the defendant to thwart
    the rules to gain an unfair advantage. The court stated that if the defendant sought to use expert
    testimony to present a mental defense, then a fair and true determination of that issue required that
    he be examined by the court’s experts. It stated that the defendant had refused to submit to an
    extremely fair evaluation. Then, it ruled that as “a result of that, it’s my opinion that the rules and
    the law in this state direct this court, mandate the court under the facts of this case to exclude any
    testimony by expert witnesses with respect to the mental responsibility of this defendant.” We do
    not interpret the trial court’s use of the term “mandate” to mean that it mistakenly believed that Rule
    12.2(d) sanctions were mandatory. Instead, taking this statement in the context of the defendant’s
    arguments and the court’s findings, we believe that the court ruled that the impact of the defendant’s
    refusal to be examined by Dr. Coons justified the striking of defense experts in this case. The
    defendant is not entitled to relief on this issue.
    Finally, the defendant contends that the trial court abused its discretion in striking his experts
    pursuant to Rule 12.2(d) in this case. He argues that the state was not harmed by his refusal to
    submit to the examination. He states that the state could have presented expert testimony through
    experts who had reviewed Dr. Tennison’s videotaped examination, the defendant’s audiotaped
    statements, and information about him from the detectives, other inmates, and a background
    investigation. As discussed with regard to the proceedings in the first rape trial, we do not believe
    that an evaluation limited to these sources could approximate one conducted with the defendant. The
    defendant notes that in the homicide case, the state relied upon the testimony of Dr. Herbert Speigel,
    who never examined the defendant. We would point out that in the homicide case, the defendant
    did submit to a complete examination by the court-appointed experts. In imposing sanctions in the
    consolidated rape trial, the court noted that a complete examination by a court-appointed expert was
    necessary to a fair determination of the mental responsibility issue. We agree and do not believe that
    the trial court abused its discretion in imposing sanctions.
    IX. CHANGE OF VENUE
    The defendant contends that the trial court erred in its rulings regarding his motions for
    change of venue. In the first rape case, the trial court denied the defendant’s motion, and the
    defendant was tried in Knox County by a Knox County jury. In the consolidated rape case, the trial
    court ruled that a jury was to be selected from Hamilton County but then transported to Knoxville
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    for the trial. The defendant contends that the trial court erred in moving the Hamilton County jury
    to Knox County. The state contends that the trial court properly denied the defendant’s motion in
    the first rape case and that the trial court properly held the consolidated rape trial in Knox County
    with a Hamilton County jury.
    In support of his motion for a change of venue, the defendant offered the affidavit of Dr.
    Charles C. Bebber, a psychologist and trial behavior consultant. The affidavit provided the
    following: Dr. Bebber had reviewed the indictments and information in the defendant’s cases. He
    had also reviewed transcripts of television and radio newscasts and copies of newspaper articles from
    Knox County and surrounding counties regarding the defendant’s cases. Dr. Bebber discussed four
    factors to support his opinion that pretrial publicity was prejudicial and had influenced prospective
    jurors. First, he said that an imagery-learning factor made the defendant and the charges against him
    especially memorable. He explained that the use by the media of terms such as “Zoo Man” and
    “Cahaba Lane murders” with photographs of the defendant when he appeared “wolfman-like”
    established a strong and unforgettable mental image of a person associated with the allegations of
    violence. Second, an isolation-effect factor also made the defendant and the charges against him
    more memorable. Dr. Bebber explained that referring to the case as Knoxville’s first serial murder
    and the case “that shocked East Tennessee” made the case unique and, thus, made it stand out.
    Third, a dramatic exposition variable made the case stand out from other criminal cases in the area.
    Dr. Bebber stated that the dramatic manner in which the media reported the investigation from start
    to finish, including the fact that prominent forensic experts were involved, would cause people to
    remember the events reported in the media more vividly than any facts the defense presented at trial
    to dispute the charges. Finally, he said that a sensationalism factor also made the defendant’s case
    more memorable, stating that the substance of the news reports was of a highly sensational quality.
    Based upon his research, experience, exposure to people in the community, and review of the
    publicity, Dr. Bebber believed that an unbiased jury could not be selected in Knox County or a
    contiguous county.
    At the hearing on the motion for a change of venue, Thomas Kohntopp, an industrial
    psychologist, testified that he conducted a public opinion survey relative to the defendant and his
    cases. He admitted that this survey was only the second one he had conducted relating to fair jury
    selection. He reviewed the defendant’s motion for a change of venue, the state’s response to that
    motion, the newspaper articles regarding the defendant’s cases, and the criteria for a person to be
    eligible to serve on a Knox County jury, and based upon all of this information, he developed a
    questionnaire. He determined that the number of potential jurors in Knox County was approximately
    two hundred thousand. Based upon this number, he determined that five hundred people should be
    polled, which was done via telephone. He stated that the margin of error for the survey was plus or
    minus five percent.
    Mr. Kohntopp testified that in order to insure that the interviewees were potential jurors, the
    interviewers first asked whether the interviewee was at least eighteen years old, was registered to
    vote, and had lived in Knox County for at least twelve months. He said that he received five hundred
    seventy-three qualified responses, of which 82.2 percent responded that they had read or heard
    -110-
    something about a Knoxville legal case involving Thomas Dee Huskey, also referred to as the “Zoo
    Man,” and the 1992 serial murders of women at Cahaba Lane. Mr. Kohntopp stated that he found
    this percentage to be extremely high. The interviewees were then asked about their impression of
    Thomas Huskey, the Zoo Man. The responses were written down and then classified as favorable,
    neutral, or unfavorable. The results were 52.3 percent unfavorable, 41.4 percent neutral, and 6.3
    percent favorable. The next question was “Based upon what you have read or heard about the case,
    do you think the defendant, Thomas Huskey, also known as the Zoo Man, is definitely not guilty,
    probably not guilty, probably guilty, or definitely guilty,” to which 61.9 percent stated they thought
    the defendant was either definitely guilty or probably guilty. Mr. Kohntopp stated that although “no
    opinion” was not given as a possible response, 31.6 percent of people surveyed said that they did not
    have an opinion as to the defendant’s guilt or innocence. Finally, the interviewees who answered
    that they believed the defendant was definitely or probably guilty were asked whether the defendant
    should receive life in prison or the death penalty if convicted. About 38 percent responded that the
    defendant should receive life in prison, about 44 percent said that he should be sentenced to death,
    and about 18 percent responded that they had no opinion.
    On cross-examination, Mr. Kohntopp testified that he had only seen a jury selected one time.
    He stated that he hired students to conduct the telephone surveys and that they were trained but that
    the phone calls were not monitored. He said that the telephone calls were not recorded and that the
    students wrote down the interviewees answers. He stated that he and a clerk of one of the
    defendant’s attorneys reviewed the answers to the question regarding the interviewee’s impression
    of the defendant, and they decided how to classify the answers. He said that he included the Zoo
    Man reference in the questions because it was the general label applied to the defendant in the
    newspaper articles.
    A. The First Rape Trial
    The defendant argues that the evidence shows that a fair trial was not possible in Knox
    County and that the trial court did not properly apply Rule 21, Tenn. R. Crim. P., or Tenn. Code
    Ann. § 20-4-201. Thus, the defendant contends, the trial court improperly denied his motion for a
    change of venue. The state responds that the trial court properly denied the defendant’s motion. It
    argues that the defendant failed to present any legitimate reason to change the venue and that the
    evidence presented did not indicate that a fair and impartial jury not be selected in Knox County.
    The decision of whether to grant a motion for a change of venue based on pretrial publicity
    rests within the sound discretion of the trial court and will not be reversed on appeal absent a clear
    abuse of discretion. State v. Howell, 
    868 S.W.2d 238
    , 249 (Tenn. 1993). Furthermore, the
    defendant must show that the jurors were biased or prejudiced against him before his conviction will
    be overturned on appeal. State v. Melson, 
    638 S.W.2d 342
    , 360-61 (Tenn. 1992).
    The defendant contends that the trial court failed to determine whether “a fair trial probably
    could not be had” as required by Rule 21(a), Tenn. R. Crim. P, which provides:
    -111-
    In all criminal prosecutions the venue may be changed upon
    motion of the defendant, or upon the court’s own motion with the
    consent of the defendant, if it appears to the court that, due to
    undue excitement against the defendant in the county where the
    offense was committed or any other cause, a fair trial probably
    could not be had.
    (Emphasis added); see also Tenn. Code Ann. § 20-4-201(1) (stating venue “may be changed . . .
    upon good cause shown”) (emphasis added). The defendant insists that the trial court erred in
    denying his motion and in waiting to see if a fair jury could be selected. He argues that the pretrial
    publicity regarding his cases was so pervasive and inflammatory that a fair trial could not be had in
    Knox County. The state argues that the trial court did not abuse its discretion in denying a change
    of venue.
    Initially, we emphasize, as indicated above, that Rule 21 gives the trial court discretion
    regarding decisions to change venue. We do not believe the trial court abused this discretion.
    Regarding the defendant’s expert’s survey, we note that most of it was of questionable relevance as
    applied to the rape cases. The questions concerned the defendant’s homicide cases, asking whether
    the interviewee had heard about the serial murders and whether, if the defendant were convicted,
    they would impose a sentence of life in prison or death. Also, although 82 percent of the 573 people
    polled had heard of the defendant, the Zoo Man, or the serial murders at Cahaba Lane, that fact does
    not mean that a fair trial probably could not be had. Indeed, mere exposure to news accounts of the
    incident does not, standing alone, establish bias or prejudice. Prospective jurors can have knowledge
    of the facts surrounding the crime and still be qualified to sit on the jury. State v. Bates, 
    804 S.W.2d 868
    , 877 (Tenn. 1991). Also, whether a person’s impression of the defendant was favorable or
    unfavorable does not reflect whether the person could be an impartial juror, although we note that
    47.7 percent of the people surveyed responded that they had a neutral or favorable impression of the
    defendant even after they had been asked questions about the Zoo Man and serial murders. We are
    also skeptical of the value of the question regarding the defendant’s guilt or innocence. The
    interviewees were not even given the option of “no opinion.” Nevertheless, 31.6 percent of the
    people questioned said that they did not have an opinion regarding the defendant’s guilt or
    innocence. We do not believe that the defendant’s proof established that a fair trial probably could
    not be had.
    The defendant relies upon State v. Hoover, 
    594 S.W.2d 743
    , 746 (Tenn. Crim. App. 1979),
    in which this court listed seventeen factors to consider when determining whether to grant a change
    of venue:
    (1)   Nature, extent, and timing of pre-trial publicity.
    (2)   Nature of publicity as fair or inflammatory.
    (3)   The particular content of the publicity.
    -112-
    (4)   The degree to which the publicity complained of has
    permeated the area from which the venire is drawn.
    (5)   The degree to which the publicity circulated outside the area
    from which the venire is drawn.
    (6)   The time elapsed from the release of the publicity until the
    trial.
    (7)   The degree of care exercised in the selection of the jury.
    (8)   The ease or difficulty in selecting the jury.
    (9)   The veniremen’s familiarity with the publicity and its
    effect, if any, upon them as shown through their answers on
    voir dire.
    (10) The defendant’s utilization of his preemptory challenges.
    (11) The defendant’s utilization of challenges for cause.
    (12) The participation by police or by prosecution in the release
    of publicity.
    (13) The severity of the offense charged.
    (14) The absence or presence of threats, demonstrations or other
    hostility against the defendant.
    (15) Size of the area from which the venire is drawn.
    (16) Affidavits, hearsay or opinion testimony of witnesses.
    (17) Nature of the verdict returned by the trial jury.
    The defendant argues that all of these factors either favored changing venue or were neutral.
    While we agree with the defendant that some of the publicity was inflammatory, we note that
    much of the publicity was fair reporting of the facts. More importantly, we note the timing of the
    articles and reports cited by the defendant. The first rape trial occurred in October 1995. In
    reviewing all of the articles and reports cited by the defendant that were published before the first
    rape trial, we note that most of them were published in October or November 1992. Furthermore,
    -113-
    the latest article cited by the defendant – but still before the first rape trial – was published on April
    9, 1994, about eighteen months before the first rape trial. Thus, the timing of the publicity supports
    the trial court’s decision. Moreover, five of the Hoover factors relate to the jury selection. In this
    respect, we cannot say that the trial court erred in denying the defendant’s motion for a change of
    venue at the pretrial hearing and in opting to wait and see the jury selection process before
    determining whether a change of venue was warranted. Significantly, as we discuss in Issue XXIII,
    the defendant failed to use his peremptory challenges to strike jurors with knowledge of his other
    charges despite having an opportunity to do so. Furthermore, the jury was selected in the first rape
    case after a lengthy and thorough voir dire. We cannot conclude that the trial court abused its
    discretion in denying the defendant a change of venue in the first rape case.
    B. Consolidated Rape Trial
    On April 29, 1996, the trial court ruled on the defendant’s motion for a change of venue in
    the consolidated rape case. Because of the considerable amount of recent publicity about the case,
    the trial court ruled that a jury be selected from Hamilton County but returned to Knox County for
    the trial. The defendant contends that the trial court erred in returning the jury to Knox County. He
    complains that because the trial venue was not also changed to Hamilton County, eleven potential
    jurors were dismissed for cause because they stated that traveling to Knox County for a trial would
    be a hardship. Thus, the defendant argues, he was denied the opportunity of having these jurors sit
    on his jury. The defendant contends that moving the jurors exposed them to a prejudiced Knox
    County community through motel clerks, restaurants, and Knox County court personnel. The
    defendant also complains that the Knox County Sheriff’s Department “hosted” the jurors and “cared
    for their every need,” prejudicing him because part of his defense was that the sheriff’s investigators
    rushed to judgment. The state contends that the trial court did not abuse its discretion and the
    defendant was not prejudiced by transporting the jury to Knox County for trial, a procedure
    expressly permitted by case law and statute. We agree with the state.
    In State v. Nichols, 
    877 S.W.2d 722
     (Tenn. 1994), the defendant moved for a change of
    venue from Hamilton County. The trial court granted the motion, but only for the limited purpose
    of selecting a jury from another county. The jury, over the defendant’s objection, was then
    transported to Hamilton County for the trial. Id. at 727. Our supreme court concluded that filing
    a motion for a change of venue constituted a waiver of the defendant’s constitutional right to have
    a jury selected from the county where the crime was committed, noting that case law has interpreted
    this right to include being tried in the county where the crime was committed. Id. The court held
    that “unless the defendant is prejudiced, the administration of justice harmed, or the trial court abuses
    its discretion, no reversible error occurs when a trial court” has a jury selected from another county
    and then brought to the county of the indictment for trial. Id. at 728. The court encouraged the
    legislature to address this issue to “ensure uniformity and fairness across the state and to avoid error
    from excessive experimentation.” Id. at 729. The following year, the statute relating to change of
    venue was amended, allowing the procedure used in Nichols. Effective May 30, 1995, in all
    criminal cases,
    -114-
    (1) The venue may be changed, at any time before trial, upon
    good cause shown, as prescribed in this part; or
    (2) A court may issue an order for a special venire of jurors from
    another county if in its discretion it determines the action to be
    necessary to insure a fair trial.
    Tenn. Code. Ann. § 20-4-201. Thus, although we recognize that selecting a jury from another
    county and returning it to the county where the defendant was indicted increases the possibility of
    the jury being exposed to prejudicial information, this procedure has been expressly approved by our
    supreme court and our legislature. The defendant does not allege, and the record does not reflect,
    that the jurors actually selected were unfair or unbiased or that the court officers acted improperly
    or influenced the jury in any way. Therefore, we conclude that the trial court properly ordered a
    special venire from Hamilton County as authorized by Tenn. Code Ann. § 20-4-201(2) and Nichols.
    XI. ACCESS TO VICTIMS’ RECORDS
    The defendant contends that the trial court’s failure to allow him access to various records
    of the victims violated his right to compulsory process under the Sixth Amendment to the United
    States Constitution and article I, section 9 of the Tennessee Constitution. He argues that drug and
    alcohol treatment records, Sexual Assault Crisis Center (SACC) records, Department of Paroles
    records, Knoxville Police Department records, Knox County District Attorney’s Office records, and
    various medical or psychiatric records from the Knox County Jail and the Community Alternatives
    to Prisons Program (CAPP) enjoyed no privilege and were material to the victims’ testimony. He
    maintains that he was entitled to review these records without regard to their admissibility. The state
    contends that the trial court allowed the defendant to view the victim’s drug treatment records in the
    first rape case although they were privileged under federal law. It argues that the trial court properly
    denied access to the victim’s SACC records upon determining that they contained nothing beneficial
    to the defense. It maintains that the defendant has shown no prejudice resulting from the denial of
    either set of records. With regard to the consolidated rape case, the state contends that the defendant
    has waived this issue because his claims are wholly unsubstantiated.
    A “defendant has a fundamental constitutional right to compulsory process for the obtaining
    of witnesses and when the witness is shown to be material, the trial court has no discretion as to the
    issuance of such process.” State v. Morgan, 
    825 S.W.2d 113
    , 117 (Tenn. Crim. App. 1991); see U.S.
    Const. Amend. VI; Tenn. Const. art. I, § 9. In Tennessee, the right to compulsory process is
    extended by statute as well as the constitution. See Tenn. Code Ann. § 40-17-105 (providing that
    all criminal defendants have the right to compulsory process in order to acquire favorable witnesses).
    Unless granted a privilege or right by constitution, statute, common law, or rule, no one “may refuse
    to be a witness,” “to disclose any matter,” or “to produce any object or writing.” Tenn. R. Evid.
    501(1)-(3). Procedurally, a defendant may exercise the right to compulsory process through
    subpoenas for witnesses or documents as provided by Rule 17, Tenn. R. Crim. P. Tenn. Code Ann.
    -115-
    § 40-17-122. A court may issue a subpoena for the production of documents, may require the
    documents be produced before trial, and may permit the parties and their attorneys to inspect the
    documents once produced. Tenn. R. Crim. P. 17(c).
    On the other hand, a defendant’s right to compulsory process is not without limit:
    “A court is not required to issue compulsory process for anyone
    whom accused may designate as a witness; the constitutional
    right to compulsory process requires such process for, and only
    for, competent, material, and resident witnesses whose expected
    testimony will be admissible. Within these limitations accused
    may obtain the attendance of any witnesses he cares to use . . . .”
    Bacon v. State, 
    215 Tenn. 268
    , 273, 
    385 S.W.2d 107
    , 109 (1964) (quoting 97 C.J.S. Witnesses § 9);
    State v. West, 
    767 S.W.2d 387
    , 401 (Tenn. 1989). The trial court “has the power and the duty to
    prevent abuse of its process by abating subpoenas for witnesses whose testimony would be
    immaterial.” State v. Womack, 
    591 S.W.2d 437
    , 443 (Tenn. Crim. App. 1979). This court will
    reverse the trial court’s decision to abate a subpoena only if it has abused its discretion. State v.
    Connie Easterly, No. M2000-00077-CCA-R10-CO, Sequatchie County, slip op. at 8 (Tenn. Crim.
    App. Mar. 1, 2001); see, e.g., State v. Burrus, 
    693 S.W.2d 926
    , 929 (Tenn. Crim. App. 1985);
    Womack, 591 S.W.2d at 446; c.f. Morgan, 825 S.W.2d at 117 (noting that a trial court’s denial of
    a continuance to secure a witness is reviewed for an abuse of discretion).
    A. The First Rape Trial
    Before trial, the defendant sought the victim’s Drug and Rehabilitation Institute (DRI) and
    SACC records. On October 5, 1995, the trial court gave the defendant an excerpt from the DRI
    records but filed the balance of the DRI records under seal after reviewing them in camera. The
    court denied the defendant access to the victim’s SACC records, determining that federal regulations
    did not require their release. During trial, the defendant renewed his motion for the SACC records
    and the remaining DRI records. After reviewing all of the records in camera, the court ruled that it
    would not release the SACC records because they were not relevant to the case. It noted that the
    SACC records were not covered by any statutory privilege but stated that, as a matter of policy, a
    general privacy protection should apply unless the information became relevant to the issues at trial.
    The court noted that it would reverse its ruling if the cross-examination of the victim caused it to
    believe that the information in the SACC records was relevant.
    Before the defendant’s cross-examination of the victim, the trial court gave the defendant the
    remaining records pertaining to the victim’s DRI treatment from July 1992 to September 1992 that
    were not released before trial. The trial court denied the defendant’s motion for a continuance to
    investigate matters in the records, stating that the records did not contain any astounding new
    information. The court also obtained and reviewed additional DRI records relating to treatment of
    -116-
    the victim before July 1992. It determined that these earlier DRI records were not relevant to the
    case and stated that it would file them in the record under seal.
    We believe that the trial court properly denied the defendant access to most of the victim’s
    SACC records and to her earlier DRI records. Despite the defendant’s contentions to the contrary,
    the admissibility of the records is relevant to the trial court’s disclosure of the records under his right
    to compulsory process. See Bacon, 215 Tenn. at 273, 385 S.W.2d at 109. The trial court reviewed
    the records in camera and determined that they were not relevant to the issues at trial. We agree with
    the trial court’s determination with regard to the DRI records and most of the SACC records.
    Regarding the SACC records, the defendant contends that the victim testified that she was
    approached by an SACC employee before she spoke with the police about the rape on July 18, 1992.
    Thus, he speculates that the SACC records contain prior statements to the SACC about the rape. The
    only account of the offenses contained in the SACC records is the following, which was entered on
    a form entitled Criminal Justice Support Log Form and dated November 9, 1992: Victim
    “apprehended by assailant after he had stopped and asked her for directions. July 18, 1992.
    Assailant assaulted [the victim] in barn [at the] Knoxville Zoo.” This brief account is consistent with
    the victim’s testimony and was written almost four months after the offenses. The account is
    followed by the rather cryptic statement that “SACC/Jean Spangler accompanied to St[.] Mary’s
    ER.” It is unclear whether Ms. Spangler accompanied the victim to the emergency room, some
    unnamed person accompanied Ms. Spangler to the emergency room, or the statement merely refers
    to Ms. Spangler’s support of the victim while at the emergency room. The first possibility conflicts
    with the victim’s testimony that her aunt took her to St. Mary’s emergency room where she met with
    Jean Spangler from the SACC after telling a nurse that she had been raped. As noted by the trial
    court, the remaining SACC records consist primarily of scheduling notations.
    We believe that the phrase regarding Ms. Spangler going to the emergency room could be
    exculpatory to the defense. The trial court did not hold an evidentiary hearing regarding the SACC
    records, and we do not have the benefit of any findings from the trial court as to what the phrase in
    question means. If the victim told someone at the SACC that Ms. Spangler accompanied her to the
    emergency room, the defendant could have used this statement to impeach the victim’s account of
    her trip to the emergency room. On the other hand, if the statement refers to someone else – perhaps
    the person who prepared the Criminal Justice Support Log Form – accompanying Ms. Spangler to
    the hospital, the form would not be exculpatory. Even if exculpatory, the statement would have to
    be material before the defendant’s right to due process compelled disclosure of the form. See Brady
    v. Maryland, 
    373 U.S. 83
    , 87, 
    83 S. Ct. 1194
    , 1196-97 (1963); see also Hartman v. State, 
    896 S.W.2d 94
    , 101 (Tenn. 1995). Evidence is considered material under the standard announced in
    Brady only “‘if there is a reasonable probability that, had the evidence been disclosed to the defense,
    the result of the proceeding would have been different.’” Kyles v. Whitley, 
    514 U.S. 419
    , 433-34,
    
    115 S. Ct. 1555
    , 1565 (1995) (quoting United States v. Bagley, 
    473 U.S. 667
    , 682, 
    105 S. Ct. 3375
    ,
    3383 (1985)); State v. Edgin, 
    902 S.W.2d 387
    , 390 (Tenn. 1995).
    -117-
    In the present case, although the statement about Ms. Spangler is potentially exculpatory, we
    do not believe it to be material. The defendant thoroughly cross-examined the victim about her delay
    in telling anyone about the rape. Also, he emphasized that she had spoken with a rape counselor
    before she spoke with the police at the hospital. Thus, the defendant was able to present to the jury
    the possibility that the rape counselor colored the victim’s account of what happened in light of the
    fact that the victim had not previously claimed to have been raped. Furthermore, the records of the
    victim’s treatment at St. Mary’s Hospital state that the victim said that she had been raped, that she
    complained of a shoulder injury, and that x-rays were subsequently taken at 11:30 p.m. The hospital
    records reveal that a police officer interviewed the victim after midnight and that she met with the
    “Rape Crisis Lady” after 1:30 a.m. The state introduced the hospital records during the victim’s
    direct examination. Thus, the defendant had an opportunity to impeach the victim’s order of events
    but did not use the records to this end. Because we see no reasonable basis to believe that the
    statement relating to Ms. Spangler would probably have changed the outcome of the trial, we
    conclude that the trial court’s failure to release the Criminal Justice Support Log Form to the defense
    was at most harmless error. As for the remainder of the SACC records, we affirm the trial court’s
    determination that they were irrelevant to the case.
    Regarding his need for the DRI records, the defendant states only that the victim was
    addicted to cocaine and treated before and after the offenses on July 18, 1992. The defendant
    received the DRI records from July 1992 through September 1992 and thoroughly cross-examined
    the victim with these records at trial. We note that the defendant originally requested only those
    records relating to the period from July through October 1992, arguing the victim’s drug addiction
    was relevant to the credibility and reliability of her identification of her attacker. During trial, the
    defendant requested the victim’s earlier DRI records. The trial court found the earlier DRI records
    to be irrelevant. We cannot locate these earlier DRI records within the record on appeal in order to
    review them. The defendant does not point to the location of the sealed DRI records. See T.R.A.P.
    27(a)(7) (requiring that the appellant’s brief shall contain appropriate references to the record relied
    upon in the argument). In the jury out hearing on the records, the trial court designated the
    undisclosed DRI records as exhibit ten for identification. Exhibit ten to the first rape trial is three
    unsealed pages of the DRI records of one of the victims in the Consolidated Rape case. Our review
    of the record has not revealed the earlier DRI records of the victim in the first rape trial in another
    location. Although we appreciate the difficulties in dealing with a record of this magnitude, it
    remains the responsibility of the appealing party to make sure that the record is complete. State v.
    Ballard, 
    855 S.W.2d 557
    , 560 (Tenn. 1993) (holding that the appealing party has a “duty to prepare
    a record which conveys a fair, accurate and complete account of what transpired with respect to the
    issues forming the basis of the appeal.”). In the absence of a complete record, we must presume the
    trial court correctly found that the earlier DRI records were irrelevant. See State v. Boling, 
    840 S.W.2d 944
    , 951 (Tenn. Crim. App. 1992) (“Absent an essential part of the record, this court must
    presume that the trial court’s determination is correct.”).
    The state contends that the DRI records were privileged under 38 U.S.C. § 7332(b)(2)(D).
    This United States Code section is inapplicable to this case as it deals with the confidentiality of
    medical records generated for programs by or for the Veteran’s Health Administration. See 38
    -118-
    U.S.C. § 7332(a)(1). The record contains no indication that the victim’s DRI records fall within that
    category. On the other hand, we note that federal law provides that
    [r]ecords of the identity, diagnosis, prognosis, or treatment of any
    patient which are maintained in connection with the performance
    of any program or activity relating to substance abuse education,
    prevention, training, treatment, rehabilitation, or research, which
    is conducted, regulated, or directly or indirectly assisted by any
    department or agency of the United States shall . . . be
    confidential and be disclosed only for the purposes and under the
    circumstances expressly authorized under subsection (b).
    42 U.S.C. § 290dd-2(a). Subsection (b)(2)(C) permits disclosure without the patient’s consent in
    the following circumstance:
    If authorized by an appropriate order of a court of competent
    jurisdiction granted after application showing good cause
    therefore, including the need to avert a substantial risk of death or
    serious bodily harm. In assessing good cause the court shall
    weigh the public interest and need for disclosure against the
    injury to the patient, to the physician-patient relationship, and to
    the treatment services. Upon the granting of such order, the
    court, in determining the extent to which any disclosure of all or
    any part of any record is necessary, shall impose appropriate
    safeguards against unauthorized disclosure.
    In the present case, the record does not reveal whether the programs offered by DRI were
    “conducted, regulated, or directly or indirectly assisted” by a federal department or agency, but the
    parties and trial court acted as though the records were covered by this section and the related federal
    regulations. The defendant sought a court order for the release of the records and the trial court
    evaluated the need for disclosure. As discussed in the preceding paragraph, due to the absence of
    the earlier DRI records in the record, we must presume the trial court correctly determined that they
    need not be disclosed.
    Finally, we note that in his reply brief, the defendant summarily states that a public policy
    concern for privacy cannot trump the defendant’s state and federal constitutional rights to confront
    and cross-examine witnesses and to a fair trial. Other than this brief mention of these other
    constitutional rights, the defendant makes no argument about how the trial court’s failure to disclose
    the victim’s SACC records and early DRI records violate his rights to confrontation, cross-
    examination, and a fair trial. We view these issues to be waived. See Tenn. Ct. Crim. App. R. 10(b).
    B. Consolidated Rape Case
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    With regard to the consolidated rape case, the defendant contends that the trial court violated
    his right to compulsory process by withholding the following unprivileged records: DRI records,
    medical records from the Knox County Jail, psychiatric or medical records from the Community
    Alternative to Prisons Program, Department of Paroles Records, and unspecified records from the
    Knoxville Police Department and Knox County District Attorney’s Office relating to the victims.
    He argues that these records are relevant because two of the victims testified on direct examination
    about their drug usage, criminal histories, and current probation or parole status. Without further
    explanation, he states that the requested records were material to the testimony of these two victims.
    Regarding the DRI records, at a May 6, 1996, hearing, the trial court disclosed three pages
    of these records to the parties. The court ruled that the remainder of the records contained no
    information relating to the case and were protected from disclosure by federal regulations. The trial
    court sealed the remainder of the DRI records and made them a part of the record. As noted earlier,
    the right to compulsory process extends only to admissible, relevant evidence. See Bacon, 215
    Tenn. at 273, 385 S.W.2d at 109. In the present case, neither party has discussed the federal statute
    and corresponding regulations that extend confidentiality to drug treatment records. See 42 U.S.C.
    § 290dd-2(a); 42 C.F.R. § 2, et seq. We view the parties briefs to be inadequate in this regard,
    especially in light of the fact that this federal privilege formed one of the trial court’s two bases for
    non-disclosure. In any event, we have reviewed the sealed DRI records and agree with the trial
    court’s ruling that they are not relevant to the case.
    The defendant obtained the victims’ files from the Knox County Sheriff’s Department and
    CAPP under Tenn. Code Ann. § 10-7-503(a), which generally permits the public to inspect all state,
    county, and municipal records. The trial court determined that the defendant was not entitled to
    medical records contained within the files because those records were protected by a statutory
    exception. See Tenn. Code Ann. § 10-7-504(a)(1). The court initially delayed ruling upon a
    psychological report contained within the CAPP file in order to determine whether the victim had
    waived any privilege with regard to the report by including it in materials that she submitted to the
    court in relation to the CAPP program. Although the defendant does not point us to the trial court’s
    subsequent ruling on this issue, we observe that the trial court later noted that it had ruled that the
    medical and psychological records were protected by statute.
    The exception relied upon by the trial court provides in pertinent part as follows:
    The medical records of patients in state, county and municipal
    hospitals and medical facilities, and the medical records of
    persons receiving treatment, in whole or in part, at the expense of
    the state, county or municipality, shall be treated as confidential
    and shall not be open for inspection by members of the public.
    Id. The defendant argues that the Knox County Jail is not a hospital. The defendant never
    challenged the application of this exception on this ground before the trial court. In fact, at the
    hearing on this matter, the defendant agreed that the exception applied but argued that discovery
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    rules and the state’s duty to produce exculpatory material required the disclosure of these records
    despite the exception. The defendant may not argue that he is entitled to the medical and
    psychological records despite the exception before the trial court and then argue that the exception
    does not apply on appeal. See State v. Miller, 
    668 S.W.2d 281
    , 285 (Tenn. 1984). Based upon the
    scant record before us, which contains neither evidence of the treatment facilities at the jail nor the
    medical or psychological records in question, we believe that the records would at least be those of
    a person receiving treatment at government expense. In any event, nothing in the record contradicts
    the trial court’s finding that this exception applies to exclude these records. The defendant’s right
    to compulsory process was not violated by the trial court’s withholding of these records.
    Regarding the Department of Paroles records, the record does not reflect that the requested
    information was withheld from the defendant. During the April 17, 1996 consolidation hearing, the
    defendant requested the state’s files on any new arrests of one of the victims. The defendant argued
    that he spoke with the victim’s parole officer and learned that the parole officer was requesting a
    warrant to arrest the victim for violation of her parole for new charges against her. He stated that
    he wanted to present the trial court with this information to show that the victim had lied during her
    testimony at the consolidation hearing. After making these statements, the defendant began to argue
    other matters without securing a ruling on his request.
    After a protracted discussion of other matters, the trial court turned to the issue of what
    documents qualified as public records and had to be disclosed pursuant to the Public Records Act.
    The state asserted that it had made its closed files on the victim in question available to the
    defendant. The defendant responded that he was satisfied with the closed files that had been
    provided but wanted the District Attorney’s computer file on that victim. The state argued that its
    computer files were confidential but that it had told the defendant that any charges against the victim
    were brought in Knox County. The court noted that a statutory exception to disclosure of public
    records existed for confidential information in the District Attorney’s files relating to contemplated
    or pending legal proceedings. See Tenn. Code Ann. 10-7-504(a)(5). The trial court observed that
    a party seeking information in the possession of the District Attorney’s office and also in the
    possession of another public official must seek that information from the other public official. See
    Tenn. Code Ann. § 10-7-504(a)(5)(A)(v). It ruled that the defendant would have to get any
    information that could be obtained from the clerks of the General Sessions Court and the Criminal
    Court from those sources. It also ordered the state to comply with the Public Records Act, and the
    cases interpreting it, and to give the defendant any information discoverable under the Act. It stated
    that this information included arrests and closed files relating to the victims. From this account, it
    is not apparent to us that the defendant was denied the Department of Paroles Records. The
    defendant has not pointed to subsequent requests for these records or rulings of the trial court on this
    matter. In any event, we note that the defendant ought to have been able to retrieve information on
    new charges against the victim from the court clerks. In fact, during her cross-examination at trial,
    the victim admitted that she had been arrested on April 26, 1996; had entered a plea bargain; and
    hoped to receive help from the state regarding her parole violation. The record does not reflect that
    the defendant’s right to compulsory process was violated with regard to the parole records.
    -121-
    Finally, regarding the unspecified records of the Knoxville Police Department and Knox
    County District Attorney’s Office relating to the victims, the defendant points again to the May 10,
    1996 hearing on the Knox County Sheriff’s Department inmate files and a CAPP file of one of the
    victims. We are hard-pressed to guess to which records from the Knoxville Police Department and
    the District Attorney’s office the defendant refers. To the extent that the defendant is referring to
    the information sought at the April 17, 1996 hearing, the state noted its disclosure of closed files on
    the victim to the defendant, and the trial court ordered the District Attorney to comply with the
    Public Records Act. Otherwise, this issue is too generally presented for us to give a proper review.
    We cannot grant any relief.
    XII. IMPROPER EXAMINATION
    The defendant contends that the trial court erred by allowing the state to use improper leading
    questions on direct and redirect examination of the victims and by allowing improper redirect
    examination of the victims. The state’s only argument regarding the merits of these complaints is
    that the trial court did not err in its handling of the defendant’s objections during the state’s redirect
    examination of the victim in the first rape trial. As to the defendant’s other arguments, the state
    asserts that the defendant has waived this issue for failure to cite to any specific objection improperly
    overruled by the trial court. We agree with the state that the defendant’s citations to the record were
    inadequate. Nonetheless, we conclude that the trial court did not err relative to these complaints.
    The propriety, scope, manner and control of the examination of witnesses is a matter within
    the discretion of the trial court, whose ruling will not be disturbed absent an abuse of discretion.
    State v. Caughron, 
    855 S.W.2d 526
    , 540 (Tenn. 1993); see also State v. Chearis, 
    995 S.W.2d 641
    ,
    645 (Tenn. Crim. App. 1999) (“The admissibility of testimony and other evidence, as well as the
    scope of redirect examination, is within the discretion of the trial court.”). Rule 611(c), Tenn. R.
    Evid., provides that “[l]eading questions should not be used on direct examination of a witness
    except as may be necessary to develop testimony. Leading questions should be permitted on cross-
    examination.” Although the Tennessee Rules of Evidence do not address the scope or manner of
    redirect examination of a witness, “Tennessee law is well-settled that redirect examination can
    broach topics raised on cross-examination even though those matters were not inquired into on direct
    examination.” State v. Baker, 
    966 S.W.2d 429
    , 433 (Tenn. Crim. App. 1997).
    A. The First Rape Trial
    The defendant contends that the trial court erred by (1) allowing the state to make speaking
    objections and comments in the presence of the jury, (2) allowing the state to ask improper leading
    questions during its direct examination of the victim, (3) sustaining the state’s objections during his
    cross-examination of the victim, (4) allowing the state to ask improper leading questions during its
    redirect examination of the victim, and (5) allowing the state to offer evidence during its redirect
    examination that was not rebuttal to his cross-examination. The state contends that the defendant
    has waived these complaints for failure to cite to the record. The state also asserts that the trial court
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    did not err in its handling of the defendant’s objections during the state’s redirect examination. The
    state does not address the merits of the defendant’s other complaints.
    In his first complaint, the defendant asserts that throughout the first rape trial, the district
    attorney general made speaking objections and comments in the presence of the jury and that the trial
    court did not sustain a single defense objection to the district attorney’s actions. Initially, we note
    that in support of this claim, the defendant cites to the entire trial transcript and does not provide any
    argument. We agree with the state that the defendant has not complied with Rule 27(a)(7), T.R.A.P.,
    regarding references to the record. In any event, the record reveals that on the few occasions the
    defendant objected on these grounds, the trial court did not sustain or overrule the objections.
    Instead, the trial court told the parties to move on, which they did without further discussion, or
    objection by the defendant, at that time. We fail to see any error relative to this complaint.
    The defendant next complains that the trial court erred in overruling his objections to the
    state asking leading questions during its direct examination of the victim. The defendant’s citation
    in support of this contention is to the entire direct examination. He does not provide any argument
    relative to this complaint. Our review of the testimony reveals that the defendant objected five times
    to the state asking a leading question. Two objections were overruled, and one objection was
    sustained. The trial court responded to the other two objections by instructing the prosecutor to “be
    careful,” at which point the prosecutor continued questioning without any further objection from the
    defense at that time. We conclude that the trial court did not abuse its discretion in its handling of
    the defendant’s objections to the state’s leading questions during the direct examination of the
    victim.
    The defendant next contends that the trial court erroneously sustained the state’s objections
    during his cross-examination of the victim. The defendant’s citation in support of this contention
    is to the entire cross-examination. He does not specify which objection was improperly sustained,
    and he does not provide any argument relative to this complaint. Our review of the cross-
    examination of the victim reveals that the trial court overruled many of the state’s objections, did
    not rule on several objections with the cross-examination continuing after brief comments by the
    court or counsel, and sustained only one of the state’s objection – that objection being to the
    phraseology of a defendant’s question. This complaint is without merit.
    The defendant’s last two complaints involve the state’s redirect examination of the victim.
    Of the defendant’s five objections to leading questions on redirect, the court sustained one of the
    defendant’s objections, the court allowed two of the questions – “Are you embarrassed?” and “Did
    you attempt to give the best description of your assailant to Detective McCroskey?” – and the
    prosecutor offered to rephrase on the other two occasions. We cannot conclude that the trial court
    abused its discretion in this regard. Regarding the defendant’s contention that the state improperly
    offered evidence in its redirect examination, we note that the defendant does not provide a specific
    citation to the record or argument on this issue. In any event, the record reveals that the state’s
    redirect examination addressed matters raised in the defendant’s cross-examination, as the trial court
    found. The trial court did not abuse its discretion in controlling the examination of the victim.
    -123-
    B. Consolidated Rape Trial
    The defendant contends that the trial court erred by (1) allowing the state to make speaking
    objections and comments in the presence of the jury, (2) allowing the state to ask improper leading
    questions during its direct examination of the victims, (3) allowing the state to ask improper leading
    questions during its redirect examination of the victims, and (4) allowing the state to offer evidence
    during its redirect examination of the victims that was not rebuttal to his cross-examination. The
    state argues that the defendant has waived these issues for failure to cite to the record and to provide
    argument.
    The defendant states that he “cannot summarize the improper manner that [the state]
    examined [the four victims]. A reading of the transcript is required for a full understanding of this
    issue.” Accordingly, the defendant cited to the entire testimony of the four victims. Also, and
    importantly, the defendant does not provide any argument regarding any specific errors. We agree
    with the state that the defendant’s “argument” on this issue was inadequate. In any event, from our
    review of the record, we fail to see any reversible error relative to these complaints.
    XIII. EVIDENTIARY ISSUES RELATING TO DISCOVERY
    The defendant contends that the trial court erred in admitting certain evidence that was not
    disclosed to him during discovery and/or was not listed in the state’s notice of intention to use
    evidence. Rule 12(d)(2), Tenn. R. Crim. P., requires that upon the defendant’s request, the state will
    provide the defendant notice of its “intention to use (in its evidence in chief at trial) any evidence
    which the defendant may be entitled to discover under Rule 16.” See also State v. Louis Francis
    Giannini, No. 36, Shelby County, slip op. at 9 (Tenn. Crim. App. June 12, 1991), app. denied (Tenn.
    Nov. 12, 1991) (“The purpose of Rule 12(d)(2) is to afford the accused an opportunity to suppress
    any evidence that (a) the State intends to use in its case-in-chief and (b) is discoverable pursuant to
    Rule 16.”). Rule 16, Tenn. R. Crim. P., governs discovery and includes a provision concerning
    sanctions for failure to comply with a discovery request. See Tenn. R. Crim. P. 16(d)(2). One
    possible sanction for noncompliance is exclusion of the evidence. Id. The rules do not provide a
    sanction for noncompliance with Rule 12(d)(2). Moreover, given the rule’s purpose, we question
    the defendant’s position that the remedy for failure to disclose evidence pursuant to this rule is
    exclusion of the evidence. In any event, we address the defendant’s contentions below.
    A. The First Rape Trial
    The defendant complains about the introduction of a rope, a photograph of him taken after
    his arrest, and a photograph array that included him. The state contends that all of these items were
    properly admitted, arguing that all of them were included in its notice of intention to use evidence,
    which listed eight items, including “22 photographs,” “1 rope,” and “one picture line-up form.”
    The defendant first complains that the “six-foot rope” was not disclosed to him in discovery
    and not listed in the state’s Rule 12(d)(2) notice. Although the notice did not specify the length of
    -124-
    the rope, it did list “a rope.” Moreover, the arguments of defense counsel at trial indicate that
    counsel had known about the rope for some time. Indeed, counsel argued that there was no
    foundation for the victim to identify the rope, that the state could not establish a chain of custody,
    and that they had filed motions regarding the admissibility of rope. They also argued that the
    defendant had moved to suppress this rope. We note that the defendant’s motion to suppress relates
    to other rope discovered in his bedroom, not to the rope removed from the barn where the first rape
    victim was attacked. Although defense counsels’ argument is confusing in this respect, the state
    consistently argued before trial that it did not intend to introduce any evidence from the search of
    the defendant’s home in the first rape trial. Thus, the only rope at issue was the rope recovered from
    the barn. We cannot conclude, relative to the defendant’s complaint regarding discovery and Rule
    12(d)(2), that the trial court erred in admitting the rope into evidence.
    The defendant also contends that a photograph of him was improperly admitted. The
    photograph about which the defendant complains was introduced through the victim’s testimony to
    show how the defendant looked around the time of the crime. The defendant’s complaint within
    this issue specifically relates to the state’s failure to provide Rule 12(d)(2) notice of the photograph.
    While the state’s notice on its face is unclear in that it merely lists “22 photographs,” we note that
    the defendant moved pretrial to suppress this particular photograph. We do not believe that the
    defendant was prejudiced by any deficiency in the state’s Rule 12(d)(2) notice.
    The defendant next contends that the photograph array, about which the victim testified she
    viewed to identify the defendant as her attacker, was not listed in the state’s Rule12(d)(2) notice.
    The state contends that it was listed, citing the reference to the “one picture line-up form.” In his
    reply brief, the defendant asserts that this listed item referred to a form that was completed after the
    victim identified the defendant from the photograph array but not to the photograph array itself.
    While it is possible that the state’s notice was unclear in this regard, we note that the defendant had
    sought pretrial to suppress the photograph array. Thus, as this complaint relates to Rule 12(d)(2),
    we cannot conclude that the trial court erred in admitting this evidence.
    B. Consolidated Rape Trial
    The defendant complains about the introduction of a photograph array, testimony about a
    rope, photographs of a rope, photographs of a car, and “new” evidence during the redirect
    examination of Detective Pressley. The state contends that the defendant has waived this issue for
    failure to cite to any authority supporting his position. The state only addresses the merits of the
    defendant’s last complaint, asserting that no new evidence was introduced during the redirect
    examination of Detective Pressley.
    The record does not include a written notice of intention to use evidence; however, the state
    orally provided the defendant with such notice on February 7, 1996, stating that it intended to
    introduce in its case-in-chief only the testimony of the four victims and the photograph array that it
    had used in the first rape trial. The state did introduce this photograph array during its direct
    examination of D. C. Although the defendant complains that the trial court erred in admitting this
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    evidence, he presents no argument as to how this admission was error relative to discovery or Rule
    12(d)(2), and we fail to see any.
    The defendant next complains about the trial court allowing D. C. to testify about rope. The
    defendant and the state disagreed about whether the state had to provide notice of its intention to
    present testimony regarding suppressible evidence. The state argued that Rule 12(d)(2) only
    required it to provide notice if it intended to introduce the rope but not if it merely elicited testimony
    about the rope. We agree with the defendant that testimony regarding items of evidence that could
    be suppressed must also be included in a Rule 12(d)(2) notice. However, in this case, the state did
    not present testimony in its case-in-chief, through D. C. or any of its witnesses, about rope used by
    the defendant, other than the victims’ testifying that they were bound or that their hands were tied
    together with rope. Testimony about the type and color of rope used by the defendant was elicited
    during the state’s cross-examination of Detective Michael Freeman, who was called as a defense
    witness. Because this testimony was not presented in the state’s case-in-chief, we conclude that
    allowing this testimony was not error relative to Rule 12(d)(2). Similarly, the defendant complains
    about the introduction of photographs of rope. These photographs, however, were introduced by the
    defendant during its redirect examination of Detective Freeman. Accordingly, the trial court did not
    err in admitting these photographs.
    The defendant’s next two complaints relate to evidence introduced through Detective
    Pressley, whom the state tendered for cross-examination. First, although within this issue the
    defendant asserts that new evidence was introduced in the state’s redirect examination of Detective
    Pressley, he provides his argument relative to this complaint in Issue XXXI, in which we conclude
    that no new evidence was introduced during the redirect examination of Detective Pressley.
    Regarding the defendant’s complaint about the photographs of the car that Detective Pressley and
    G. T. saw when they arrived at Cahaba Lane, we note that the trial court only admitted one
    photograph, that being a photograph of the outside of the car. The defendant acknowledged that the
    state had shown him this photograph before. The photographs of the interior of the car were not
    admitted. We note that G. T. testified earlier in the trial, without objection, that the defendant was
    driving a gray car and that the car was at Cahaba Lane when she and Detective Pressley returned to
    the crime scene. We question whether the photograph of the outside of the car that G. T. and the
    detective saw when they arrived at Cahaba Lane is evidence which could be the subject of a motion
    to suppress. See Giannini, slip op. at 9. In any event, we fail to see how the defendant could have
    been prejudiced by a photograph of a car whose presence at the scene and description were not
    contested. We cannot conclude that the trial court abused its discretion in admitting this evidence.
    Finally, in his reply brief the defendant lists numerous items of evidence that he claims were
    not disclosed to him in discovery or were not listed in the state’s Rule 12(d)(2) notice. The
    additional items, as listed by the defendant, are: (1) pictures on May 21, 1996; (2) G. T.’s statement;
    (3) uncharged conduct of the defendant on February 27, 1992; (4) reading from D. C.’s statements;
    and (5) a car license number on the defendant’s property. First, we note that the defendant does not
    provide argument as to these items. Second, we note that some of these complaints do not relate to
    discovery or Rule 12(d)(2) notice. For example, the defendant’s complaint at trial regarding G. T.’s
    -126-
    statement was that she should not be allowed to read from her statement while he was cross-
    examining her about it. Third, we note that the defendant’s arguments at trial indicate that he knew
    about all of the items of evidence about which he now complains. Our review of the record reveals
    no discovery or Rule 12(d)(2) violation relative to any of the above-listed complaints.
    XIV. ADMISSIBILITY OF EXPERT TESTIMONY ON CHARACTER TRAITS
    The defendant contends that the trial court erroneously excluded the testimony of defense
    expert Henrietta Ogle on the character traits of persons addicted to cocaine to the extent of the
    victims. He argues that Rules 702 and 703, Tenn. R. Evid., permit experts to testify to their opinions
    on relevant character traits of witnesses. With regard to the first rape trial, he asserts that the expert’s
    proffered testimony – that people who used as much cocaine as the victim are untruthful,
    manipulative, and have a distorted view of reality – was relevant to impeach the victim’s testimony.
    He also argues that similar testimony should have been permitted in the consolidated rape trial with
    regard to two victims, who testified about their drug use on direct examination. Pointing to the fact
    that the expert never examined any of the victims, the state contends that general expert testimony
    regarding the credibility of witnesses is inadmissible. We agree with the state.
    In the first rape trial, the defendant called Henrietta Ogle as an expert in diagnosing,
    evaluating, and treating individuals addicted to drugs. The victim’s Detoxification and
    Rehabilitation Institute (DRI) records reflect that she reported using two and one-half grams of
    cocaine daily from January 1992 through July 1992. Ms. Ogle testified that two and one-half grams
    of cocaine would have a street value of three to four hundred dollars and that smoking that amount
    per day would be a severe addiction. The defendant sought to question her about the character for
    honesty in persons addicted to that extent, and the state objected. In a jury-out hearing, Ms. Ogle
    testified that persons with a severe addiction are very manipulative, have a distorted view of reality
    and honesty, and are unreliable. She stated that she did not know the victim and based her opinion
    only upon persons that she had previously treated and the victim’s DRI records. She denied that
    everyone addicted to cocaine was dishonest but said that, generally, people using cocaine were very
    unreliable and untruthful. Following this proffer, the trial court determined that Ms. Ogle was
    speaking generally and was not in a position to testify about the victim’s truthfulness. It also found
    her testimony on the victim’s truthfulness to be untrustworthy information under Rule 703, Tenn.
    R. Evid. In the consolidated rape case, the defendant asked the court whether it would permit Ms.
    Ogle to testify as an expert in alcohol and drug counseling about the effects of drugs and alcohol on
    the drug addict’s ability to function. Noting that the defendant was seeking the same testimony that
    he sought in the first rape trial, the trial court ruled that it continued to believe that the expert was
    not qualified to give this testimony.
    Rule 702, Tenn. R. Evid., permits an individual qualified by experience, training, or
    education to testify to his or her opinion if “scientific, technical, or other specialized knowledge will
    substantially assist” the jury in understanding the evidence or determining a fact in issue. The
    Tennessee Supreme Court has broadly held that expert testimony regarding the credibility of
    -127-
    witnesses is inadmissible because juries do not need assistance in assessing a witness’s credibility.
    See State v. Coley, 
    32 S.W.3d 831
    , 835 (Tenn. 2000) (emphasizing that “the assessment of witness
    credibility . . . is always left to the jury”); State v. Ballard, 
    855 S.W.2d 557
    , 562 (Tenn. 1993)
    (holding that expert testimony that the victims exhibited symptoms of post-traumatic stress
    syndrome generally found in child sex abuse victims “invades the province of the jury to decide on
    the credibility of the witness”).
    In Coley, our supreme court determined that “general and unparticularized expert testimony
    concerning the reliability of eyewitness testimony, which is not specific to the witness whose
    testimony is in question, does not substantially assist the trier of fact.” 32 S.W.3d at 838. Similarly,
    in the present case, Ms. Ogle’s general testimony that persons using two and one-half grams of
    cocaine daily are untruthful and unreliable is relevant only to the victim’s credibility and is,
    therefore, inadmissible. The defendant cross-examined the victims about their drug addictions.
    Under Coley, the jury was capable of weighing the credibility of their testimony in light of the
    victims’ addictions without the aid of an expert. Furthermore, as the state points out, the jury heard
    Dr. Paul E. Kaufman, an expert in forensic medicine, testify in the first rape case about the effects
    of ingesting two and one-half grams of cocaine per day for six months: substantially impaired
    judgment, memory, and ability to concentrate or recall and describe events accurately. In the
    consolidated rape trial, Dr. Kaufman testified that a person abusing drugs to the extent that one
    victim admitted would have a substantially impaired memory, judgment, and ability to recall and
    restate events and that people with serious drug problems tend to lie to maintain their lifestyle. With
    regard to another victim, Dr. Kaufman addressed a hypothetical regarding a person that used two
    hundred dollars of cocaine per day, used acid, injected Demerol, and drank alcohol excessively,
    concluding that the person would have characteristics similar to the ones he described relative to the
    other victim.
    The defendant relies upon State v. Shuck, 
    953 S.W.2d 662
     (Tenn. 1997), to argue that experts
    may give opinions on a person’s relevant character traits. In Shuck, the supreme court held that
    expert testimony that a defendant’s mental condition rendered him susceptible to inducement was
    admissible although it related to the ultimate issue of whether the defendant was entrapped. Id. at
    669; see Tenn. R. Evid. 704. In so holding, the court observed that although expert testimony is not
    inadmissible because it embraces an ultimate issue, it must still be otherwise admissible, e.g., it
    cannot invade the jury’s determination of credibility. Id. (noting that Ballard held that expert
    testimony relating to an ultimate issue was inadmissible because it attempted “to evaluate the
    credibility of witnesses, a task which a jury is capable of performing without expert testimony”).
    In the present case, the defendant argues that Ms. Ogle’s testimony is relevant to the jury’s weighing
    of the victims’ credibility and, thus, the holding in Shuck avails him no relief. We hold that the trial
    court properly excluded Ms. Ogle’s testimony that individuals who used cocaine to the extent of the
    victims were untruthful.
    XV. MOTIONS FOR MISTRIAL
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    The defendant contends that the trial court erred in denying three of his motions for mistrial,
    two of which were made in the first rape trial and one of which was made in the consolidated rape
    trial. The state contends that the trial court properly refused to grant mistrials.
    The decision of whether to grant a mistrial is within the sound discretion of the trial court,
    and this court will not disturb that decision absent a finding of abuse of discretion. State v. Adkins,
    
    786 S.W.2d 642
    , 644 (Tenn. 1990); State v. Williams, 
    929 S.W.2d 385
    , 388 (Tenn. Crim. App.
    1996). The entry of a mistrial is appropriate when the trial cannot continue, or, if the trial does
    continue, a miscarriage of justice will occur. State v. McPherson, 
    882 S.W.2d 365
    , 370 (Tenn. Crim.
    App. 1994); see also State v. Seay, 
    945 S.W.2d 755
    , 764 (Tenn. Crim. App. 1996) (“The purpose
    for declaring a mistrial is to correct damage done to the judicial process when some event has
    occurred which precludes an impartial verdict.”). A mistrial will be declared in a criminal case only
    when there is a “manifest necessity” requiring such action by the trial court. State v. Millbrooks, 
    819 S.W.2d 441
    , 443 (Tenn. Crim. App. 1991). A manifest necessity is shown only when there is “no
    feasible alternative to halting the proceedings.” State v. Knight, 616 S.W.2d, 593, 596 (Tenn. Crim.
    App. 1981). The defendant has the burden of establishing a manifest necessity. Seay, 945 S.W.2d
    at 764.
    A. The First Rape Trial
    The defendant contends that the trial court erred in denying two motions for mistrial. The
    defendant complains that a mistrial should have been granted after the jury was confronted by
    protestors against the defendant on its way to lunch. He argues that the confrontation constituted
    a break in the sequestration of the jury. The defendant also contends that the trial court erred by
    denying a mistrial after it called a defense argument “bullshit” in the presence of the jury.
    After lunch on October 18, 1995, which was before any witnesses had testified, the trial court
    asked the jurors whether any of them had heard any comments about the case while on their way to
    lunch. Four jurors indicated that they had, and the attorneys were allowed to question them. Juror
    Shelton stated that as she and the other jurors were waiting for the bus to take them to lunch, two
    females ran behind them and said “‘give him life’ or something like that.” She stated that she could
    put the comments completely out of her mind and that the comments did not have any impact on her
    and would not affect her ability to listen to the evidence and render a fair and impartial verdict. Juror
    Rogers said that two females ran past them, and one shouted “put him away for life.” He stated that
    the comments would not affect him or his ability to serve as a juror in the case. He also stated that
    none of the jurors talked about this incident during lunch. Juror McKenzie stated that two females
    ran behind them as they were waiting for the bus and shouted “give him life.” He said that the
    comments would not affect him in any way. Juror Varner stated that two females ran out the door
    behind them and said “put him away for life, put him away for life” as they ran around the corner.
    She said that the comments did not have an impact on her and would not affect her ability to make
    a decision based upon the evidence.
    -129-
    The defendant contends that a mistrial should have been granted because of the prejudice to
    him resulting from this incident. He argues that the prejudice was heightened because the Knox
    County jury had knowledge about the defendant, the murders, and the other rapes. We disagree. As
    soon as the jurors returned from lunch, the trial court, which had been advised of the incident,
    questioned the jurors about it. All of the jurors who heard the comments were then questioned by
    both parties, and each juror stated that the incident would not affect his or her ability to listen to the
    evidence and render a fair and impartial verdict. We cannot conclude that this incident constituted
    a manifest necessity requiring a mistrial. The trial court did not abuse its discretion in denying the
    defendant’s motion for a mistrial based upon the jury’s exposure to these protestors.
    The defendant also argues that this incident constituted a separation of the sequestered jury
    and that once a separation is shown, the state has the burden of showing that such separation did not
    result in prejudice to the defendant, otherwise a new trial must be granted. We conclude that the
    defendant has not shown that the jury separated. The key in determining whether there was jury
    separation is whether “a juror was outside the presence and control of a court officer.” State v.
    Bondurant, 
    4 S.W.3d 662
    , 673 (Tenn. 1999). The defendant does not allege, and there is no proof
    in the record, that any juror was not with the group going to lunch or that the jurors were not under
    the supervision of the court officers when this incident occurred. To the extent the event should be
    viewed as giving extraneous information to jurors, the testimony of the jurors reflects that no
    prejudice was incurred.
    The defendant next contends that the trial court erred in failing to grant a mistrial after the
    trial court commented that a defense argument was “bullshit.” During the state’s redirect
    examination of the victim in the first rape trial, the state asked her why she did not run to a stranger
    and tell him or her what had happened. The victim responded, “I was terrified. I was in shock. I
    have never been in this position before, and I’d never had anything like that happen to me.” Defense
    counsel then asked to approach the bench, but what occurred thereafter – the defense counsel’s
    comments, the court’s remark, and the parties’ responses – were not recorded by the court
    stenographer because of an equipment malfunction. After learning of the missing portion of the
    transcript, the defendant filed a proposed statement of the evidence on December 14, 1998, which
    provided the following: Both defense attorneys approached the bench, but the district attorney
    remained at the state’s counsel table. One of the defense attorneys stated to the court that the victim
    had opened the door for questioning about her Sexual Assault Crisis Center (SACC) records. The
    trial court responded, “Bullshit,” loudly enough for the jury to hear, and the jury laughed. The court
    then stated, “Ladies and gentlemen, I should not have said that and I apologize.” The district
    attorney then said, “The state agrees with your Honor,” to which the jury laughed again. At this
    point, the defendant moved for a mistrial, which the court denied, stating that it was sorry for the
    comment, that it told the jury that it should not have said it, that it apologized, and that “is all that
    is necessary.” The defendant then requested a limiting instruction, but the court refused, stating that
    it “apologized and that is it.”
    The state did not file an objection to the statement of the evidence, and on January 5, 1999,
    the defendant sought the trial court’s approval of the statement. However, the trial court stated that
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    it had instructed the jury to disregard the remark in addition to apologizing. The trial court stated
    that he would consider what the defendant filed but added that the defendant’s version of what
    occurred was not accurate.
    On July 8, 1999, the trial court amended its order denying the defendant’s motion for a new
    trial. The court acknowledged making the remark and that the remark was inappropriate but
    provided a slightly different version of the incident. The amendment provides that defense counsel
    was objecting to every question asked by the state on its redirect examination of the victim and that
    after she answered that nothing like “that” had happened to her, both defense counsel simultaneously
    stood and said that she had “opened the door.” The court responded “bullshit,” and the jury laughed.
    In the amendment, the court stated that it did not believe the remark affected the jury in any material
    way, noting that it apologized and instructed the jury to disregard the remark at that time. The trial
    court added that in its final jury instructions, it had instructed the jury to disregard any evidentiary
    rulings made by the court.
    Although the defendant and the trial court remember the incident differently, the trial court’s
    rendition controls. See T.R.A.P. 24(3). In any event, we do not believe the remark constituted a
    manifest necessity requiring a mistrial. The trial court’s comment was clearly inappropriate, which
    the state concedes and the court admitted. Importantly, however, the court immediately addressed
    the jury after making the remark, stating that it should not have made it and that it was sorry. We
    do not believe, given the context of the remark and the court’s apology, that the remark prejudiced
    the defendant or damaged the judicial process such that an impartial verdict was precluded. See
    Seay, 945 S.W.2d at 764. We conclude that the trial court did not abuse its discretion in denying the
    defendant a mistrial on this ground.
    B. Consolidated Rape Trial
    The defendant contends that the trial court erred in refusing to grant a mistrial based upon
    the prosecutor’s misconduct. The defendant’s complaints about the prosecutor’s conduct include
    the following:
    (1) He made improper and inflammatory arguments, including
    referring to the consolidated cases as a “reign of terror” and the
    defendant as “evil personified” during his opening statement.
    (2) He made facial expressions toward the state’s witnesses when
    the defendant was conducting his cross-examination.
    (3) He turned his chair to face the defendant and glared at him
    with “an angry and disgusted expression.”
    -131-
    (4) He did not attend bench conferences and, instead, while the
    defense attorneys were at the bench, glared at the defendant or
    smiled at the jury.
    (5) He demeaned defense counsel and the defendant.
    (6) He spoke in a voice loud enough for the jury to hear when
    sitting at the state’s counsel table.
    (7) He walked to the back of the courtroom in disgust.
    (8) He referred to the witnesses by their first names.
    (9) He displayed evidence to the jury prior to the defense having
    an opportunity to object.
    The state contends that none of the prosecutor’s actions warrant a reversal.
    We note that the defendant has not cited to the record regarding most of these alleged acts
    of misconduct. Nonetheless, from our review of the record, we cannot say that a mistrial was
    warranted based upon the prosecutor’s conduct. We address in detail the defendant’s complaints
    regarding the state’s opening statement and closing argument in his next issue, in which we
    recognize that some of the prosecutors comments were improper but conclude that the improper
    comments did not affect the verdict to the prejudice of the defendant. Likewise, we cannot say that
    the prosecutor’s improper comments amounted to manifest necessity for a mistrial.
    The defendant next complains that the prosecutor made facial expressions toward the state’s
    witnesses when he was cross-examining them. Although the defendant does not cite to the specific
    instances about which he complains, our review of the record reveals three occasions when the
    defendant voiced an objection to the prosecutor’s “expressions.” At a bench conference during the
    cross-examination of D. L., defense counsel stated, “I don’t know if it is inadvertent, but she keeps
    looking at Detective Johnson, and he keeps nodding his head.” The court responded that it had been
    watching and had not seen this, stating that he did not believe that the state would coach its
    witnesses. A second time, defense counsel, after asking D. L. a question, told her not to look at the
    prosecutor. D. L. said she was not, and the court stated that it did not see her look anywhere.
    Finally, at a bench conference during the cross-examination of A. D., one of the defendant’s
    attorneys moved for a mistrial, stating that after he asked a question but before A. D. answered, A.
    D. looked at the prosecutor, who shook his head to indicate no. Before the court responded, the
    defendant’s other attorney complained that at that very moment the prosecutor was staring at the
    jury. The court then asked defense counsel where he wanted the prosecutor to look, to which
    defense counsel asked why the prosecutor was not at the bench. The court then instructed, “Let’s
    go on,” and the defendant complied without further comment. We note that the defendant did not
    move for a mistrial on the first two occasions and did not secure a ruling on the third occasion. In
    -132-
    any event, we conclude no proof is in the record of any improper conduct in this regard.
    Accordingly, a mistrial was not warranted based upon the prosecutor’s alleged facial expressions to
    witnesses.
    The defendant next complains that the prosecutor turned his chair to face the defendant and
    glared at him with an angry and disgusted expression on various occasions throughout the trial. Of
    course, from the record before us, we cannot view the expression about which the defendant
    complains. However, the court did view the prosecutor’s conduct. Indeed, on one occasion, the
    defendant voiced his objection to the prosecutor’s rocking and glaring. The court stated that it saw
    what the prosecutor was doing but that “sitting there looking at the defendant, to me, is not offensive.
    . . . If I see something that I consider to be offensive, I will address it.” The court later stated that
    it would not order the prosecutor not to look at the defendant. Although we question the
    professionalism of the prosecutor’s conduct, in light of the fact that the trial court did not believe it
    to be offensive, we cannot say that the trial court abused its discretion in refusing to grant a mistrial
    based upon this conduct.
    The defendant also contends that the trial court should have granted him a mistrial because
    the prosecutor did not attend bench conferences and, instead, while the defense attorneys were at the
    bench, glared at the defendant or smiled at the jury. First, we cannot say that it was prosecutorial
    misconduct not to approach the bench each time the defendant asked if he could approach. Indeed,
    the prosecutor asked the trial court if he were required to come to the bench with defense counsel,
    and the trial court said that he was not. Additionally, as noted above, the trial court stated that it had
    seen the manner in which the prosecutor faced and looked at the defendant, that it was not offensive,
    and that it would address the conduct if it became offensive. Regarding the prosecutor’s smiling at
    the jury, again, we cannot view the conduct about which the defendant complains. This conduct
    occurred when defense counsel was at a bench conference during the cross-examination of A. D.
    During the bench conference, defense counsel complained that the prosecutor was staring at the jury,
    to which the court asked where defense counsel wanted the prosecutor to look. At this point, the
    defendant complained that the prosecutor should be at the bench conference, and then the transcript
    reflects that the remainder of the conference was inaudible because the defense attorneys were
    speaking at the same time. The court then stated, “Let’s move on,” and the defendant complied
    without voicing any further objection. The record contains no proof that the prosecutor behaved
    improperly in looking at the jury. We cannot conclude that the trial court abused its discretion in
    refusing to grant a mistrial based on the prosecutor not attending bench conferences and, instead,
    looking at the defendant or the jury.
    The defendant next contends that a mistrial should have been granted because the prosecutor
    demeaned defense counsel and the defendant. Initially, we note that although the defendant moved
    for a mistrial on numerous occasions, he never moved for one on these vague grounds. We presume
    that the defendant’s other complaints within this issue, e.g., staring at the defendant and walking to
    the back of the courtroom while defense counsel was talking, encompass the prosecutor’s behavior
    which he believes demeaned him and his counsel. In any event, the record does not reveal behavior
    -133-
    by the prosecutor demeaning the defendant or his attorneys that warranted the granting of a mistrial.
    The defendant also contends that the trial court should have granted a mistrial because the
    prosecutors spoke loudly enough for the jury to hear when they were sitting at the state’s counsel
    table. The defendant objected to the prosecutors whispering to each other “while facing the jury”
    statements like “they are going to get it in before the jury.” The court refused to impose a rule
    preventing co-counsel from talking, noting that when one of the defense attorneys “whispered” to
    his co-counsel, which he did frequently, everybody in the courtroom heard him. However, the court
    ordered the prosecutors to control their whispering and not to make any inappropriate comments.
    The defendant did not raise this issue again during the trial. Moreover, there is no proof that any of
    the jurors heard what the prosecutors whispered or that what they whispered was inappropriate. We
    conclude that a mistrial was not warranted based upon this ground.
    The defendant next contends that the trial court should have granted a mistrial because the
    prosecutor walked to the back of the courtroom in disgust. During a jury-out hearing, defense
    counsel suggested to the court that some Knox County Sheriff’s deputies, including some who had
    been subpoenaed in the case, had talked amongst each other about the proceedings and their
    testimony. The district attorney stated, “I choose not to hear this.” After a brief exchange between
    the attorneys, the district attorney asked the court if he could be excused, to which the court
    responded, “Go ahead. We are going to take a little recess.” Defense counsel continued talking,
    stating, “My objection – could the record reflect [the prosecutor] is walking out of the courtroom?”
    The prosecutor replied, “In utter disgust.” This incident did not occur in the presence of the jury,
    and the defendant did not move for a mistrial at this time. Moreover, before the prosecutor walked
    to the back of the courtroom, the trial court specifically excused him, stating that it was taking a
    recess. Although defense counsel continued to voice an objection, the court recessed almost
    immediately thereafter. We conclude that a mistrial was not warranted based upon this conduct.
    The defendant contends that the trial court should have granted a mistrial because the
    prosecutor referred to the witnesses by their first names. Although the defendant fails to cite to the
    specific instances of which he complains, the record reveals that the prosecutor addressed A. D. by
    a nickname on two occasions. The first time, on direct examination, the defendant did not object.
    At the beginning of his redirect examination, the prosecutor mentioned the nickname and the
    defendant immediately objected. The prosecutor apologized and continued his questioning,
    addressing the witness as A. D. Again, we note that the defendant did not move for a mistrial. In
    any event, we cannot say that these two instances amount to prosecutorial misconduct. This
    complaint is without merit.
    The defendant also complains that the prosecutor displayed evidence to the jury before the
    defense had an opportunity to object. The defendant does not cite to the record the instance or
    instances underlying this complaint. However, the complaint appears to be referring to the
    prosecutors displaying a rope and a photograph of the defendant in the first rape trial. Conduct from
    the first rape trial would not be grounds for a mistrial in the consolidated rape trial. Furthermore,
    to the extent that the defendant is complaining about the evidence used by the state in the
    -134-
    consolidated rape trial, we addressed those complaints in the defendant’s thirteenth issue regarding
    the admissibility of evidence not disclosed in discovery or in the state’s Rule 12(d)(2) notice.
    Although we conclude that the trial court did not abuse its discretion in denying any of the
    defendant’s motions for a mistrial, we recognize that the cumulative effect of prosecutorial
    misconduct warrants a reversal when the misconduct affected the verdict to the prejudice of the
    defendant. See State v. Buck, 
    670 S.W.2d 600
    , 609 (Tenn. 1984). However, as set forth above,
    almost all of the defendant’s complaints did not involve misconduct by the prosecutor. Moreover,
    we cannot say that the few instances of improper conduct, specifically the prosecutor’s improper
    remarks in his opening statement and closing argument, as discussed within the next issue, more
    probably than not affected the verdict to the defendant’s prejudice.
    XVI. OPENING STATEMENTS AND CLOSING ARGUMENTS
    The defendant contends that the state made improper and prejudicial comments during its
    closing argument in the first rape trial, requiring reversal of his convictions and a new trial. He also
    contends that he should be granted a new trial because of the state’s improper comments in both its
    opening statement and closing argument in the consolidated rape trial. The state contends that its
    closing argument in the first rape trial was proper. It also contends that most of the alleged improper
    comments in the consolidated rape trial were proper and that none of the improper ones require
    reversal.
    When a defendant raises the issue of prosecutorial misconduct based upon improper
    comments, the defendant is required to show that the argument was so inflammatory or so improper
    that it affected the verdict to his or her detriment.” State v. Seay, 
    945 S.W.2d 755
    , 763 (Tenn. Crim.
    App. 1996). Factors relevant to that determination include:
    1. The conduct complained of viewed in context and in light of
    the facts and circumstances of the case.
    2. The curative measures undertaken by the court and the
    prosecution.
    3. The intent of the prosecutor in making the improper statement.
    4. The cumulative effect of the improper conduct and any other
    errors in the record.
    5. The relative strength or weakness of the case.
    Judge v. State, 
    539 S.W.2d 340
    , 344 (Tenn. Crim. App. 1976). Our supreme court has recognized
    that closing argument is a valuable privilege for both the state and the defense and that counsel is
    -135-
    afforded wide latitude in presenting final argument to the jury. See State v. Cribbs, 
    967 S.W.2d 773
    ,
    783 (Tenn. 1998); State v. Cone, 
    665 S.W.2d 87
    , 94 (Tenn. 1984).
    A. The First Rape Trial
    The defendant contends that the prosecutor’s closing argument was improper because he
    (1) referred to the defendant as the “human predator”;
    (2) bolstered the victim’s credibility by praising her and thanking
    her for her courage;
    (3) stated personal opinions;
    (4) implied that the defendant had the burden of proof or an
    obligation to produce evidence;
    (5) invited the jury to return to the sentencing hearing and watch
    the defendant go to prison;
    (6) characterized the defendant’s case as a “big, big lie”;
    (7) made inflammatory comments about defense counsel;
    (8) referred to a juror by name; and
    (9) made inflammatory comments appealing to the jury’s
    sympathy for the victim or her family.
    The defendant’s first complaint is that the prosecutor referred to him as the “human
    predator.” The prosecutor argued, “The big, big truth is that Thomas Dee Huskey, cruising down
    Fifth Avenue on Saturday morning, the human predator, snatched her in and had his way.” The state
    contends that this phrase was not derogatory and accurately described the defendant’s actions. We
    disagree. We believe that describing the defendant as a human predator was derogatory and
    improper. See People v. Peeples, 
    616 N.E.2d 294
    , 322 (Ill. 1993) (referring to the defendant as the
    human predator was improper); see also State v. Cauthern, 
    967 S.W.2d 726
    , 737 (Tenn. 1998) (using
    epithets to characterize the defendant is improper).
    The defendant next contends that the prosecutor improperly bolstered the victim’s credibility
    by praising and thanking her for her courage. The prosecutor argued, “And now you know why
    [rapes] oftentimes [are] not reported, because you are now – you’ve had the opportunity to see what
    happens. Thank you [victim], for being strong. Thank you [victim], for getting in front of these
    -136-
    people that you don’t know and reliving this ordeal and embarrassing yourself beyond all measure.”
    At this point, the defendant objected, and the court told the prosecutor, who was apparently facing
    the victim, who was sitting in the audience, to address the jury. We conclude that these comments,
    especially considering that the prosecutor was addressing the victim and not the jury, were
    inappropriate.
    The defendant also contends that the prosecutor stated his personal opinions regarding the
    credibility of witnesses and the guilt of the accused during his closing argument. Although the
    defendant does not cite the specific instances about which he complains, the basis of this complaint
    appears to be that the prosecutor repeatedly used “I” and “we” during his argument. Our review of
    the closing argument does not reveal any misconduct in this respect. Initially, we note that although
    it is improper for a prosecutor to express a personal belief or opinion, this court has noted that if the
    “argument is predicated by the words ‘I think’ or ‘I submit,’ it is unlikely to be adjudged as a
    personal opinion.” Coker v. State, 
    911 S.W.2d 357
    , 368 (Tenn. Crim. App. 1995). Thus, it is not
    necessarily misconduct each time a prosecutor uses “I” or “we.” Moreover, in this case, the
    defendant’s first objection to the prosecutor’s argument was when the prosecutor stated, near the
    beginning of his argument, “Now, we’re asking you to convict him . . . . I’m asking you to convict
    him . . . .” After the defendant objected, the prosecutor volunteered to rephrase and stated, “The
    State of Tennessee, the people of the county of Knox are asking you to convict” the defendant. Even
    though the prosecutor used the words “I” and “we” after this incident, we do not believe their context
    was of significance.
    The defendant next contends that the prosecutor implied that the defendant had the burden
    of proof or an obligation to produce evidence. At the end of the prosecutor’s closing argument, the
    prosecutor encouraged the jury to listen closely to the defendant’s argument, stating,
    You listen and then you think about, while they’re talking to you,
    in your mind you – you think and you let them know by the way
    you’re thinking, we want to know where the big lie is in the stall.
    We’re not concerned about 1991. We’re not concerned about
    1989. We’re concerned with July the 18th, 1992, at 7:30 to 8
    o’clock in the morning at a stall at the zoo. Now, you talk about
    that, and you convince us of the big, big lie on those activities,
    and we’ll acquit him.
    This argument was a response to the defendant’s opening statement and proof. The defendant
    claimed in his opening statement that the victim’s story was a “big, big lie.” Moreover, the
    defendant vigorously attacked the victim’s credibility during the trial. The prosecutor’s argument
    here asked the jury to focus on the facts of the offense, suggesting that although the defendant had
    attacked the victim’s credibility, he had not impeached her relative to her story of being raped by the
    defendant. We conclude that this argument was proper.
    -137-
    The defendant’s next complaint relates to the prosecutor’s inviting the jury to return to the
    sentencing hearing and watch the defendant go to prison. The prosecutor ended his rebuttal closing
    argument by asking the jury to find the defendant guilty and “then come back at sentencing and
    watch him go to prison.” The defendant contends that this was a comment on the general problem
    of crime in the community and that it implied that the jury had a duty to protect the community. We
    disagree that this comment produced such an implication, and we note that the defendant does not
    explain how such an implication is derived from this comment. However, because the comment was
    not based upon the evidence and was totally irrelevant to the defendant’s innocence or guilt, it was
    inappropriate. See Cauthern, 967 S.W.2d at 737.
    The defendant contends that the prosecutor improperly referred to his defense as a “big, big
    lie.” As noted above, in the defendant’s opening statement, he stated that the case was a big, big lie.
    In the state’s closing argument, the prosecutor played on this phrase, discussing the evidence and
    then asking where the big lie was and commenting that the big lie never showed up. We cannot
    conclude that this was improper argument.
    The defendant also contends that the prosecutor made inflammatory comments about defense
    counsel, arguing that it was improper to comment about what “Herb” did. While it is true that the
    prosecutor referred to one of the defendant’s attorneys by his first name, the defendant does not
    explain how this was inflammatory.
    The defendant next argues that the prosecutor improperly referred to a juror by name. The
    prosecutor argued,
    And whomever is elected the foreperson of this jury walk back in
    in a few minutes, and whoever it is will sit here where Mr.
    Gorman is, and the judge is going to ask you to rise. And rise up,
    foreman – foreperson of this jury, and when he tells him to stand,
    look him in the eye and say, we, the jury, find Thomas Dee
    Huskey guilty.
    Generally, it is improper to address a juror individually or by name during argument. See Pendleton
    v. Evetts, 
    611 S.W.2d 607
    , 608 (Tenn. Ct. App. 1981); see also Johnson v. State, 453 N.E.2d, 365,
    369 (Ind. Ct. App. 1983) (holding that it was improper to address a juror by name because in doing
    so a juror would be “especially likely to be influenced by a direct appeal to his or her individual fears
    or prejudices”); Annotation, Prejudicial Effect of Counsel’s Addressing Individually or by Name
    Particular Juror during Argument, 
    55 A.L.R. 2d 1198
    , 1199 (1957) (stating that the reason for not
    allowing counsel to address jurors by name is the “fact that it brings to bear a collateral influence
    which may tend to prejudice the mind on the basis of something irrelevant to the real issues of a
    case”). However, in this case, the prosecutor did not use the juror’s name to make a direct appeal
    to him or to try to influence him in any way. Rather, the prosecutor used the juror’s name only to
    indicate where the foreperson would sit. Thus, although the prosecutor used a juror’s name, it was
    -138-
    in the context of informing the entire jury of a particular location. We conclude that the prosecutor’s
    using the juror’s name in this way did not constitute an improper argument.
    The defendant’s last contention regarding the prosecutor’s closing argument in the first rape
    trial is that the prosecutor made inflammatory comments appealing to the jury’s sympathy for the
    victim or her family. Again, the defendant does not cite the portion of the argument that supports
    this claim. However, we note that the prosecutor questioned the defense’s theory that the victim was
    simply maintaining a lie, arguing,
    [I]t was a terrible trade, wasn’t it, [T.H.], to stand here on this
    stand before people that you have never seen before in your life,
    your mother, members of the press, the citizens of this county and
    relate this horrific story? You’re going to go through that.
    You’re going to go through that to maintain the big, big lie.
    We do not believe that this argument was improper. Moreover, from our review of the prosecutor’s
    argument, we fail to see any other improper argument in this regard.
    Finally, we must determine whether the prosecutor’s improper comments – referring to the
    defendant as the “human predator”; addressing the victim, who was in the audience, and thanking
    her for her courage; and inviting the jury to return to watch the defendant go to prison – warrant a
    reversal in this case. First, the prosecutor referred to the defendant as the human predator only one
    time. The defendant did not object at the time or at the end of the arguments when additional
    objections were made, see State v. Little, 
    854 S.W.2d 643
    , 651 (Tenn. Crim. App. 1992) (holding
    that a complaint of improper argument is waived “for failure to make an objection during
    argument”), and thus, the trial court did not provide a curative instruction regarding this comment.
    Also, although inviting the jury back to the sentencing hearing was improper, because of the nature
    of the charges, the jury almost certainly knew that the defendant would go to prison if convicted.
    Indeed, the trial court instructed the jury about the range of punishment for each charged offense.
    Considering the improper comments in this light, as well as the trial court’s instructions to the jury
    that arguments of counsel were not evidence and that its decision was to be based upon the evidence,
    we cannot say that the improper argument affected the verdict to the prejudice of the defendant.
    B. Consolidated Rape
    The defendant contends that the prosecutor made improper statements in his opening
    statement and closing argument. The defendant complains that the prosecutor
    (1) referred to the cases as a “reign of terror”;
    (2) stated his personal opinions;
    (3) argued that victims were saved “by the grace of god”;
    -139-
    (4) stated that the evidence would include “the most sordid
    details of decadence and pure evil that you have ever seen, that
    you have ever heard”;
    (5) referred to the defendant as “evil personified”;
    (6) stated, “The necessity of evil to prevail is for good people not
    to come forward.”;
    (7) provided the jury with an improper standard of reasonable doubt;
    (8) referred to the defendant as the “human predator”;
    (9) stated that the defendant preyed “on the weakest of the weak”;
    (10) described the defendant’s conduct as “brutalization”;
    (11) acknowledged that he made a mistake relative to the bill of
    particulars;
    (12) stated that he was paid by the people of Knox County and
    that prosecuting was a full-time job;
    (13) stated that he was “not ashamed of this prosecution, and
    these ladies have told you the truth”;
    (14) made inflammatory comments regarding defense counsel;
    and
    (15) implied that the defendant had the burden of proof or an
    obligation to produce evidence.
    Regarding the defendant’s first complaint, the prosecutor described the defendant’s course
    of conduct as a “reign of terror” in his opening statement and closing argument. The state argues
    that this phrase accurately described the evidence as outlined in the opening statement and then
    produced during the trial. Although we do not believe it was appropriate in an opening statement,
    we believe it was proper in closing argument. An opening statement is for the purpose of advising
    the jury of the salient facts expected to be proved in the framework of the party’s theory of the case.
    It is not argument. Describing the defendant’s conduct as a “reign of terror,” given the evidence in
    this case, was not outside the bounds of proper argument. See People v. Poree, 
    456 N.E.2d 950
    ,
    955-56 (Ill. App. Ct. 1983) (concluding that prosecutor’s reference to the defendants as
    “professionals” and their conduct as a “reign of terror” was not improper when supported by the
    evidence).
    -140-
    The defendant contends that the prosecutor stated personal opinions throughout his opening
    statement and closing argument. Initially, we note that the basis for some of the above-listed
    complaints – for example, the prosecutor’s use of “weakest of the weak” and “brutalization” – is that
    the statements were personal opinions. We address the merits of these below. However, we note
    that at trial the defendant complained that the prosecutor repeatedly stated his personal opinion
    because he used “I” throughout his opening statement and closing argument. The defendant argued
    that it was improper for the prosecutor to say, “I am going to argue to you,” “I am going to speak
    to you,” “I called her in to testify,” and “I am going to persuade you.” Again, we note that if the
    “argument is predicated by the words ‘I think’ or ‘I submit,’ it is unlikely to be adjudged as a
    personal opinion.” Coker v. State, 
    911 S.W.2d 357
    , 368 (Tenn. Crim. App. 1995). To the extent
    that the defendant’s complaint regarding the prosecutor stating personal opinions is based upon his
    using “I,” we conclude that the argument was not improper.
    The defendant next complains that the prosecutor improperly stated that the victims were
    “saved by the grace of god.” “It is well-established in Tennessee law that references to biblical
    passages or religious law during the course of a criminal trial are inappropriate.” State v. Cribbs,
    
    967 S.W.2d 773
    , 784 (Tenn. 1998). The state argues, however, that this phrase is not biblical but
    a common phrase devoid of any religious significance. Although the phrase “saved by the grace of
    god” may be one of common usage among all people, regardless of their faith, if any, we
    acknowledge that in this case the phrase could have been used as a contrast to calling the defendant
    evil, as discussed in the next paragraph. In this respect, the prosecutor’s use of “saved by the grace
    of god” borders on impropriety.
    The defendant’s next three contentions involve the prosecutor’s use of the word evil. In his
    opening statement, the prosecutor, in discussing what the state believed D. C.’s testimony would be,
    stated, “This wasn’t a regular date. There was problems early on, and then she is going to tell you,
    I suggest to you, the most sordid details of decadence and pure evil that you have ever seen, that you
    have ever heard. Evil personified, there he sits.” We agree with the defendant that these comments
    were improper. See State v. Cauthern, 
    967 S.W.2d 726
    , 737 (Tenn. 1998) (referring to the defendant
    repeatedly as the “evil one,” used as an epithet to characterize the defendant, was improper); State
    v. Griffis, 
    964 S.W.2d 577
    , 599 (Tenn. Crim. App. 1997) (referring to defendants as “evil,
    despicable human beings” was improper). The defendant also complains about the prosecutor’s
    reciting a quote from Sir Edmond Burke. In his closing argument, the prosecutor attempted to
    explain the delay between D. C. being raped and her filing a formal complaint. He argued,
    [D. C.] testified to you first, and she said to you that, in August of
    1991 – and she has trouble on the date – the first couple of weeks
    in August. Okay. As you know, she didn’t go to the police
    formally until October of 1992 – about a fourteen-month swing,
    as you will remember, on the testimony. Although she did say
    something to, I believe it was Stiles or Pressley – somebody said,
    “Don’t file a report.” Something to the effect that, “Well, you
    -141-
    know, after all, you are a prostitute, and probably nothing is going
    to happen.”
    It reminds me of Sir Edmond Burke, a great Englishman,
    said, “The necessity of evil to prevail is for good people not to
    come forward.” They did.
    In its context and on its face, this argument was proper rhetoric. However, because the prosecutor
    twice characterized the defendant as evil in his opening statement, we question the propriety of using
    this quote, in which the prosecutor indirectly characterized the defendant as evil. Nevertheless, as
    discussed below, we conclude that the prosecutor’s referring to the defendant as evil did not affect
    the verdict to the prejudice of the defendant.
    The defendant also contends that the prosecutor provided the jury with an improper standard
    of reasonable doubt. The prosecutor argued,
    He made [G. T.] then, as she was still on her knees, to lean back
    over, and attempted to penetrate her vaginally unsuccessfully. I
    think you could probably figure out that, if you are on your knees,
    and your hands are bound, and you are trying to lean back, and
    somebody is trying to penetrate you vaginally, that would be
    difficult to do. And let me tell you – you know what she said.
    You remember the words.
    Now, you know, let me just be square with you. You know,
    I think this is a perfect example of reasonable doubt. Is there
    reasonable doubt that he actually penetrated her? You know there
    is a doubt. Did he really penetrate her vaginally?
    Now, that is the pure – pure definition of reasonable doubt.
    Am I satisfied to a moral certainty that he raped her vaginally?
    I think there is reasonable doubt. The Judge is going to instruct
    you on attempted rape. Hit him on that.
    THE COURT: That is incorrect, General.
    DISTRICT ATTORNEY: I am sorry?
    THE COURT: That is incorrect.
    DISTRICT ATTORNEY: Thank you, Your Honor. Not going
    to be charged. Acquit him of it. Say not guilty on that count on
    vaginal rape. Then use that as your standard for reasonable
    -142-
    doubt. Convict him – convict him in regard to [G. T.] on what
    you know to be the truth. Rape by anal intercourse, rape by
    fellatio, the first and second counts.
    In Ledford v. State, 
    568 S.W.2d 113
    , 117 (Tenn. Crim. App. 1978), the prosecutor argued
    that “if the jury ‘knows’ the defendant is guilty, but concludes that the State has failed to prove its
    case, the jury must nevertheless convict the defendant because the State has actually proved its case
    otherwise the jury could not ‘know’ the defendant was guilty.” This court held that the argument
    was a “prejudicially erroneous explanation of the reasonable doubt standard. Id. In this case,
    though, we cannot say that the argument, in which the prosecutor used “moral certainty” to describe
    the reasonable doubt standard and told the jury to convict the defendant on what it knew to be the
    truth, provided the jury with a prejudicially erroneous explanation of reasonable doubt. Moreover,
    the trial court properly instructed the jury regarding the reasonable doubt standard.
    The defendant’s next complaint is that the prosecutor referred to the defendant as the human
    predator. As we already concluded in the analysis relating to the first rape trial, this comment was
    improper.
    The defendant contends that the prosecutor improperly commented that the defendant preyed
    “on the weakest of the weak.” Although the defendant does not explain how this statement was
    improper, at trial he objected that this was a statement of personal opinion. The victims were four
    prostitutes, and the evidence showed that in their profession, they were susceptible to sexual assaults
    and rapes. Also, there was evidence that prostitutes would not always report rapes and that their
    claims of rape were not credible. In this respect, the victims were weak. We cannot say that this was
    outside the bounds of the wide latitude afforded counsel for closing arguments.
    The defendant also contends that the prosecutor’s describing the defendant’s conduct as
    “brutalization” was improper, asserting that this was a statement of the prosecutor’s personal
    opinion. Given the victims’ testimony, we cannot conclude that the prosecutor’s use of the words
    brutalize and brutalization was improper closing argument.
    The defendant next complains that the prosecutor improperly acknowledged that he made
    a mistake relative to the bill of particulars. In the defendant’s closing argument, he questioned the
    dates listed in the state’s bill of particulars, arguing,
    Now, when [the district attorney] gets up in his closing argument
    to you, ladies and gentlemen of the jury – on August 8th of 1996,
    -143-
    [the district attorney] filed a bill of particulars in this case. That
    is eight days before August the 16th, 1996.5
    In that bill of particulars . . . [he] alleged under his signature
    that the date of [D. C.’s] crime was August 23, 1991, until
    September the 6th of 1991. . . .
    What happens, all of a sudden when he gets [D. C.] in on
    August the 16th, says, you know, “Whatever happened to me
    happened to me in the first of August.”
    So, [district attorney], possibly in your closing argument,
    you could tell the ladies and gentlemen of the jury why you told
    the defense, on August the 8th, that it happened after August the
    23rd.
    In his rebuttal closing argument, the prosecutor responded to the defendant’s argument,
    I made a mistake when I told them that we believed the
    crime in regard to [D. C.] was this date. I said that. There is no
    doubt about it. I said it back in early April, and then what we did
    is we called her into this courtroom before this Judge. She
    testified from right there to this Judge when it happened, under
    oath.
    She said it happened the first couple of weeks in August of
    1991. Lo and behold, the indictment that you see that was filed
    on the 9th day of November, 1992, says it happened in August of
    1991. That is what she always said.
    The defendant argues that the prosecutor’s explanation for the variance in the dates in the bill of
    particulars and the trial testimony constituted material not in evidence and the prosecutor’s personal
    opinion. Although we agree that a prosecutor may not express his or her personal opinion or discuss
    matters not in evidence, we believe that the defendant invited the prosecutor’s remarks by
    challenging him to explain the dates in the bill of particulars. After the defendant issued this
    challenge, we do not view the prosecutor’s response to be improper argument.
    5
    The record reveals that the actual dates to which the defendant was referring were April 8th and 16th, 1996.
    -144-
    The defendant’s next two complaints involve the prosecutor’s response to the defendant’s
    argument that the prosecutor had put a “political spin” on the facts of the cases to cover the state’s
    mistakes. The prosecutor argued,
    So you know, this political spin that we are talking about
    that we are here – that there is something peculiar that we are here
    makes no sense. The people of Knox County pay me to
    prosecute. That is my full-time job.
    Nobody wants to do that every day. Nobody wants to talk
    about forced anal intercourse, and forced oral sex, and forced
    vaginal intercourse, and robbery, and kidnapping. Goodness,
    nobody would want to do that every day, would they? But, ladies
    and gentlemen, as I stand here with this front row, I am not
    ashamed of this prosecution, and these ladies have told you the
    truth.
    The defendant does not explain how the prosecutor’s reference to his job and how he was paid –
    something the jury almost certainly knew – was improper. We cannot conclude that this statement
    was improper. Moreover, contrary to the defendant’s assertion, the statement that “these ladies have
    told you the truth” was not a statement of the prosecutor’s personal opinion. We cannot conclude
    that this statement was improper.
    In the defendant’s last two contentions, he complains about the prosecutor arguing that the
    defendant wanted the jury to believe that the prosecutor and the victims “have orchestrated and
    planned this prosecution. We have made it up.” The defendant asserts that these statements were
    inflammatory toward his counsel and that it implied that he had the burden of proof or an obligation
    to produce evidence. The defendant does not explain either of these assertions. Nonetheless, this
    argument, a response to the defendant’s questioning the victims about their meeting with the
    prosecutor before the trial, was not improper.
    In summary, we conclude that the prosecutor should not have referred to the defendant’s
    “reign of terror” and as being evil in his opening statement, as evil (through quoting Sir Edmond
    Burke), and as a “human predator” in his closing argument. Also, the prosecutor questionably
    argued that the victims were “saved by the grace of god.” However, given that these were the only
    comments of concern, we cannot conclude that the prosecutor’s argument was so inflammatory or
    so improper that it more probably than not affected the verdict to the prejudice of the defendant.
    XVII. SENTENCING
    The defendant contends that the trial court erroneously enhanced his sentences based upon
    conduct that occurred while he was insane and failed to sentence him as an especially mitigated
    offender for his convictions in both rape trials. He also argues that Tenn. Code Ann. § 33-6-302
    -145-
    required that the trial court commit him to an institution as a mentally ill person rather than
    sentencing him to incarceration in the Department of Correction. The state contends that the
    defendant is not insane, that section 33-6-302 does not apply to this case, and that the defendant’s
    sentences are appropriate. We agree with the state.
    Appellate review of sentencing is de novo on the record with a presumption that the trial
    court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). As the Sentencing
    Commission Comments to this section note, the burden is now on the defendant to show that the
    sentence is improper. This means that if the trial court followed the statutory sentencing procedure,
    made findings of fact that are adequately supported in the record, and gave due consideration and
    proper weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing
    Act, we may not disturb the sentence even if a different result were preferred. State v. Fletcher, 
    805 S.W.2d 785
    , 789 (Tenn. Crim. App. 1991).
    However, “the presumption of correctness which accompanies the trial court’s action is
    conditioned upon the affirmative showing in the record that the trial court considered the sentencing
    principles and all relevant facts and circumstances.” State v. Ashby, 
    823 S.W.2d 166
    , 169 (Tenn.
    1991). In this respect, for the purpose of meaningful appellate review,
    the trial court must place on the record its reasons for arriving at
    the final sentencing decision, identify the mitigating and
    enhancement factors found, state the specific facts supporting
    each enhancement factor found, and articulate how the mitigating
    and enhancement factors have been evaluated and balanced in
    determining the sentence. T.C.A. § 40-35-210(f) (1990).
    State v. Jones, 
    883 S.W.2d 597
    , 599 (Tenn. 1994).
    Also, in conducting a de novo review, we must consider (1) the evidence, if any, received
    at the trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing and
    arguments as to sentencing alternatives, (4) the nature and characteristics of the criminal conduct,
    (5) any mitigating or statutory enhancement factors, (6) any statement that the defendant made on
    his own behalf and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102,
    -103, -210; see Ashby, 823 S.W.2d at 168; State v. Moss, 
    727 S.W.2d 229
     (Tenn. 1986).
    Because the present offenses were committed in 1991 and 1992, the sentence to be imposed
    by the trial court is presumptively the minimum in the range if neither enhancement nor mitigating
    factors are present.6 Tenn. Code Ann. § 40-35-210(c) (amended 1995). Procedurally, the trial court
    6
    The legislature amen ded the statute to provide that for offenses comm itted on or after July 1, 1995, the
    presum ptive sentence for Class A felonies is the midp oint of the range. Tenn. Cod e Ann . § 40-35-21 0(c).
    -146-
    is to increase the sentence within the range based upon the existence of enhancement factors and then
    reduce the sentence as appropriate for any mitigating factors. Tenn. Code Ann. § 40-35-210(d), (e).
    The weight to be afforded an existing factor is left to the trial court’s discretion so long as it
    complies with the purposes and principles of the 1989 Sentencing Act and its findings are adequately
    supported by the record. Tenn. Code Ann. § 40-35-210, Sentencing Commission Comments; Moss,
    727 S.W.2d at 237; see Ashby, 823 S.W.2d at 169. We will first briefly set forth the facts relating
    to sentencing for each rape trial, and then we will examine the defendant’s contentions.
    A. The First Rape Trial
    In the first rape trial, the jury convicted the defendant of two counts of aggravated rape and
    one count of aggravated robbery. At the sentencing hearing, the state introduced the presentence
    report as an exhibit. The defendant presented the May 14, 1995 statement of the victim and sought
    to introduce the report of Dr. Robert Sadoff. The state objected to the introduction of the report,
    arguing that it was hearsay, that the state had not examined it, and that the defendant had refused to
    submit to a court-ordered mental examination before trial thereby preventing the state from gaining
    any evidence to respond to the report. The defendant denied that he wanted to use Dr. Sadoff’s
    report as notice of a mental disease or defect but instead assured the court that he wanted to use it
    in support of the mitigating factor that he was suffering from a mental condition that significantly
    reduced his culpability for the offense. See Tenn. Code Ann. § 40-35-113(8). The trial court
    agreed that it could consider the report as evidence appropriate to sentencing but expressed concern
    that the report was hearsay and asked the state whether it wanted the opportunity to cross-examine
    Dr. Sadoff. The state did not insist upon Dr. Sadoff testifying at the hearing, and the court concluded
    that it would consider the report.
    In the November 1, 1995 report, Dr. Sadoff diagnosed the defendant as having Dissociative
    Identity Disorder (DID) and stated that his review of the records and examinations of the defendant
    revealed that the defendant’s “alter” personality Kyle was responsible for the rapes and murders.
    He concluded with reasonable medical certainty that because the defendant had no knowledge of
    Kyle and could not control Kyle’s emergence, the defendant lacked substantial capacity to conform
    his conduct to the law when Kyle emerged.
    The trial court noted that the defendant was a Range I, standard offender. It applied the
    following enhancement factors to all three convictions:
    (5) The defendant treated or allowed a victim to be treated with
    exceptional cruelty during the commission of the offense;
    (6), The personal injuries inflicted upon or the amount of damage
    to property sustained by or taken from the victim was particularly
    great; [and]
    ...;
    -147-
    (16) The crime was committed under circumstances under which
    the potential for bodily injury to a victim was great . . . .
    Tenn. Code Ann. § 40-35-114(5), (6), (16). It applied enhancement factor (7), that the “offense
    involved a victim and was committed to gratify the defendant’s desire for pleasure or excitement,”
    to the defendant’s two convictions for aggravated rape. Tenn. Code Ann. § 40-35-114(7). It also
    applied mitigating factor (8), that the “defendant was suffering from a mental or physical condition
    that significantly reduced the defendant’s culpability for the offense.” Tenn. Code Ann. § 40-35-
    113(8). Finding that the enhancement factors substantially outweighed the mitigating factors, the
    court sentenced the defendant to twenty-two years for each aggravated rape conviction and to eleven
    years for the aggravated robbery conviction to be served concurrently in the Department of
    Correction.
    B. Consolidated Rape Trial
    At the consolidated rape trial, the defendant was convicted of the following with regard to
    the three victims:
    D. C.         three counts of aggravated rape, Class A felonies,
    especially aggravated kidnapping, a Class A felony,
    A. D.         two counts of rape, Class B felonies,
    aggravated kidnapping, a Class B felony,
    G. T.         two counts of rape, Class B felonies,
    robbery, a Class C felony.
    The state again presented no witnesses at the sentencing hearing but relied upon the presentence
    report and the evidence presented at trial. The defendant likewise presented no witnesses but asked
    the court to consider, in addition to Dr. Sadoff’s report, an affidavit from Dr. Diana McCoy and the
    pretrial testimony of Dr. Clifford Tennison and Jailor Terry Birnbaum on his mental condition. Also
    on this issue, he asked the court to consider the fact that at the suppression hearing, Detective
    Johnson testified that he addressed the defendant as Kyle while interrogating him.
    The trial court sentenced the defendant as a Range I, standard offender. It applied
    enhancement factor (5), that the defendant treated the victim with exceptional cruelty, to all of the
    rape and kidnapping convictions. See Tenn. Code Ann. § 40-35-114(5). Finding that enhancement
    factor (6), that the victims sustained particularly great personal injuries, includes both physical and
    mental injuries, the court also applied this factor to all the various rape and kidnapping convictions.
    See Tenn. Code Ann. § 40-35-114(6). Looking to the manner in which the defendant carried out the
    sexual acts, it enhanced the various rape convictions with factor (7), that the defendant committed
    the offense involving a victim to gratify his desire for pleasure or excitement. Tenn. Code Ann. §
    40-35-114(7). It applied factor (9), that the defendant possessed or employed a deadly weapon
    -148-
    during the commission of the offenses, to the rape convictions relating to A. D. and the rape and
    robbery convictions relating to G. T. See Tenn. Code Ann. § 40-35-114(9). Finally, it enhanced all
    of the various rape and kidnapping convictions with factor (16), that the circumstances under which
    the crimes were committed carried great potential for bodily injury to the victims. See Tenn. Code
    Ann. § 40-35-114(16). The trial court stated that after reading Dr. Sadoff’s report and listening to
    Dr. Tennison’s testimony, it believed that the defendant suffers from a mental illness, and it applied
    mitigating factor (8), that the defendant was suffering from a mental condition, which significantly
    reduced his culpability for the offense. See Tenn. Code Ann. § 40-35-113(8).
    The trial court found that the enhancement factors substantially outweighed the mitigating
    factor. With respect to the offenses against D. C., it sentenced the defendant to concurrent sentences
    of twenty-two years for each aggravated rape conviction and to twenty years for the especially
    aggravated kidnapping conviction for an effective sentence of twenty-two years. For the offenses
    against A. D., it sentenced the defendant to concurrent sentences of eleven years for each rape
    conviction and ten years for the aggravated kidnapping conviction for an effective sentence of eleven
    years. With regard to the offenses against G. T., the trial court sentenced him to concurrent
    sentences of eleven years for each rape conviction and to three years for the robbery conviction for
    an effective sentence of eleven years. The court ruled that the defendant would serve all sentences
    in the Department of Correction.
    In light of the defendant’s multiple convictions for rape, kidnapping, and robbery of four
    victims, the trial court found that the defendant had an extensive record of criminal activity for
    purposes of consecutive sentencing. See Tenn. Code Ann. § 40-35-115(2). It also determined that
    he was a dangerous offender. See Tenn. Code Ann. § 40-35-115(4). It ordered the defendant to
    serve his sentences with respect to each consolidated rape victim consecutively to each other and to
    the sentence stemming from the convictions in the first rape trial for an effective sentence of sixty-
    six years.
    C. Application of Enhancement Factors in Light of Defendant’s Mental Condition
    The defendant contends that because he presented unrefuted evidence at both sentencing
    hearings that he was insane, the trial court erroneously applied any enhancement factors and ordered
    that his sentences be served consecutively. He argues that it is wrong to punish someone for being
    mentally ill and that “constitutional precepts” prohibit enhancing his sentences or running them
    consecutively based upon conduct that occurred while he was insane. He concludes that, instead,
    the trial court should have sentenced him as an especially mitigated offender. See Tenn. Code Ann.
    § 40-35-109. He also contends that the trial court erroneously ignored and rejected Dr. Sadoff’s
    report in the first rape trial despite the lack of countervailing proof of sanity in the record. The state
    contends that the defendant’s argument is misplaced because neither the jury in either rape trial nor
    the trial court found him to be insane. It argues that the trial court considered the evidence that the
    defendant was mentally ill in applying mitigating factor (8) in both trials.
    -149-
    The defendant contends that the only proof presented at the sentencing hearings reveals that
    he was insane at the time of the conduct upon which the enhancement factors are based. Although
    he now attempts to parlay Dr. Sadoff’s report into unrefuted evidence of his insanity, at the
    sentencing hearing in the first rape trial, the defendant repeatedly confirmed that he was only
    offering this report in support of his mitigating factors. In fact, he specifically stated that he was not
    seeking a ruling on his mental condition: “Now, this case was not tried on an issue of mental
    responsibility, and we do not seek to have Your Honor declare that Thomas Huskey is insane.” The
    trial court made no finding that the defendant was insane but considered the report with respect to
    mitigating factor (8), finding it to be compelling evidence that the defendant suffered from a mental
    disease or defect. In the consolidated rape trial, the defendant again argued that he was mentally ill
    rather than arguing that he was insane. The trial court found:
    I believe that Mr. Huskey suffers from a mental illness. If
    nothing else – of course, I have read Dr. Sadoff’s report. I
    listened to the testimony of Dr. Tennison. I don’t know what it
    is. I don’t understand it, but I believe that Mr. Huskey does
    indeed suffer from some type of mental illness.
    We agree with the state that the basic premise of the defendant’s argument – that he was
    insane at the time of the offenses – fails because neither the trial court nor the jury ever found him
    to be insane. Although he argues that the evidence at the sentencing hearings of his insanity was
    unrefuted, we note that the defendant denied that he was asking the court to consider Dr. Sadoff’s
    report on the issue of insanity at the first rape trial. In the consolidated rape trial, the defendant
    directed the trial court to the pretrial testimony of Dr. Tennison, Detective Johnson, and Jailor
    Birnbaum as well as the report of Dr. Sadoff and the affidavit of Dr. McCoy. We note that Dr.
    Tennison testified that he was unable to determine whether the defendant was insane due to his lack
    of expertise in the field of DID and that Detective Johnson testified that he discovered information
    revealing that the defendant was malingering, although he addressed the defendant as Kyle when
    questioning him. The defendant is not entitled to relief on this issue.
    Although not raised by either party, we question the trial court’s basis for applying
    enhancement factor (7) to the consolidated rape convictions. Although the trial court noted that the
    manner in which the offenses were committed such as the verbal and physical abuse and the repeated
    sexual acts “apparently gave this defendant pleasure,” it essentially found that the defendant
    committed the crimes in order to gratify his desire for pleasure or excitement because no other
    explanation such as financial or social purposes seemed to apply. With regard to factor (7), our
    supreme court has held that
    some acts of rape are not committed for pleasure at all. Some
    crimes of this nature are simply acts of brutality resulting from
    hatred or the desire to seek revenge, control, intimidate, or are the
    product of a misguided desire to just abuse another human being.
    -150-
    The desire for pleasure or excitement should not be inherently
    presumed from the act of rape.
    State v. Adams, 
    864 S.W.2d 31
    , 35 (Tenn. 1993). Likewise, the desire for pleasure or excitement
    should not be attributed based solely upon the lack of another explanation.
    We also determine that the trial court should not have applied enhancement factor (16), that
    the circumstances of the crime reveal great potential for bodily injury to a victim, to the aggravated
    rape convictions relating to the victim in the first trial, the aggravated rape and especially aggravated
    kidnapping convictions relating to D. C., or to the aggravated kidnapping conviction relating to A.
    D. All of these charges alleged that the defendant used or threatened the use of a deadly weapon.
    A great potential for bodily injury necessarily exists whenever a deadly weapon is used. State v.
    Nix, 
    922 S.W.2d 894
    , 903 (Tenn. Crim. App. 1995) (holding that factor (16) should not be applied
    to enhance an especially aggravated robbery conviction because it encompasses an element of the
    offense); see also State v. Imfeld, 
    70 S.W.3d 698
    , 706 (Tenn. 2002) (reasoning that the elements of
    aggravated assault – recklessly causing bodily injury to a victim with a deadly weapon – are
    contained in the statutory language of factor (16), making it inapplicable to enhance the sentence).
    Thus, great risk of bodily injury was inherent in the aggravated rape and the especially aggravated
    and aggravated kidnapping convictions. On the other hand, the trial court properly applied factor
    (16) to the rape convictions relating to A. D. and G. T.
    Although the trial court should not have applied factor (16) to the aggravated rape
    convictions in the first rape trial, the remaining factors – (5), (6), and (7) – amply support the trial
    court’s assignment of substantial weight to the enhancement factors. The twenty-two-year sentence
    imposed for the aggravated rape convictions is justified.
    Factors (7) and (16) were misapplied to the convictions the consolidated rape trial, but we
    conclude that enhancement factor (1), regarding the defendant’s “previous history of criminal
    convictions or criminal behavior” applies based upon the defendant’s convictions for two counts of
    aggravated rape and one count of aggravated robbery in the first rape trial. The trial court did not
    apply this factor out of an abundance of caution because all of the consolidated rape offenses
    occurred before the offenses in the first rape trial except those against D. C. We believe that the trial
    court was too cautious. “Trial judges can consider criminal convictions or any other criminal
    behavior which occurred prior to the sentencing hearing as being ‘a previous history of criminal
    convictions or criminal behavior’ under Tenn. Code. Ann. § 40-35-114(1), regardless of whether the
    convictions or behavior occurred before or after the criminal conduct under consideration.” State
    v. Ed Waters, No. 01-C-01-9106-CR-00158, Hickman County, slip op. at 6-7 (Tenn. Crim. App.
    Feb. 20, 1992); see also State v. Servando Galvan, No. 01C01-9807-CC-00313, Marshall County,
    slip op. at 7 (Tenn. Crim. App. 1999). With the defendant being a dangerous offender, our de novo
    review of the sentences also reveals that they are reasonable in relation to the severity of the offenses
    and necessary to protect the public from other serious crimes by the defendant. State v. Lane, 
    3 S.W.3d 456
    , 461 (Tenn. 1999); State v. Wilkerson, 
    905 S.W.2d 933
    , 938 (Tenn. 1995). We
    conclude that the sentences imposed by the trial court are appropriate, although the reversal of the
    -151-
    convictions regarding the offenses against D. C. changes the effective sentence to forty-four years
    in the Department of Correction.
    D. Manner of Service
    The defendant also contends that the trial court erroneously sentenced him to incarceration
    rather than committing him to an institution for the mentally ill. He argues that Tenn. Code Ann.
    § 33-6-302 (repealed 2000) creates an irrebuttable presumption that he is mentally ill. See Dean v.
    McWherter, 
    70 F.3d 43
    , 45 (6th Cir. 1995). He asserts that he should be confined in a mental facility
    pursuant to this statute. The state contends that the defendant misconstrues the statute.
    Tenn. Code Ann. § 33-6-302 provides:
    Sex offenders constitute a species of mentally ill persons in
    the eyes of the general assembly, and where this tendency is
    pronounced, they should have the same care and custody as
    mentally ill persons generally, and such persons should be given
    continued care and treatment so long as their release would
    constitute a threat to them or to the general public.
    (Repealed 2000). The defendant meets the definition of a sex offender within the repealed chapter
    as a person convicted of rape. Tenn. Crim. Ann. § 33-6-301 (repealed 2000). Section 33-6-303
    states that once convicted of a sex crime, an inmate shall be examined by a psychiatrist or licensed
    psychologist “as soon as practicable after admittance to the penal institution.” If the examination
    reveals that the sex offender can be successfully treated, this fact and the suggested treatment shall
    be certified to the commissioner of correction, who shall provide the treatment. Tenn. Code Ann.
    § 33-6-304 (repealed 2000). Section 33-6-305(a) provides that sex offenders shall be examined by
    a Department of Correction psychiatrist or psychologist, between a year and six months before
    release. (Repealed 2000). If the examination reveals that the sex offender is mentally ill and due
    to his or her illness poses a likelihood of serious harm, the director of the correctional institution
    shall petition that the offender be judicially committed to a hospital or treatment resource. Tenn.
    Code Ann. § 33-6-305(c) (repealed 2000).
    Reading these sections together, section 33-6-302 did not require the trial court to commit
    the present defendant to a mental institution. Instead, this chapter directed the director of the
    correctional institution to provide treatment for sex offenders at the penal institution and to petition
    that they be judicially committed if they have a mental illness posing a likelihood of serious harm
    within a year of their release. In rejecting the contention that section 33-6-302 stigmatizes sex
    offenders in violation of the due process clause, the Sixth Circuit observed that “the statute neither
    mandates any type of involuntary treatment nor requires that sex offenders be transferred to a
    separate correctional facility for special treatment.” Dean, 70 F.3d at 45. The trial court properly
    sentenced the defendant to the Department of Correction.
    -152-
    XVIII. POST-TRIAL MOTIONS
    The defendant contends that the trial court denied his rights to a speedy trial and to due
    process of law by delaying three years in ruling on his motion for new trial in the first rape case and
    two and one-half years in the consolidated rape case. He argues that as a result of the trial court’s
    delay, he was deprived of the ability to appeal these convictions before his trial for the four
    homicides. He asserts that had the rape convictions been reversed on appeal before the homicide
    trial, the state would not have had the rape convictions to use in plea negotiations or as an
    aggravating factor supporting the imposition of the death penalty. The state argues that the trial
    court’s delay in ruling on these motions was caused by the defendant’s numerous amendments to
    his motions for new trial.
    The trial court entered the judgments of conviction in the first rape case on November 17,
    1995, and in the consolidated rape case on July 8, 1996. The following chart presents the relevant
    filings regarding the defendant’s motions for new trial, the dates filed, the case to which the filing
    applies, and the number of grounds for relief contained therein:
    Motion                          Filed on                 Filed in                Grounds
    Motion for New Trial            December 6, 1995         First rape trial        47
    Amendment                       March 29, 1996           First rape trial        4
    Amendment                       April 15, 1996           First rape trial        1
    Motion for New Trial            July 29, 1996            Both                    1
    Motion for New Trial            August 8, 1996           Consolidated Rape       57
    Amendment                       October 18, 1996         Consolidated Rape       1
    Amendment                       October 23, 1996         Consolidated Rape       1
    Amendment                       October 25, 1996         First rape trial        3
    Amendment                       October 25, 1996         Consolidated Rape       3
    Amendment                       October 28, 1996         First rape trial        3
    Amendment                       October 28, 1996         Consolidated Rape       3
    Amendment                       April 30, 1998           Consolidated Rape       1
    Amendment                       July 17, 1998            First rape trial        9
    Amendment                       August 27, 1998          First rape trial        12
    The trial court conducted the final hearing on the motion for new trial in the first rape case on August
    26, 1998. The final hearing on the motion for new trial in the consolidated rape trial was held on
    September 16, 1998. On December 4, 1998, the trial court denied the defendant’s motion for a new
    trial in the first rape trial, ruling that none of the alleged errors merited a new trial. On December
    7, 1998, the defendant moved the trial court pursuant to Rule 33(d), Tenn. R. Crim. P., to enter
    findings of fact and conclusions of law on the issues raised in his motions for new trial in the first
    rape case. On January 8, 1999, the trial court filed an order denying the defendant’s motion for a
    new trial in the consolidated rape case. On February 9, 1999, the trial court entered a second order
    denying the defendant’s motion for new trial in the first rape trial and presenting its specific findings.
    -153-
    Although the defendant contends that the delayed rulings on his motions violate his right to
    a speedy trial, he argues that restrictions on a defendant’s right to appeal must be measured under
    due process requirements like pre-arrest delay. We note that regarding a delay in hearing a motion
    for new trial, a panel of this court has observed that “the court must examine the conduct of the
    government and the defense to determine whether a violation of the defendant’s due process right
    to a prompt appeal has occurred.” State v. Billy Joe Baggett, No. 01C01-9604-CC-00160, Dickson
    County, slip op. at 12 (Tenn. Crim. App. Apr. 3, 1997), app. denied (Tenn. Dec. 22, 1997) (citing
    United States v. Smith, 
    94 F.3d 204
    , 207 (6th Cir. 1996)). Regardless of whether such delay should
    be analyzed as a violation of the speedy trial right or of due process, other than a nonspecific
    notation in passing, the defendant does not assert that he has suffered prejudice in his appeal of his
    rape convictions as a result of the delayed rulings on the motions for new trial. Instead, his claim
    of prejudice – that he lost the opportunity to have the rape convictions reversed before his homicide
    trial – relates to the homicide trial. Furthermore, we note that even this claim of prejudice is now
    moot. The defendant contends that if he had been able to have the rape convictions reversed on
    appeal before the homicide trial, the state would not have had the rape convictions to use in plea
    negotiations or as an aggravating factor supporting the imposition of the death penalty. The
    defendant’s homicide trial resulted in a deadlocked jury, and this court affirmed the trial court’s
    determination that he could be retried for those offenses. State v. Thomas Dee Huskey, 
    66 S.W.3d 905
     (Tenn. Crim. App. 2001). The defendant has appealed his rape convictions before the retrial of
    his homicide charges. The defendant has failed to present any prejudice flowing from the trial
    court’s delayed rulings. Thus, we conclude that the delay did not violate the defendant’s rights.
    With regard to the consolidated rape trial, the defendant also contends that once the trial court
    ruled on the motion for new trial, it failed to provide factual findings as requested pursuant to Rule
    33(d), Tenn. R. Crim. P. He argues that the trial court’s order on the motion for new trial does little
    more than restate his grounds for relief and then state that the grounds are without merit. He
    summarily requests that this court give the trial court’s findings no weight on appeal and review his
    contentions de novo without a presumption of correctness in favor of the trial court’s findings. The
    state contends that the defendant has waived this issue for failing to cite to any authority in support
    of his claim. Despite the state’s argument, the defendant’s reply merely restates his initial contention
    without elaboration or the addition of any supporting authority.
    Rule 33(d), Tenn. R. Crim. P., provides that upon “ruling on the motion for a new trial the
    court, upon motion by either party, shall make and state into the record findings of fact and
    conclusions of law to explain its ruling on any issue not determined by the jury.” The defendant
    filed a motion requesting that the trial court make specific findings pursuant to Rule 33(d) in the first
    rape case, but the record reveals that no such motion was filed in the consolidated rape case. We
    note that the defendant has argued on numerous occasions in his briefs and in the record, that before
    the first rape trial, the trial court ruled orally that a motion filed in one of the cases would be deemed
    filed in all of the defendant’s cases. Although we have not located this ruling in the record, we note
    that the parties agreed that it existed at the hearing on the motion for new trial in the first rape trial.
    Although the trial court’s findings in its order denying the motion for new trial in the consolidated
    rape case are succinct, we disagree with the defendant’s characterization that the trial court
    -154-
    essentially made no findings. We note that at several points, the trial court refers to detailed findings
    that it made following extensive hearings on the various issues. We also note that in some instances,
    the trial court was hampered with regard to the defendant’s failure to specify the errors of which he
    complained. In any event, even considering the Rule 33(d) motion in the first rape trial to apply to
    the consolidated rape case, the defendant has failed to explain how he has been prejudiced by the
    abbreviated findings or why the trial court’s failure to make more extensive findings should cause
    this court to give the trial court’s findings no weight. We do not believe that the defendant is entitled
    to his requested relief on this issue.
    XIX. MOTIONS IN ARREST OF JUDGMENT
    The defendant contends that the trial court failed to rule on his motions in arrest of judgment
    filed in both rape cases pursuant to Rule 34, Tenn. R. Crim. P. He argues that as a result of the trial
    court’s failure to rule, this court should take the allegations in the motions as true, reverse the
    judgments of conviction, and dismiss the charges. The state contends that the defendant did not state
    grounds appropriate for relief under Rule 34 in the motion relating to the first rape case. With regard
    to the Rule 34 motion in the consolidated rape case, the state argues that the defendant’s claim that
    the presentments fail to allege the requisite mental state was rejected by State v. Hill, 
    954 S.W.2d 725
     (Tenn. 1997).
    On December 6, 1995, the defendant filed a motion in arrest of judgment in the first rape
    case, contending that prejudicial and constitutional error made the judgments constitutionally infirm.
    Although he did not specify any instances of error in this motion, he incorporated by reference the
    grounds stated in his motions for mistrial and for a new trial. We note that the trial court did rule
    upon these grounds in ruling upon his motions for a mistrial and his new trial motions. On July 25,
    1996, the defendant amended his motion, alleging that the presentment in the first rape case failed
    to state an offense because it did not contain the requisite mental state. Also on July 25, 1996, the
    defendant filed a motion to arrest the judgments of conviction and to dismiss the presentments in the
    consolidated rape case on the basis that they failed to allege the requisite mental state. On July 30,
    1996, the trial court held a hearing on the defendant’s motions in both cases. Following arguments
    from both parties, the trial court denied the motions. We note that in his notice of appeal in the
    consolidated rape case, the defendant stated that he appealed as of right from the trial court’s denial
    of his motions for new trial, arrest of judgment, and resentencing. The defendant’s contention that
    the trial court failed to rule on these motions is incorrect.
    Rule 34, Tenn. R. Crim. P., provides that the trial “court on motion of a defendant shall arrest
    judgment if the indictment, presentment or information does not charge an offense or if the court was
    without jurisdiction of the offense charged.” With regard to the allegations that the charging
    instruments were insufficient for failing to state the requisite mental state, we affirm the trial court’s
    ruling that the defendant is not entitled to relief. Only the counts alleging aggravated rape and rape
    in the presentments from both cases fail to allege a mental state. Each of the aggravated rape counts
    allege that on a date in Knox County, the defendant “did unlawfully and forcibly and coercively,
    while armed with a weapon . . . sexually penetrate [the victim] by [fellatio or sexual intercourse or
    -155-
    anal intercourse], in violation of T.C.A. 39-13-502 . . . .” The rape counts allege that on a date in
    Knox County, the defendant “did unlawfully and by force and coercion sexually penetrate [the
    victim] by [fellatio or vaginal intercourse or anal intercourse],” violating Tenn. Code. Ann. § 39-13-
    503.
    An indictment satisfies the constitutional guarantees of notice to the accused “if it provides
    sufficient information (1) to enable the accused to know the accusation to which answer is required,
    (2) to furnish the court an adequate basis for entry of a proper judgment, and (3) to protect the
    accused from double jeopardy.” Hill, 954 S.W.2d at 727 (citations omitted). Our supreme court has
    held that “where the constitutional and statutory requirements outlined in Hill are met, an indictment
    that cites the pertinent statute and uses its language will be sufficient to support a conviction.” State
    v. Carter, 
    988 S.W.2d 145
    , 149 (Tenn. 1999) (holding that reference to the pertinent statute cured
    the indictment’s omission of the mental element); State v. Ruff, 
    978 S.W.2d 95
    , 100 (Tenn. 1998)
    (holding that reference to the pertinent statute cured the indictment’s omission of the mental
    element).
    In the present case, the presentments refer to the appropriate statutes and follow their
    language, alleging every element with the exception of the mental state. We believe that they
    sufficiently informed the defendant of the charges that he was facing. Moreover, the factual
    allegations and the references to the pertinent statute provided the trial court with an adequate basis
    for entry of proper judgments. See Carter, 988 S.W.2d at 149. Likewise, the factual allegations and
    the statutory reference protect the defendant from being placed in jeopardy for the same offense a
    second time. We conclude that the presentments provided notice to the accused, and therefore, are
    sufficient to support the defendant’s convictions. Thus, the trial court properly denied the
    defendant’s motion to arrest the judgments.
    The defendant also contends that because the state failed to file responses to his motions for
    arrest of judgment, the motions should have been granted by default. He contends that Rule 47,
    Tenn. R. Crim. P.; Rule II, Knox County Crim. Ct. R.; and the trial court’s September 9, 1994 order,
    which granted the defendant’s request that the state file a written response to all defense motions,
    required the state to file responses. He summarily argues that because the state failed in this regard,
    his motions for arrest of judgment should have been granted by default. This issue would normally
    be waived due to the defendant’s failure to provide authority or argument, showing that the state’s
    failure to comply with Rule 47, the local rules, or the trial court’s order, requires an automatic grant
    of his motions for arrest of judgment. See Tenn. Ct. Crim. App. 10(b).
    Nevertheless, we do not believe that Rule 47, local Rule II, or the trial court’s order
    command such an exceptional result as dismissal of the charges by default. None of these three
    sources provide for the automatic grant of a motion as a possible sanction. Furthermore, Rule 47,
    Tenn. R. Crim. P., is directed to parties filing motions, not to those responding to them. Rule II,
    Knox County Crim. Ct. R., states in pertinent part: “If written responses by the State are demanded,
    a separate notice shall be included with the Motions. The State shall file written responses within
    10 days of the receipt of the notice.” The sole sanction mentioned in Rule II follows a provision
    -156-
    requiring that a defendant filing a discovery motion certify that he or she has irreconcilable questions
    after conferring with the state. The sanction provides that the “[f]ailure to comply with this Rule
    constitutes a waiver of discovery under Rule 16, Tennessee Rules of Criminal Procedure.” Knox
    County Crim. Ct. R. II. Finally, the trial court’s September 9, 1994 order merely grants seven
    defense motions, including the request for written responses by the state. The contention that the
    motions for arrest of judgment should have been granted by default is without merit.
    XX. DISQUALIFICATION OF JUDGE
    The morning of October 18, 1995, before opening statements in the first rape trial, Judge Ray
    L. Jenkins recused himself from the defendant’s cases, stating that he had discovered that one of the
    defendant’s sons was in a class taught by his daughter and that another of the defendant’s sons went
    to the same school as his granddaughter. Judge Richard Baumgartner replaced Judge Jenkins and
    presided over the rape and homicide trials and related proceedings. The defendant filed his first
    motion to disqualify Judge Baumgartner on October 15, 1996, which was after both rape trials and
    sentencing hearings. This motion was filed in the homicide cases. Subsequently, the defendant filed
    fourteen additional motions to disqualify Judge Baumgartner from presiding over the homicide
    cases, alleging numerous actions or inactions requiring his disqualification. All of these motions to
    disqualify were filed before Judge Baumgartner ruled on the defendant’s motions for a new trial in
    both rape cases. Accordingly, the defendant amended his motions for a new trial to incorporate by
    reference his arguments from his motions seeking disqualification, asserting that Judge Baumgartner
    should recuse himself from ruling on the motions for a new trial. On appeal, the defendant maintains
    this position, asserting that Judge Baumgartner erred in failing to recuse himself from ruling on the
    motions for a new trial. In addition, the defendant contends that a disqualified judge presided over
    both rape trials, denying him his right to a fair trial and requiring reversal and dismissal of his
    convictions. The defendant also asks us to reconsider the standards our case law provides for
    disqualification of a judge.
    The defendant alleges numerous instances of judicial misconduct in support of his
    contentions, including that Judge Baumgartner called a defense argument “bullshit,”`` gave the
    prosecutor wide latitude throughout the proceedings, limited his insanity proof, imposed a harsh
    sentence in the first rape trial, had ex parte communications with expert witnesses, met ex parte with
    expert witnesses, allowed the state to hold back expert proof on insanity for rebuttal in the homicide
    trial, released to the public and allowed to be published defense attorneys’ applications for fees and
    expenses, delayed the cases from May 1998 until September 1998 because of his political campaign
    for reelection, made improper comments to the jury in the homicide trial, received ex parte a letter
    from the foreman of the jury in the homicide trial, and disapproved of fees for the defendant’s
    appointed attorneys that should have been granted. The state contends that the defendant has waived
    this issue because (1) all of his motions seeking disqualification occurred after both rape trials, and
    (2) he did not provide any argument explaining why his contentions regarding the judge’s alleged
    misconduct require disqualification. The state further asserts that many of the defendant’s
    contentions are inaccurate and that no reason existed for the trial judge to disqualify himself. The
    -157-
    state, however, does not address the merits of the numerous instances of misconduct alleged by the
    defendant.
    The matter of recusal is left to the sound discretion of the trial court and will not be reversed
    on appeal absent a clear abuse of that discretion. State v. Boggs, 
    932 S.W.2d 467
    , 472 (Tenn. Crim.
    App. 1996). A trial judge should consider a motion to recuse objectively as well as subjectively.
    Thus, a trial judge should grant a recusal whenever the judge “has any doubts about his or her ability
    to preside impartially” or “when a person of ordinary prudence in the judge’s position, knowing all
    of the facts known to the judge, would find a reasonable basis for questioning the judge’s
    impartiality.” Alley v. State, 
    882 S.W.2d 810
    , 820 (Tenn. Crim. App. 1994); see also Tenn. S. Ct.
    R. 10, Canon 3(E). “A court should examine the facts alleged by the movant and consider ‘whether
    assuming the truth of the facts alleged, a reasonable person would conclude that a particular judge
    is biased or prejudiced against a particular defendant.’” Alley, 882 S.W.2d at 821 (quoting United
    States v. Baker, 
    441 F. Supp. 612
    , 616 (M.D. Tenn. 1977)). “Not every bias, partiality, or prejudice
    merits recusal. To disqualify, prejudice must be of a personal character, directed at the litigant,
    ‘must stem from an extrajudicial source and result in an opinion on the merits on some basis other
    than what the judge learned from . . . participation in the case.’” Id. at 821 (quoting State ex rel.
    Wesolich v. Goeke, 
    794 S.W.2d 692
    , 697 (Mo. Ct. App. 1990)). “Adverse rulings by the trial court
    are not usually sufficient grounds to establish bias. Rulings of a trial judge, even if erroneous,
    numerous and continuous, do not, without more, justify disqualification.” Id. at 821. Furthermore,
    the issue to be determined is not “the propriety of the judicial conduct of the trial judge, but whether
    he committed an error which resulted in an unjust disposition of the case.” Boggs, 932 S.W.2d at
    472.
    Initially, we address the defendant’s argument that we should review this issue de novo. He
    relies upon the fact that Judge Baumgartner’s written order denying his motions to disqualify was
    filed only in the homicide case, and in that case, not until after the defendant filed his notices of
    appeal in these cases. We note that the transcript reveals that Judge Baumgartner, on at least four
    occasions, the latest being January 5, 1999, orally denied the defendant’s motions to disqualify.
    Accordingly, we review this issue for an abuse of discretion.
    We next address the defendant’s request that we refine the standards stated in Alley.
    Specifically, the defendant asks us to adopt a standard in which a judge must recuse himself if a
    defendant can articulate a reasonable basis to question the partiality of the judge. In the event we
    do not adopt this standard, the defendant asks that we adopt an articulable basis standard to require
    a disinterested judge to hear a motion to disqualify. Finally, the defendant urges us to hold that when
    there is an allegation of actual misconduct requiring disqualification, the disqualification motion
    must be heard by a different, disinterested judge. First, were we to adopt the defendant’s proposed
    articulable basis standard, which the defendant characterizes as a low threshold, judges would be
    required to recuse themselves simply when a defendant articulates a reasonable basis to question his
    or her partiality. We question who would determine whether the basis articulated is reasonable –
    the judge or a different, disinterested judge. Regardless, this standard would not promote judicial
    economy as some impartial judges would be disqualified simply based upon a defendant’s
    -158-
    “reasonable” assertion. Indeed, in this case, it is questionable whether a new judge, not having been
    privy to the lengthy, complex history of the cases, could have ruled on the motions for a new trial,
    but if he or she could have, it would have taken a significant amount of time to do so. Also, we note
    that judges are often placed in a position of ruling upon their allegedly erroneous rulings or improper
    conduct. We believe that judges can, and do daily, rule upon their alleged misconduct while
    remaining impartial. Moreover, and importantly, Tennessee law is well-settled regarding the matter
    of recusal. Our Supreme Court has held that the matter of recusal addresses itself to the sound
    discretion of the trial court. State v. Smith, 
    993 S.W.2d 6
    , 27 (Tenn. 1999); State v. Hines, 
    919 S.W.2d 573
    , 578 (Tenn. 1995). We are not in a position to change the law in this area.
    We next address the defendant’s contention that the convictions in both rape trials are void
    and should be dismissed because he was tried before a disqualified judge. The defendant does not
    cite authority for this position. In any event, we conclude that the defendant was not tried before a
    disqualified judge. We note that the defendant did not move to disqualify Judge Baumgartner until
    after the completion of both trials at issue in this appeal. It was the conduct after the rape trials,
    which occurred relative to proceedings in the homicide cases, that prompted the defendant to move
    for disqualification, and we believe it is significant that the defendant relies on this later conduct in
    support of his disqualification argument. The defendant’s focus in his disqualification motions and
    arguments was that Judge Baumgartner should recuse himself from presiding over the homicide
    cases. He did not argue then that the convictions from the rape cases should be reversed and
    dismissed, and he does not explain now how his rights at the trials were affected by conduct that
    occurred after the trials. The defendant does not explain, and we fail to see, how this later conduct
    disqualified the judge relative to presiding over these trials. Therefore, relative to the defendant’s
    complaint that he was tried by a disqualified judge, we address the conduct that occurred before or
    during the trials.
    With respect to the first rape trial, the defendant first argues that because Judge Jenkins had
    ex parte communications with Rick Sawyer of the Helen Ross McNabb Mental Health Center
    regarding the defendant’s insanity defense, Judge Baumgartner was disqualified. Initially, we note
    that we fail to see, and the defendant does not explain, how the alleged misconduct of Judge Jenkins
    disqualified Judge Baumgartner from presiding over the trial. Moreover, Judge Jenkins recused
    himself before the trial began, although not on these grounds. When Judge Jenkins disclosed his
    potential conflict, the defendant agreed that a new judge should take over the case. The defendant
    did not object when Judge Baumgartner took over his case, which was after the defendant had
    already complained about Judge Jenkins’s alleged misconduct. See Thompson v. State, 
    958 S.W.2d 156
    , 172 (Tenn. Crim. App. 1997) (discussing waiver of disqualification issue when it is not raised
    at the time the party seeking disqualification knew about the facts supporting disqualification).
    The defendant’s other complaints regarding Judge Baumgartner’s conduct that occurred
    during the first rape trial include the “bullshit” comment (Issue XV), the wide latitude given to the
    prosecutor (Issues XII and XVI), the limitations of his insanity proof (Issue IX), and the harsh
    sentence imposed (Issue XVII). The defendant did not seek to disqualify Judge Baumgartner when
    these events occurred. Moreover, the defendant merely lists these complaints and does not provide
    -159-
    any argument regarding how this conduct disqualified Judge Baumgartner from presiding over the
    first rape trial. The defendant appears to offer these, as well as the complaints discussed below, as
    examples of Judge Baumgartner’s bias against him. We view the conduct, rulings, and events
    differently than the defendant. Specifically, we note that the defendant’s trials and related
    proceedings were intense with heated arguments. Defense counsel were zealous advocates, who
    admitted that their style was very aggressive. At times, counsels’ zealousness crossed the line into
    overzealousness. The trial judge admitted that defense counsels’ tactics made him angry at times,
    specifically noting that defense counsel challenged the court’s rulings and insisted on rearguing
    issues that had been already discussed and ruled upon. In addition, the prosecutor’s behavior and
    comments were inappropriate at times. In this respect, we can understand the trial judge’s
    frustrations, which led him, on occasion, to respond inappropriately. See Tenn. S. Ct. R. 10, Canon
    3(A). However, the judge’s frustrations do not excuse his inappropriate conduct. A judge must
    maintain dignity and professionalism in the face of all onslaughts, and we do not condone behavior
    to the contrary, whatever the circumstances. Nonetheless, although we recognize that some of Judge
    Baumgartner’s behavior was inappropriate, our review of the record does not reveal a reasonable
    basis for questioning his impartiality.
    Likewise, we cannot conclude that the defendant was tried by a disqualified judge in the
    consolidated rape trial. First, the defendant asserts that Judge Baumgartner allowed the district
    attorney to “do as he wished when he wished.” He provides no citations and no argument for this
    assertion, although we believe he refers, at least in part, to complaints raised in Issues XII and XVI
    regarding the prosecutor’s use of leading questions, his exceeding the scope of redirect examination,
    and his making improper comments in his opening statement and closing argument. In any event,
    the record does not support the defendant’s assertion. The defendant objected frequently to the
    prosecutor’s conduct. The trial court ruled on the objections – sometimes for and sometimes against
    the defendant. There is no evidence that the rulings that were adverse to the defendant were the
    product of the judge’s favoritism toward the prosecution. Second, the defendant asserts that Judge
    Baumgartner, due to his bias and prejudice against the defendant, made clearly erroneous rulings
    from January to May 1996. He does not specify which rulings or present any argument relative to
    this assertion. In any event, we do not believe that Judge Baumgartner was biased against the
    defendant, and there is no evidence that his rulings were based upon anything other than the merits.
    The defendant next contends that Judge Baumgartner had ex parte communications with Dr.
    Clifton Tennison of the Helen Ross McNabb Mental Health Center regarding the defendant’s mental
    evaluation. The defendant asserts that the judge “planted the thought” in Dr. Tennison’s head to
    seek further evaluations outside of the Department of Mental Health. Initially, we note that not all
    ex parte communications are per se improper. For example, a trial judge is authorized to
    communicate ex parte for scheduling and administrative purposes that do not deal with substantive
    matters. See Tenn. S. Ct. R. 10, Canon 3(A)(7). In this respect, we do not believe it is improper
    merely to inform a doctor performing an evaluation for the court that additional evaluations would
    be allowed if needed.
    -160-
    To the extent that the defendant implies that the judge did not merely inform Dr. Tennison
    of the possibility of another evaluation but suggested that Dr. Tennison recommend such action, we
    note that the defendant’s complaint appears to be the product of his speculation. The record reveals
    that on May 7, 1996, Judge Baumgartner told the parties that they were going to hear from Dr.
    Tennison the next day. The defendant asked if the proceeding would be ex parte without the district
    attorney present to receive the doctor’s report. The following exchange then occurred:
    The Court:           Not at this time – what I am going to inquire
    of Dr. Tennison tomorrow is where he is in
    his investigative process and what additional
    things he needs to do, if any, in the future,
    and that I anticipate would be something we
    do in open court.
    [Defense Counsel]: Well, we have got to examine him with
    regard to his preliminary impressions. We
    have got to do that.
    The Court:           No. You know, if he says he feels – for
    instance, if he says he feels he needs the
    assistance of a further expert to help him in
    arriving at any conclusions that he might
    want to offer, I am going to direct him to do
    that posthaste. I mean, I am not going to put
    him in a position of saying – I don’t
    anticipate we are going to get some opinion
    out of Dr. Tennison tomorrow morning with
    respect to – now, we may. I do not know.
    [Defense Counsel]: He has examined our client for two hours.
    He has got all the information. He has got a
    whole file on him. Surely, he has some
    impression.
    [District Attorney]: He does not either. He has asked us to give
    stuff, and you have told us not to comply.
    He can’t have the information.
    The Court:           He can’t. There is no possible way he can
    have his opinion formulated by tomorrow
    morning, in my judgment. Now, he may
    surprise me. He may come in here and say
    -161-
    he does, but I do not anticipate that. So that
    is the first thing we are going to do.
    ....
    [Defense Counsel]: Well, how could you possibly make a
    decision as to the need of another
    examination if you don’t ask him: Do you
    have any opinions? He might have some
    opinions. He might like to support them by
    shoring it up with somebody else to help
    him.
    ....
    The Court:            My point is that I am not going to ask him
    to do that – if he says to me, “I have
    formulated an opinion. I don’t feel I need to
    do anything else,” that creates a whole
    different situation than what I am
    anticipating. We are going to have to wait
    and see.
    The following day, Dr. Tennison was questioned by the court and both parties and stated that he did
    not have the necessary expertise to evaluate the defendant and that additional evaluation needed to
    be done by a mental health professional with substantial experience and demonstrable expertise in
    the diagnosis and treatment of dissociative identity disorder. Dr. Tennison said that he had two
    potential candidates to perform the evaluation, and the court asked him to check on their availability.
    We note that according to defense counsel, Dr. Tennison only examined the defendant for two hours.
    Thus, the court and the parties could have anticipated that Dr. Tennison would not have formulated
    an opinion. Moreover, the court and the parties, including the defendant, acknowledged, if not
    anticipated, that another evaluation may be necessary. There is no evidence that the judge suggested
    to Dr. Tennison through ex parte communications that Dr. Tennison recommend a second
    evaluation.
    The defendant next asserts, relative to the consolidated rape trial, that Judge Baumgartner
    had ex parte communications with the district attorney about paying for a second evaluation.
    Specifically, the defendant relies upon a May 9, 1996 memorandum written by Dr. Tennison, which
    states that Dr. Tennison contacted Dr. Phillip Coons, the doctor selected to evaluate the defendant,
    and that he told Dr. Coons that Dr. Coons had been “appointed as court’s witness, not state witness.
    Reimbursement arranged through conference of state district attorney’s, but funds to be turned over
    to Court.” From this memorandum, the defendant speculates,
    Did [the district attorney] tell Judge Baumgartner that the
    district attorneys were paying for Dr. Coons before Judge
    -162-
    Baumgartner ordered Mr. Huskey examined by Dr. Coons on
    May 9, 1996? If [the district attorney] did tell Judge Baumgartner
    this information, this communication was ex parte because this
    was never said on the record and was a shock to the defense when
    it was learned in 1998.
    We note that on May 9, 1996, Judge Baumgartner, Dr. Tennison, the district attorney, and
    defense counsel participated in a telephone conference call, in which Dr. Tennison recommended,
    and the court approved, having Dr. Coons evaluate the defendant. During this conference, the court
    asked Dr. Tennison, per the defendant’s request, whether Dr. Tennison had discussed payment of
    fees with Dr. Coons. Dr. Tennison responded, “Only vaguely. I told him that I hoped that that
    would be worked out during the officers of the Court, that I didn’t know what the details were.”
    After the conference call ended, the trial court clarified that Dr. Coons was the court’s witness, to
    which defense counsel asked who was paying for his services. The court responded,
    The issue of payment, I don’t know. I – I candidly do not know
    the answer to that question. This is a – certainly not your run of
    the mill situation. And hopefully there will be sufficient funds
    available to pay Dr. Coons from some source. Obviously, it will
    be State money, whether it comes from the Administrative Office
    of the Courts, or the District Attorneys’ Conference, or from the
    Legislature directly, or wherever it comes from. I’m going to
    attempt to compensate Dr. Coons fairly for his time and services.
    However, I consider him to be the Court’s witness in this case.
    The defendant did not object and made no further comment regarding payment. Dr. Coons did not
    perform an evaluation of the defendant for the consolidated rape trial. Indeed, Dr. Tennison’s May
    9, 1996 memorandum provides, “Follow-up call from Judge Baumgartner. Defense has instructed
    defendant not to participate in evaluation. Will call Dr. Coons and tell him to cancel plans.”
    The record does not reveal how and when it was arranged for Dr. Coons to be paid by the
    district attorneys’ conference, had he evaluated the defendant. The only evidence that this was the
    case is Dr. Tennison’s memorandum. We note that Judge Baumgartner’s comments after the
    conference call do not indicate that the district attorney arranged for and told the judge that the
    district attorneys’ conference would pay for Dr. Coons’s services before Judge Baumgartner ordered
    Mr. Huskey to be examined by Dr. Coons. Moreover, Judge Baumgartner told the defendant on the
    record that the district attorneys’ conference was one possible source of funding, and the defendant
    did not object or comment. From the record before us, we cannot conclude that Judge Baumgartner
    had improper ex parte communications with the district attorney relative to paying for Dr. Coons’s
    services. Having considered all the defendant’s complaints relative to events that occurred before
    or during the consolidated rape trial, we conclude that the defendant was not tried by a disqualified
    judge.
    -163-
    The remaining issue is whether Judge Baumgartner should have recused himself from ruling
    on the motions for a new trial. With respect to this contention, almost all of the complained-of
    conduct occurred before these rulings. The defendant asserts that Judge Baumgartner’s prejudice
    against him grew over time, blinding Judge Baumgartner and causing him to make unexplainable
    and unjustifiable erroneous rulings. The defendant contends that because Judge Baumgartner was
    disqualified, his rulings on the motions for a new trial are void. First, we note that Judge
    Baumgartner’s rulings on the issues presented in the defendant’s motions for a new trial were
    consistent with rulings made earlier in the cases. Many of these issues were litigated extensively,
    and the trial court ruled upon them before almost all of the complained-of conduct occurred. This
    timing makes it difficult to see how the events relating to the homicide cases caused Judge
    Baumgartner to make unexplainable, erroneous rulings on the motions for a new trial. We also note
    that we have concluded throughout this opinion that most of Judge Baumgartner’s rulings were not
    erroneous. In any event, we recognize that if judicial misconduct occurs before ruling on a motion
    for a new trial, it may be of a nature that a person of ordinary prudence may have a reasonable basis
    for questioning the judge’s impartiality relative to the rulings on these new trial motions.
    Accordingly, we examine below the defendant’s contentions regarding conduct which occurred after
    both rape trials.
    The defendant contends that through ex parte communications, Judge Baumgartner, similar
    to his conduct in the consolidated rape case, “telegraphed the message that if more experienced
    expertise was needed from MTMHI he would order additional evaluations.” The defendant does not
    cite to the record to support this assertion. Our review of the record does not reveal any evidence
    of improper ex parte communications. The record reveals that in May 1996, Dr. Tennison stated that
    he did not have the necessary expertise to evaluate the defendant and recommended that a mental
    health professional with substantial experience and demonstrable expertise in the diagnosis and
    treatment of dissociative identity disorder (DID) evaluate the defendant. Likewise, Middle
    Tennessee Mental Health Institute (MTMHI) stated that it needed additional assistance in evaluating
    the defendant. We again note that we do not believe it is improper merely to inform a doctor
    performing an evaluation of a defendant for the court that additional evaluations would be allowed
    if needed. Regardless, in this case, Dr. Tennison testified that MTMHI telephoned him and asked
    whether they could use an outside consultant. Moreover, there is no evidence that Judge
    Baumgartner influenced MTMHI’s evaluation or decision to ask about using an outside consultant.
    From the record before us, we cannot conclude that the judge had improper ex parte communications
    regarding the potential for a second mental evaluation.
    The defendant next complains that Judge Baumgartner was communicating ex parte with Dr.
    Tennison while his motion to be sent to MTMHI was pending. On June 13, 1996, the defendant
    filed a motion to be sent to MTMHI. The defendant states that this motion was not heard until
    August 8, 1996, because Judge Baumgartner wanted to hear from Dr. Tennison regarding whether
    MTMHI had the ability to evaluate DID. On August 8, Dr. Tennison was questioned by the court
    and the parties regarding his recommendation for evaluating the defendant. Dr. Tennison stated that
    because of complications specific to the defendant’s case, including the change in the defendant’s
    mental status over the past four years, the defendant needed to be evaluated by someone more
    -164-
    experienced than he was in the area of DID. Dr. Tennison recommended that the defendant be
    hospitalized and stated that MTMHI could do the evaluation. He said that he did not know if
    MTMHI would need further consultation, but “either way [was] okay.” The court then stated that
    the defendant would be sent to MTMHI for evaluation and asked Dr. Tennison to remain in contact
    with the doctors there. The court also stated that Dr. Tennison should let it know if the doctors at
    MTMHI needed additional assistance in making their evaluation. The court said, “In other words,
    if they feel they need additional assistance in this evaluation process, before that’s done I want to
    have some input into it, and know exactly what’s needed and why it’s needed.” The court also
    commented that after the evaluation was completed and if the defendant chose to present insanity
    as a defense, the state “would be in a position, if they choose to do it, to consult with their own
    expert, and offer that expert at trial.”
    The defendant relies upon three memoranda either from or to Dr. Tennison as evidence of
    Judge Baumgartner’s improper ex parte communications. These memoranda were introduced as
    exhibits, without objection, at the recusal hearing. The first memorandum is not dated and is from
    Dr. Tennison to Kathy Guin, asking her, per Judge Baumgartner’s request, to contact Dr. Coons
    about possible dates that he would be available to evaluate the defendant for a September trial. The
    defendant contends that this memorandum must have been written shortly after the consolidated rape
    trial was completed but before the second memorandum, dated July 15, 1996. We agree that the
    content of the memorandum suggests this to be the case. The July 15, 1996 memorandum to Dr.
    Tennison from Ms. Guin reflects that she had telephoned Dr. Coons, and Dr. Coons provided a list
    of dates that he would be available to evaluate the defendant. The memorandum also reflects that
    Dr. Coons said he would need a court order before he came to evaluate the defendant and that he
    would need to know who would be paying his expenses and how to contact that person. The third
    memorandum, which includes a handwritten date of August 9, 1996, is from Dr. Tennison and asks
    Ms. Guin to telephone Dr. Coons and relay the following information:
    Judge Baumgartner has ordered the defendant to the Forensics
    Services Program of the Middle TN Mental Health Institute (state
    hospital in Nashville) to complete the forensic evaluation as a
    Court’s witness. He has said off the record that the prosecution
    (District Atty. Gen. Randy Nichols) may still want to call on you
    to examine the defendant for the prosecution. The trial has again
    been postponed, this time until approximately November 4. If
    your consultation is to be sought, I will contact you again some
    time in September (if called as a Court’s witness) or Gen.
    Nichols’ office will call (if for the prosecution).
    With respect to the handwritten date, we note that because the memorandum’s content reflects the
    substance of the August 8, 1996 court proceedings, it appears to have been written on or after that
    date.
    -165-
    The defendant contends that these three memoranda are evidence of Judge Baumgartner’s
    sua sponte and ex parte efforts to get the defendant evaluated by Dr. Coons, the expert the state
    wanted. We disagree with the defendant regarding his inferences from the memoranda. The first
    two memoranda reveal only that Judge Baumgartner asked Dr. Tennison to contact Dr. Coons about
    possible dates that Dr. Coons could evaluate the defendant and that Dr. Tennison complied. While
    the defendant is suspicious of the timing of this contact (because he had not yet been ordered to
    MTMHI and had a motion pending to be sent to MTMHI), the inquiry into Dr. Coons’s availability
    was not improper. Indeed, one can easily infer that the judge was being proactive. In May 1996,
    Dr. Tennison had stated that he believed that an experienced expert would be needed and identified
    Dr. Coons as one potential candidate, whom the court subsequently approved. Also, the August 8,
    1996 proceedings indicate that Judge Baumgartner had not predetermined that Dr. Coons would be
    used instead of or subsequent to MTMHI’s evaluation. Indeed, he specifically stated that MTMHI
    would need to determine whether additional assistance was needed. Also, we note that when
    MTMHI did request the help of an outside consultant, Dr. Kluft, not Dr. Coons, was the doctor
    selected to perform the evaluation. Accordingly, we do not believe the first two memoranda support
    the defendant’s assertion that Judge Baumgartner was attempting sua sponte and ex parte to get the
    defendant evaluated by Dr. Coons.
    Regarding the third memorandum, the defendant asserts that its August 9, 1996 date was
    before Judge Baumgartner entered his order sending the defendant to MTMHI. Thus, the defendant
    claims, the judge must have had improper, ex parte communications with Dr. Tennison. However,
    although the trial court’s written order was not entered until August 12, 1996, the court stated on
    August 8 that it was going to send the defendant to MTMHI. Also, on August 8, the court stated that
    MTMHI would determine if they needed additional assistance in evaluating the defendant. The court
    also acknowledged that after the evaluation was completed and if insanity was going to be raised,
    the state may choose to consult with its own expert. What was not stated on August 8, but included
    in the memorandum, was that the prosecution may want to use Dr. Coons as its expert. However,
    the prosecution had made it clear in the proceedings before and after the consolidated rape trial that
    it had talked to Dr. Coons and that it wanted him to evaluate the defendant. Thus, it was safe to
    assume that if MTMHI did not need additional assistance, then the prosecution may call Dr. Coons.
    We do not believe that it was improper to advise Dr. Coons of this possibility.
    However, what is bothersome on its face is that the memorandum states that Judge
    Baumgartner told Dr. Tennison this “off the record,” which connotes secrecy. We note that these
    were Dr. Tennison’s words and not necessarily Judge Baumgartner’s. If these were Judge
    Baumgartner’s words, they were inappropriate. However, we note that it was not a secret that the
    state would possibly call Dr. Coons if he was not a court’s witness. Thus, despite the “off the
    record” characterization of the matter, the memorandum does not reveal that anything improper was
    stated. As noted, we believe it would have been appropriate for Judge Baumgartner to advise Dr.
    Coons, through Dr. Tennison, of the possibility that the state would call him. From the record before
    us, we cannot conclude that Judge Baumgartner had any improper ex parte communications
    regarding the possibility of the state calling Dr. Coons.
    -166-
    The defendant next complains about the instructions Dr. Craddock, who evaluated the
    defendant at MTMHI, gave to the defendant regarding the confidentiality of the evaluation. The
    transcript of the videotaped evaluation provides that Dr. Craddock told the defendant the following:
    Down here it says that what you tell us is going to be kept
    confidential, and if information is released it would be because
    you have given us written permission. Or that the Judge has
    essentially said I want to see what you have, and he probably –
    we [sic] not doing this for nothing.
    And number three, sometimes we’re subpoenaed to go to
    court or at trial and at that time then we may say what other
    things, our impressions of what you have said. There’s a
    Tennessee Criminal Procedure says that what you say is not to be
    used to try to convict you by the prosecution. Now that’s not to
    say whether that would happen or not, sorta thing but it’s, that
    would be grounds for a mistrial if it was.
    So um, the point is for us to make at this time is that what
    you tell is kept confidential unless you give us permission we
    won’t be talking to anybody else.
    The confidentiality portion of the judge’s August 12, 1996 written order sending the defendant to
    MTMHI stated,
    Upon completion of the evaluation of the Defendant Thomas Dee
    Huskey, Middle Tennessee Mental Health Institute shall provide
    only to the Court a report of the evaluation. Otherwise, Middle
    Tennessee Mental Health Institute shall hold in strict
    confidence all information developed and opinions formed
    concerning the Defendant pending further directions and
    orders from the Court, and specifically shall not release any
    information regarding the Defendant Thomas Dee Huskey to
    the State, the Office of the Knox County District Attorney
    General, the prosecuting attorney, or law enforcement.
    The order went on to say that when the court received the report, it would provide it to the defendant
    for him to decide whether to pursue a defense of insanity. If the defendant elected to present such
    a defense, then the prosecution would also receive the report.
    Dr. Craddock’s instructions were not entirely consistent with the judge’s order. The
    defendant asserts that Dr. Craddock’s mistake “obviously” resulted because “either Judge
    Baumgartner told Dr. Tennison to tell Dr. Craddock something that was not said in court or Judge
    -167-
    Baumgartner’s ex parte communications through Dr. Tennison to Dr. Craddock got garbled.” The
    defendant does not support this assertion with any argument or citation to the record. We do not
    believe that the defendant’s explanations are the only “obvious” ones, or even the most likely.
    Certainly, it is possible that Dr. Craddock, unilaterally, made a mistake. In any event, the record
    does not reveal that Dr. Craddock’s confidentiality explanation was the result of ex parte
    communications.
    The defendant next contends that on September 17, 1996, when Dr. Craddock came to the
    court to report his findings, Dr. Craddock and Dr. Tennison first met with Judge Baumgartner in
    Judge Baumgartner’s chambers. The defendant speculates as to what was discussed in the judge’s
    chambers,
    Did Judge Baumgartner telegraph or outright state to Dr.
    Craddock and Dr. Tennison his predisposition reflected in the
    August 9, 1996 memo? . . . With this judicial “woodshedding” it
    is no wonder that Dr. Craddock and Dr. Tennison came into the
    courtroom with the same recommendation and Mr. Huskey was
    set up for yet another evaluation – this time with a stranger from
    Philadelphia, Dr. Kluft.
    Although the defendant fails to mention the fact, the record reflects that when Drs. Tennison and
    Craddock came into the courtroom, the defendant was allowed to question Dr. Tennison first. The
    defendant asked Dr. Tennison to state why he was here and “what you reported to the Court in
    chambers.” Dr. Tennison responded,
    I am here because we wanted to – we were ordered – by “we,” I
    mean the forensic team at McNabb combined with the forensic
    team at Middle Tennessee – by the Court to consult with one
    another about the case, to stay in touch all during his evaluation
    there at Middle Tennessee, which we have in conference calls,
    and to come back to the Court so that decisions about any use of
    outside consultants would be decided in open court by His Honor
    with everybody discussing the pros and cons.
    So the treatment team – the diagnostic team at Middle
    Tennessee – initiated an inquiry into whether or not they could
    use an outside consultant, which directly fell under the order the
    judge gave me. So I called the Judge, told him that this was
    happening, and he told me to come here today. . . . What I
    reported to him is that, after talking with Dr. Craddock and Dr.
    Farouk at Middle Tennessee, it appears – and you will have to ask
    Dr. Craddock this – but it appears that they have reached the same
    kind of conclusions that I did in my initial evaluation . . . and that
    -168-
    is that there was enough pieces of clinical information that led me
    to believe that there may well have been the presence of a
    dissociative disorder present and active at the time of the alleged
    offenses, but that I could not make a determination with regard to
    insanity defense, because I had no access to the confessing
    personality state, and I did not have the experience to know how
    to proceed from that point, and it appears that is where this
    forensic team in Nashville is at, also, and that is what we
    discussed in chambers.
    Dr. Craddock subsequently testified that he and his team had concluded that “there might be a
    multiple personality, that has merit or is worthy of pursuing. However, we don’t feel as though we
    have the experience to make a diagnosis with confidence.” He then recommended Dr. Coons or Dr.
    Kluft as potential candidates to perform the evaluation.
    We question the appropriateness of having an ex parte meeting with the doctors before going
    into court. When the defendant questioned the doctors about their conversation immediately
    thereafter, Dr. Tennison testified that he informed the judge that the Middle Tennessee team had
    inquired about using an outside consultant. We view this as procedural matter and again note that
    a trial judge is authorized to communicate ex parte for scheduling and administrative purposes that
    do not deal with substantive matters. See Tenn. S. Ct. R. 10, Canon 3(A)(7). However, Dr.
    Tennison also stated that MTMHI inquired about using an outside consultant because, apparently,
    they had found, like he had, evidence of DID but did not have the expertise to evaluate the
    defendant. Although we do not know the extent of the conversation, we question whether this
    subject matter was appropriate to discuss ex parte. Nevertheless, we cannot conclude that this
    conduct warrants disqualification from ruling on the motions for a new trial in the rape cases.
    The defendant next complains about ex parte communications between Judge Baumgartner
    and Dr. Kluft regarding matters that were not addressed in Dr. Kluft’s evaluation or report. We take
    judicial notice of the trial court’s order denying the defendant’s motion to disqualify, in which Judge
    Baumgartner admitted that he met ex parte with Dr. Kluft in October 1996 after Dr. Kluft had
    interviewed the defendant and shortly before Dr. Kluft was scheduled to leave Knoxville. The
    judge’s order provides that the
    substance of our conversation involved Dr. Kluft relating his
    opinions of Mr. Huskey’s mental condition and the procedures he
    used to arrive at those opinions. The Court requested that Dr.
    Kluft set forth his findings in a report and forward it to the Court
    as soon as possible. Dr. Kluft sent his report to the Court two
    days later and the report, which was favorable to the defendant,
    was provided to defense counsel upon receipt. The Court also
    authorized defense counsel to speak directly with Dr. Kluft.
    -169-
    Everything the Court learned during the brief meeting with Dr.
    Kluft was also communicated to the defense counsel.
    Because this order was filed in the homicide case and after the notices of appeal were filed in both
    rape cases, we cannot presume that the court’s account is true. However, the record reveals that the
    defendant received Dr. Kluft’s report and spoke with him. In any event, the judge’s ex parte meeting
    with Dr. Kluft and discussing substantive matters was inappropriate. However, we cannot conclude
    that this meeting with an expert in the homicide trial disqualified the judge relative to ruling on the
    motions for a new trial in the rape cases.
    The defendant next complains about ex parte communications between Judge Baumgartner
    and Dr. Tennison that occurred on October 29, 1996. The defendant asserts that defense counsel met
    with Dr. Tennison on October 28, 1996, and Dr. Tennison, after reviewing Dr. Kluft’s report, said
    that the defendant could not have made a knowing, voluntary, and intelligent waiver. The defendant
    states that the following morning, Dr. Tennison telephoned defense counsel and said that he had
    spoken with Judge Baumgartner, who told him that Dr. Kluft’s report was preliminary and that Dr.
    Kluft would be submitting additional reports relating to the defendant’s statements. The defendant
    asserts that Dr. Tennison then told defense counsel that he needed to see the additional reports before
    he made conclusions regarding the voluntariness of the defendant’s statements. The defendant
    contends that by telling Dr. Tennison what the additional reports were going to address, Judge
    Baumgartner exceeded the scope of proper ex parte communications. The defendant also contends
    that the court’s knowledge of additional reports could only have come from improper ex parte
    communications with Dr. Kluft. Assuming the defendant’s contentions are true, we agree that the
    judge’s behavior would be inappropriate. However, the defendant does not explain, and we fail to
    see, how this behavior regarding communications with expert witnesses in the homicide case
    warrants recusal relative to the motions for a new trial in the rape cases.
    The defendant next complains about numerous rulings, which he asserts are erroneous. He
    contends that Judge Baumgartner improperly refused to conduct a hearing pursuant to McDaniel v.
    CSX Transp., Inc., 
    955 S.W.2d 257
     (Tenn. 1997), on the admissibility of the testimony of Dr.
    Speigel, the state’s expert, and failed to exclude Dr. Speigel’s testimony on the basis of Rules 104,
    403, 702, and 703, Tenn. R. Evid. The defendant also complains that the judge erroneously
    permitted Dr. Speigel to testify about opinions not contained in his report and permitted the state to
    present the testimony of Dr. Speigel in rebuttal. All of these errors, the defendant asserts, were
    because the judge wanted to help the state get its case to the jury. The defendant also complains that
    the judge made improper comments to the jury regarding defense counsel’s closing argument.
    Essentially, the defendant is complaining about rulings in the homicide trial that were adverse to
    him, asserting that these adverse rulings were the result of Judge Baumgartner’s bias against him.
    Initially, we note that the order denying the motion for a new trial in the consolidated rape case was
    filed January 8, 1999, which was before the homicide trial. Thus, these events do not support
    disqualification relative to the consoldiated rape motion for a new trial. Moreover, rulings of a trial
    judge, even if erroneous, numerous, and continuous, do not, without more, justify disqualification.
    -170-
    Alley, 882 S.W.2d at 821. We fail to see how these rulings in the homicide trial could have
    warranted disqualification from ruling on the motions for a new trial in the rape cases.
    We note that the defendant also complains that Judge Baumgartner received and did not
    disclose an ex parte letter from the foreman of the jury in the homicide trial. This occurred after the
    judge’s orders denying the motions for new trial were filed in both rape cases. Accordingly, these
    complaints do not support disqualifying the judge from ruling on the motions for a new trial. Indeed,
    the defendant even argues that the letter from the foreman of the jury in the homicide trial
    disqualified Judge Baumgartner from hearing the defendant’s motions to dismiss and for judgment
    of acquittal in the homicide cases.
    The defendant next complains about Judge Baumgartner’s actions regarding financial records
    of the defense – specifically, defense counsel’s requests for attorneys fees and expenses, including
    money for the payment of the expert witnesses. The defendant complains that Judge Baumgartner
    changed the confidentiality rules regarding these documents during the course of the proceedings.
    Originally, the judge kept the financial documents under seal. On June 2, 1997, The Knoxville
    News-Sentinel filed a motion to intervene in the case and asked the trial court to unseal documents
    relating to fees and expenses of the defense. After a hearing, Judge Baumgartner partially granted
    the News-Sentinel’s motion, ordering many of the documents to remain sealed but ordering the
    summary cover sheets setting forth total amounts paid to defense counsel to be unsealed. This court
    upheld Judge Baumgartner’s order in Knoxville News-Sentinel v. Huskey, 
    982 S.W.2d 359
    , 362
    (Tenn. Crim. App. 1998), stating that it “was unable to discern how revelation of the ‘barebones’
    information ordered unsealed will prejudice Mr. Huskey’s right to a fair trial.” Accordingly, despite
    the defendant’s assertions that there are serious issues regarding the validity of the Knoxville News-
    Sentinel opinion, we conclude, again, that Judge Baumgartner’s actions relative to the unsealing of
    these records were not improper. Moreover, we fail to see, and the defendant does not explain, how
    any of the complained-of conduct relative to the unsealing and subsequent publication of these
    records warranted disqualifying the judge from ruling on the motions for a new trial in the rape
    cases.
    The defendant also complains that in October 1998, Judge Baumgartner improperly released
    defense counsel’s applications for fees and expenses to The Knoxville News-Sentinel. We note,
    however, that the judge issued a temporary restraining order on October 24, 1996, to restrain the
    News-Sentinel from publishing the information. However, on October 25, 1998, the News-Sentinel
    violated the order and published an article revealing some information regarding the defense’s
    expenses. On November 4, 1998, the trial court converted the restraining order into a temporary
    injunction, effective while the defendant’s case was pending in the trial court. Further litigation
    concerning this matter, and publication of any additional information, did not occur until after Judge
    Baumgartner filed his orders denying the motions for a new trial in both rape cases. Therefore, even
    assuming that Judge Baumgartner released the records inappropriately to the News-Sentinel, we
    cannot conclude that this conduct supports disqualifying him from ruling on the motions for a new
    trial.
    -171-
    The defendant also complains that Judge Baumgartner improperly denied defense counsel’s
    requests for fees in an effort to punish and silence counsel. The denial of the requested fees at issue
    occurred in May 1999, several months after the rulings on the motions for a new trial were filed.
    Accordingly, we cannot conclude that the denial of these fees and expenses, even if erroneous,
    disqualified Judge Baumgartner from ruling on the motions for a new trial.
    The defendant next complains that the proceedings in the homicide case were delayed from
    May 1998 to September 1998 because Judge Baumgartner was running for reelection. The
    defendant asserts that Judge Baumgartner avoided conducting hearings and ruling on motions during
    this time because Judge Baumgartner’s opponent was critical of how he was handling the
    defendant’s cases. Although not entirely clear, the defendant appears to be complaining that the
    judge’s political situation was one part of the denial of his right to a speedy trial in the homicide
    case. This issue is not before us on this appeal. Moreover, the defendant does not explain, and we
    fail to see, how this political climate warranted disqualification relative to ruling on the motions for
    a new trial.
    The defendant also complains about when he received the defendant’s MTMHI records. The
    defendant had Rule 17(c), Tenn. R. Crim. P., subpoenas issued in May 1998 for the defendant’s
    records from MTMHI. The defendant asserts that Judge Baumgartner then “embarked on a series
    of ex parte communications with MTMHI that resulted in the records being delayed, being produced,
    then produced to Judge Baumgartner in his office rather than to Mr. Huskey’s attorneys.” The
    defendant merely states that because of the judge’s interference, he did not receive the records until
    July 7, 1998. The defendant does not cite to the record or any authority in support of this contention.
    However, the defendant again appears to be complaining that this delay was one part of the denial
    of his right to a speedy trial in the homicide case, an issue not properly before us in this appeal.
    Moreover, we note that Rule 17(c), Tenn. R. Crim. P., provides that “[t]he court may direct books,
    papers, documents or tangible things be produced before the court at a time prior to the trial or prior
    to the time when they are to be offered into evidence and may upon their production permit them to
    be inspected by the parties and their attorneys.” In any event, the record does not reveal any
    improper ex parte communications regarding the defendant’s MTMHI records.
    In summary, although many of the defendant’s complaints are not supported by the record,
    some of his complaints reveal that some of Judge Baumgartner’s conduct was inappropriate.
    However, we cannot conclude that a person of ordinary prudence in Judge Baumgartner’s position,
    knowing all of the facts known to him, would find a reasonable basis for questioning his impartiality.
    Moreover, the issue to be determined is not “the propriety of the judicial conduct of the trial judge,
    but whether he committed an error which resulted in an unjust disposition of the case.” Boggs, 932
    S.W.2d at 472. The record does not reveal that Judge Baumgartner committed any errors resulting
    in an unjust disposition of the defendant’s motions for a new trial. Accordingly, we conclude that
    Judge Baumgartner was not disqualified from ruling on the defendant’s motions for a new trial.
    XXI. PROSECUTORIAL MISCONDUCT
    -172-
    The defendant contends that the prosecutor’s misconduct (1) denied him due process of law,
    requiring dismissal of the indictments against him and (2) required disqualification of the prosecutor.
    The defendant also contends within this issue that the participation of a special prosecutor in the
    consolidated rape case requires reversal of the convictions in that case.
    Initially, we note that this issue was presented in the defendant’s common issues brief. To
    the extent that his argument relates to the homicide cases, those complaints are not before us in this
    appeal. Also, we note that the state did not respond to this issue, apparently because the issue, unlike
    the other issues in the defendant’s common issues brief, was not separately listed in the briefs for
    the first and the consolidated rape trials. However, most of the defendant’s complaints within this
    issue are repetitive, and thus, addressed by the state elsewhere.
    The defendant relies upon State v. Culbreath, 
    30 S.W.3d 309
     (Tenn. 2000), in support of his
    argument that the presentments against him should be dismissed and/or the prosecutor should have
    been disqualified. In Culbreath, the defendants were charged with several offenses relating to their
    running sexually-oriented businesses. The trial court dismissed the indictments because of the
    involvement of a special prosecutor, finding that the special prosecutor was substantially involved
    in the case and that he had been paid over four hundred thousand dollars over a nineteen-month
    period by a private, special interest group that opposed the types of activities in which the defendants
    were involved. Id. at 312. The trial court found that the conflict of interest required disqualification
    of the special prosecutor as well as the district attorney and his office. Id. Moreover, the trial court
    dismissed the indictments because it concluded that the prosecutor’s misconduct denied the
    defendants their due process rights. Id. Our supreme court stated that although dismissal of an
    indictment is not a usual remedy for prosecutorial misconduct, such remedy may be appropriate
    when the misconduct denies a defendant his right to due process. Id. at 317. The court held that
    dismissal of the indictments was appropriate in the defendants’ case given that the “conflict of
    interest and resulting misconduct permeated the entire prosecution and rendered the proceedings as
    a whole fundamentally unfair.” Id. at 318 n.7.
    Within this issue, the defendant restates many of the complaints he raises in other issues. For
    example, he complains that the prosecution withheld discovery, made improper arguments to the
    jury, illegally obtained statements from the defendant, and intentionally delayed his trials.
    Previously, we concluded that these complaints did not warrant a reversal and a new trial. Here, the
    defendant asserts that the prosecutor’s misconduct violated his due process rights, requiring a
    dismissal of the presentments. As set forth elsewhere in this opinion, we do not believe that the
    prosecutor’s misconduct was pervasive or egregious. We cannot conclude that the defendant’s due
    process rights were violated by the prosecutor’s conduct. Accordingly, we conclude that dismissal
    of the presentments is not warranted due to prosecutorial misconduct.
    Regarding the defendant’s contention that the prosecutor should have been disqualified, we
    note that the defendant never moved for disqualification of the district attorney in either of the rape
    cases, although he did move for disqualification in the homicide cases. The defendant adopts these
    motions by reference, but he does not make any additional argument as to why the district attorney
    -173-
    and his office should have been disqualified. We note that the defendant’s arguments in his motions,
    excluding those relating to the special assistant prosecutor (which are discussed below), relate to
    disqualification based upon events arising from the homicide cases, specifically the disclosure to the
    state of confidential materials relating to the mental evaluations. In any event, the record does not
    reveal that the district attorney and his office had an actual conflict of interest. Moreover, the record
    is devoid of any conduct creating an appearance of impropriety. See Culbreath, 30 S.W.3d at 312-
    13.
    The defendant also moved in the homicide cases for the disqualification of special assistant
    prosecutor Neil Cohen. The defendant submitted an affidavit from Deputy Knox County Court
    Clerk Angie Nesbitt stating that an oath of office was not on file for Mr. Cohen. The defendant
    argued that the special assistant prosecutor performed duties reserved for the publically elected
    district attorney and his lawful assistants, asserting that the special prosecutor was the author of the
    consolidation motion and, in the homicide cases, the author of the motion seeking to introduce the
    rape victims’ testimony. The defendant asserted that the court gave preferential treatment to Mr.
    Cohen because he was a law professor and the author of a book on the law of evidence in Tennessee.
    The defendant now argues that because it was error to allow the special assistant prosecutor to
    participate in the consolidated rape case, those convictions should be reversed, and he should receive
    a new trial. We disagree. Although the defendant incorporates his disqualification motion by
    reference, he does not provide any additional explanation as to why the special assistant prosecutor’s
    participation was error. The defendant did not object to Mr. Cohen’s participation in the
    consolidated rape case until after he was convicted at trial, although before the court’s ruling on his
    motion for a new trial. We do not believe that the defendant can reserve his objection to the special
    assistant prosecutor’s participation until after he is convicted at trial. See T.R.A.P. 36(a).
    ISSUES RELATING ONLY TO THE FIRST RAPE TRIAL
    XXII. STAY OF PROCEEDINGS
    The defendant states that about ten months before the first rape trial, the trial court
    erroneously stayed all proceedings relating to the other cases pending against him and that hearings
    on these motions did not resume until after the first rape trial. He contends that the stay violated his
    rights to due process, a fair trial, and the effective assistance of counsel under the state and federal
    constitutions; Rule 12(e), Tenn. R. Crim. P., requiring the trial court to rule on all pretrial motions
    before trial unless the court defers ruling for a good cause; and rules of judicial conduct requiring
    prompt adjudication of cases. He maintains that before he could develop or declare his defenses in
    the first rape trial, he needed discovery and bills of particulars in his pending rape and murder cases
    as well as rulings on the admissibility of evidence and consolidation relating to the other cases. The
    state disputes that the trial court stayed proceedings in the other cases, arguing that, instead, the trial
    court deferred rulings in the other cases in order to allow the first rape trial to proceed. It also argues
    that the defendant has failed to allege any prejudice in the first rape trial. It contends that any
    infringement of his right to gain access to the court would affect the other pending cases, not the first
    rape case. In reply, the defendant contends that the stay was not necessary in order for the first rape
    -174-
    trial to proceed but, instead, was a device instigated by the state to prevent him from making
    informed decisions regarding his defenses, trial strategy, and guilty pleas in all of his cases.
    Although we do not necessarily condone the trial court’s decision to approach the defendant’s
    motions piecemeal before the first rape trial, our review of the rape cases reveals no prejudice to the
    defendant from this practice. As discussed in Issue V regarding the order of the defendant’s trials,
    it was within the discretion of the prosecution to set the order of the trials. See State v. Nichols, 
    877 S.W.2d 722
    , 735-36 (Tenn. 1994). We also conclude in that issue that consolidation of the rape
    cases was permissive and, therefore, the state was not required to consolidate the first rape trial with
    the others. Indeed, we questioned whether it could have been consolidated in light of the differing
    circumstances surrounding the rapes. In light of our holding on this issue, we fail to understand –
    and the defendant has not explained – how he was harmed by the trial court deciding the motion to
    consolidate the remaining rape cases after the first rape trial.
    Furthermore, we hold in Issue VI regarding discovery and Issue VII regarding exculpatory
    evidence that the defendant has failed to demonstrate that he was prejudiced in the first rape trial by
    evidence he acquired afterward. Additionally, we have held that the defendant was not harmed by
    the trial court’s decision to address his motions to suppress his statements or evidence, other than
    the defendant’s photograph, gained as a result of his arrest or the search of his home after the first
    rape trial. The trial court determined the admissibility of the defendant’s photograph, which was the
    only evidence relating to these motions used in the first rape trial. Evidence of the other rapes and
    the murders was not introduced in the first rape trial. The defendant has failed to explain how he
    was harmed by the lack of a bill of particulars or his inability to know the admissibility of evidence
    in these cases before the first rape trial. The defendant is not entitled to relief on this issue.
    XXIII. DISQUALIFIED JURORS
    The defendant contends that in the first rape case, the trial court failed to excuse for cause
    potential jurors who had inherently prejudicial knowledge relating to his other rape and murder
    charges. He also argues that the trial court erroneously denied him individual voir dire of all
    potential jurors and limited voir dire to questions which would reveal the need for a challenge for
    cause. He claims that due to the erroneous jury selection process, five of the jurors who decided his
    case possessed prejudicial knowledge. The state contends that four of the jurors about whom the
    defendant complains said that they could be impartial despite their knowledge about the defendant’s
    cases and the fifth juror did not know about the defendant’s other charges. It also asserts that the
    jury selection procedures complied with the applicable rules.
    Control of the voir dire is within the sound discretion of the trial court. State v. Howell, 
    868 S.W.2d 238
    , 247 (Tenn. 1993). Our supreme court has ruled that the “ultimate goal of voir dire is
    to insure that jurors are competent, unbiased, and impartial.” State v. Cazes, 
    875 S.W.2d 253
    , 262
    (Tenn. 1994). Rule 24(b), Tenn. R. Crim. P., governs challenges to potential jurors for cause and
    states in pertinent part:
    -175-
    Any party may challenge a prospective juror for cause if:
    (1) there exists any ground for challenge for cause provided by
    law;
    (2) the prospective juror’s exposure to potentially prejudicial
    information makes the person unacceptable as a juror. Both the
    degree of exposure and the prospective juror’s testimony as to his
    or her state of mind shall be considered in determining
    acceptability. A prospective juror who states that he or she will
    be unable to overcome preconceptions shall be subject to
    challenge for cause no matter how slight the exposure. If the
    prospective juror has seen or heard and remembers information
    that will be developed in the course of trial, or that may be
    inadmissible but is not so prejudicial as to create a substantial risk
    that his or her judgment will be affected, the prospective juror’s
    acceptability shall depend on whether the testimony as to
    impartiality is believed. If the prospective juror admits to having
    formed an opinion, he or she shall be subject to challenge for
    cause unless the examination shows unequivocally that the
    prospective juror can be impartial.
    (Emphasis added). The defendant contends that the trial court failed to determine whether the
    publicity regarding the other charges against the defendant was so prejudicial that it created a
    substantial risk of affecting the potential jurors’ judgments even though the jurors stated that they
    could be impartial.
    “Rule 24(b) provides that information possessed by jurors which would be inadmissible in
    the trial may be so prejudicial that a juror must be excused because of the substantial risk of
    prejudice regardless of the jurors’ statements of impartiality.” State v. Shepherd, 
    862 S.W.2d 557
    ,
    569 (Tenn. Crim. App. 1992). In this respect, the rule recognizes that there are limits to what the
    human mind can be expected to set aside. Id. The trial court bears the burden of assessing the level
    of prejudice existing aside from the jurors’ assurances that they can remain impartial:
    The rule recognizes that the risk of a juror being influenced
    by admissible evidence – which will be introduced at the trial to
    influence anyway – is acceptable in our system, if the juror’s
    unequivocal claim of impartiality is believed. Obviously, such
    knowledge does not inherently interfere with the reliability of the
    truth finding process at trial. On the other hand, the juror’s
    knowledge of information which is inadmissible at trial because
    of its prejudicial effect may, depending upon the amount of
    prejudice, improperly influence a juror and undermine the
    -176-
    reliability of the trial result regardless of the juror’s good
    intentions. Because of this risk, the rule implicitly places the
    burden upon the trial court to assess the level of prejudice apart
    from the juror’s statements.
    Id. The record in the present case reflects that the trial court relied upon the jurors’ statements that
    they could be impartial and made no determination regarding the level of prejudice stemming from
    the publicity on the other charges.
    The defendant asks this court to create a bright-line rule that a juror is disqualified if he or
    she has knowledge of the defendant’s other uncharged crimes which are inadmissible at trial.
    Without citation or further explanation, he argues that such a rule would be consistent with case law
    regarding consolidation of cases for trial and admissibility of evidence under Rule 404(b), Tenn. R.
    Evid., and with rules requiring the disqualification of judges who have personal knowledge about
    a case. The plain language of Rule 24 explicitly contemplates that some information “may be
    inadmissible but is not so prejudicial as to create a substantial risk that [the juror’s] judgment will
    be affected.” The rule places this determination within the discretion of the trial court, and we
    decline the invitation to remove an entire category of information – that of other crimes not the
    subject of the present trial – from the trial court’s discretion.
    Alternatively, the defendant argues that jurors in this case with knowledge of serial murders
    or other rapes should have been disqualified under Rule 24(b) because such information is so
    prejudicial that it risks affecting the jurors regardless of their claims of impartiality. He contends
    that the state could not have introduced evidence of these other crimes at trial and that the trial court
    should not have permitted potential jurors who had this knowledge on the jury. He asserts that this
    is especially true because some of the jurors possessed inaccurate knowledge about the other crimes.
    He contends that Jurors Shelton, McKenzie, Melton, Rogers, and McAfee should have been
    disqualified because they knew about his other charges.
    We begin by noting that Jurors Shelton and McKenzie did not state that they knew about the
    defendant’s other charges. Furthermore, the defendant did not challenge Juror McKenzie for cause.
    It is well-settled that the failure to challenge a juror for cause forecloses the argument upon appeal
    that the juror is disqualified. See Sommerville v. State, 
    521 S.W.2d 792
    , 797 (Tenn. 1975).
    Although the defendant made no individual challenge for cause to Juror Shelton, he made a general
    challenge for cause to the panel of which she was a part due to the fact that the jurors had been
    discussing the defendant while awaiting individual voir dire. In any event, Juror Shelton stated that
    she had heard other potential jurors talking about the defendant’s former appearance, whether he
    was the person whom they had seen on television and in the newspaper, and if he lived or worked
    at the zoo. She said that she had not heard anything about Cahaba Lane and had not overheard any
    discussion of the charges against the defendant. The information known to Juror Shelton was not
    so prejudicial that it created a substantial risk of affecting her judgment.
    -177-
    Juror Melton stated that he had seen something about the case on the television news that
    morning. He said that he saw a picture of a man with a long beard and a lot of hair, but he was not
    sure that it was the defendant. He said that he heard that the defendant was accused of killing some
    people and raping someone. He said that he formed no opinion about the defendant but merely
    thought that this might be the case he would hear because he was reporting for jury duty that day.
    He said that he overheard other potential jurors calling the defendant the Zoo Man and saying that
    he had worked at the zoo. He said that he could give one-hundred-percent assurance that he would
    not consider this information in rendering a verdict and that he could render a fair and impartial
    verdict. The trial court denied the defendant’s challenge for cause to Juror Melton.
    Juror Rogers said that he had read about the defendant’s cases in the newspaper about a year
    earlier but that all he really remembered was the defendant’s name. He stated that he had no opinion
    about the defendant’s guilt or innocence and agreed that he could give a fair and impartial verdict.
    Upon additional questioning by the defendant, he stated that he remembered reading that the
    defendant’s nickname was the Zoo Man because he had worked at the zoo. He said that he also
    heard the name Zoo Man mentioned when other potential jurors were speculating about which case
    this was. Although he initially said that he did not remember what crimes the defendant was accused
    of committing, upon additional questioning by the defendant, he agreed that he had read about
    Cahaba Lane in the newspaper and believed that a murder occurred there. He agreed that he
    assumed the defendant was one-hundred-percent innocent. The trial court denied the defendant’s
    challenge for cause to Juror Rogers.
    Juror McAfee stated that he had seen television reports and read newspaper articles about the
    defendant around the time of the crimes. He said that he knew that the defendant allegedly killed
    prostitutes near a road in Knoxville. After the defendant mentioned Cahaba Lane, Mr. McAfee
    remembered that was the name of the road linked with the murders. He recalled that the defendant
    had the nickname of Zoo Man because he had worked at the zoo at one time. He thought that there
    were possibly six homicides associated with the defendant. He agreed that if he heard this
    information again at trial, it could have the effect of refreshing his memory and confirming what he
    knew if the information turned out to be a fact. He denied hearing other potential jurors talking
    about the case and stated that he had formed no opinion of whether the defendant was guilty of any
    charges. He agreed that he could put this information out of his mind and give a fair and impartial
    verdict. The defendant challenged Mr. McAfee for cause, but the trial court denied the challenge.
    Although the defendant did not include Juror Varner in his list of jurors exposed to
    information about the other crimes, we note that she also stated that she had been exposed to pretrial
    publicity and that the defendant challenged her for cause. Ms. Varner stated that she had seen
    publicity relating to the defendant in the newspaper and on television around the time of the offenses.
    Regarding the murder cases, she said she had heard that once the police discovered the last victim,
    they had traced the other victims to the defendant. She said she remembered that the victims could
    have been prostitutes and believed there were three murder victims. She said that she had not heard
    much about the rape but knew that after the discovery of the murders, the police had reviewed other
    charges against the defendant. She said that she had heard the defendant called the Zoo Man in the
    -178-
    media. She denied hearing other potential jurors talking about the case. She stated that she had not
    formed an opinion regarding the defendant’s guilt or innocence as a result of the publicity and agreed
    that she could render a fair and impartial verdict.
    In Shepherd, this court held that the trial court’s failure to assess the prejudice inherent in the
    information about the defendant’s other crime without regard to the jurors’ statements that they
    could be impartial constituted reversible error. 862 S.W.2d at 569. In that case, nine of the twelve
    jurors had seen an “Unsolved Mysteries” program, depicting the defendant’s involvement in the
    murder of two teenage girls. The program included a graphic portrayal of the events surrounding
    the murder that was not the basis of the trial; the narrator’s report that a judge had determined that
    the evidence in that case was sufficient to charge the defendant with first degree murder; and an
    opinion by the investigating deputy, who would appear as a witness in the case on trial, that the
    defendant was a “cold-blooded, psychopathic killer.” We concluded that “the amount of
    inadmissible information possessed by most of the members of the jury regarding the defendant’s
    involvement with and charges for other crimes, particularly the [murder not on trial], was so
    prejudicial that a substantial risk existed that those jurors’ judgments were affected.” Id. at 571.
    The present case is somewhat similar to Shepherd in that Jurors McAfee and Varner and, to
    a lesser extent, Jurors Melton and Rogers were exposed to information indicating that the defendant
    had committed the murders with which he was accused. Jurors McAfee and Varner knew that the
    defendant was accused of killing prostitutes. Jurors Melton and Rogers knew that the defendant was
    accused of murder. Jurors McAfee and Rogers knew that the killing had occurred on Cahaba Lane,
    and all four jurors knew that the defendant was called the Zoo Man. Juror Varner remembered more
    of the details of the accounts that she had read or heard, such as that after the police discovered the
    last of the murder victims, they had traced the defendant to the other bodies. This information shows
    how the defendant was linked to the murders and implicates him in their commission. Although
    Shepherd, in which the jurors watched a dramatization of the events surrounding the other crime,
    presents a more extreme case, here the four jurors knew that the defendant was accused of murder.
    At least Juror Varner and arguably Juror McAfee were exposed to information indicating that the
    defendant had committed the murders. Jurors Varner and Melton also mentioned that they had heard
    that the defendant had been accused of rape. Because the defendant was on trial for rape, the
    information was not necessarily inadmissible. Nothing indicates that these jurors linked the
    information about rape to a victim other than the one in this case.
    Although the information about the defendant’s other charges known to the four jurors was
    prejudicial, we view the defendant to have waived his disqualification argument by failing to remove
    these jurors with his peremptory challenges. Before a defendant can be heard to complain about a
    tainted juror sitting on the jury, he or she must have exhausted “any available peremptory challenge
    to remove the objectionable juror.” Sommerville, 521 S.W.2d at 797. Thus, in order to maintain
    an allegation that the trial court’s refusal to remove a juror for cause rendered his trial unfair, the
    defendant must remove the juror in question with a peremptory challenge, exhaust all peremptory
    challenges, and be forced to accept a disqualified juror once his peremptory challenges are depleted.
    Howell, 868 S.W.2d at 248; State v. Thompson, 
    36 S.W.3d 102
    , 107 (Tenn. Crim. App. 2000); see
    -179-
    State v. Crawford, 
    620 S.W.2d 543
    , 545 (Tenn. Crim. App. 1981) (quoting Sommerville and noting
    that at the time the trial court refused to remove a juror for cause, the defendant still had two
    peremptory challenges remaining).
    In the present case, the defendant used all eight peremptory challenges and requested
    additional challenges because jurors with knowledge of his other charges remained on the panel.
    The trial court denied this request. The defendant contends that he was forced to “burn” his
    peremptory challenges and still have jurors with knowledge of the other charges on the panel
    because the trial court erroneously refused to strike these jurors for cause. The trial court denied the
    defendant’s challenges for cause to jurors with knowledge of his other charges before the defendant
    exercised any of his peremptory challenges.
    Of the seventeen potential jurors initially seated, five – including Jurors Varner, McAfee, and
    Rogers – knew of the defendant’s other charges, but the defendant only removed one of the five
    with his first six challenges. In this respect, we know that the defendant, not the state, exercised the
    challenges because the defendant stated at a bench conference following the first six challenges that
    he had two challenges left. Of the subsequent replacement jurors, only two knew of the defendant’s
    other charges. The parties exercised three more peremptory challenges – presumably two by the
    defendant and one by the state – striking two more jurors with knowledge. Thus, a total of seven
    potential jurors with knowledge entered the panel, and three were removed by peremptory challenge.
    The defendant could have used his eight challenges to strike all seven jurors with knowledge. Thus,
    the defendant’s assertion that he used all of his peremptory challenges to remove jurors with
    prejudicial knowledge of inadmissible evidence and was forced to accept jurors with such knowledge
    on the panel is incorrect. Because the defendant did not use his available peremptory challenges to
    remove those jurors whom he now argues that the trial court should have removed for cause, he
    cannot now challenge their qualifications on appeal. See Howell, 868 S.W.2d at 248; T.R.A.P. 36(a)
    (providing that a defendant who “failed to take whatever action was reasonably available to prevent
    or nullify the harmful effect of an error” is not entitled to relief on appeal). In light of the
    defendant’s failure to take available steps to correct this error, we do not examine his contention that
    the trial court’s failure to excuse jurors with knowledge for cause contradicts its stated purpose –
    to be able to select a Knox County jury without knowledge of the defendant’s other cases – for
    staying the proceedings in the other rape and murder cases.
    The defendant has filed supplemental authority, arguing that he was denied his constitutional
    right to an impartial jury under the Sixth Amendment of the United States Constitution and article
    I, sections 8 and 17 of the Tennessee Constitution. In Quintero v. Bell, 
    256 F.3d 409
     (6th Cir. 2001),
    the court examined the violation of the defendant’s constitutional right to an impartial jury resulting
    from seven jurors having served on a codefendant’s jury as part of an ineffective assistance of
    counsel claim. In the present case, the issue of the effectiveness of counsel’s representation is not
    before us nor is the record sufficient for us to make a determination in that regard.
    The defendant also contests the trial court’s method for screening the venire for potential
    jurors exposed to publicity about his cases. He contends that the trial court should have questioned
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    the jurors about their knowledge of Zoo Man, Cahaba Lane, and the murder and/or rape of
    prostitutes, rather than limiting its questions to the charges in the first rape case. He argues that the
    trial court’s ruling requiring him to mention the other charges if they were to be revealed presented
    him with a Hobson’s choice: Either risk seating jurors who did not know about the charges in the
    first rape case but did know about the other charges or potentially taint the other unexposed jurors
    with questions about the other charges.
    The trial court called the potential jurors in panels of twelve and asked them to raise their
    hands if they had heard anything about the defendant. Then, the court permitted individual voir dire
    of each potential juror who had raised his or her hand indicating knowledge of the defendant. First,
    the court questioned the juror to determine whether he or she could render an impartial verdict
    despite knowledge of the defendant. Then it allowed the parties to question the jurors about the
    extent of their knowledge. The defendant agreed to this procedure before the voir dire began but
    subsequently objected to it, arguing that potential jurors who initially claimed to have only vague
    knowledge about publicity recalled more of the details of the murder cases when asked about the
    Zoo Man or Cahaba Lane during individual voir dire. The court ruled that it would not mention the
    defendant’s other charges and that it would be up to the defendant to mention those if he chose to
    do so. During the individual voir dire of the first panel, one of the prospective jurors revealed that
    some of the jurors had been talking about the Zoo Man and the other charges in the hall while
    waiting to be questioned. The trial court directed a court officer to tell the prospective jurors not to
    talk about this case or the defendant. Following the examination of the first twelve members of the
    venire, the defendant moved to dismiss the jury panel for cause because the prospective jurors had
    discussed the defendant’s appearance, the murder charges, and the name Zoo Man. The court denied
    the motion.
    The court asked the four panels of twelve the following questions respectively:
    [To panel one:] Now, do you know . . . the defendant . . . Do you
    know any of the facts or circumstances surrounding this alleged
    occurrence, anything you have read in the papers or seen on
    television, or anything of that nature.
    [To panel two:] Has any member of this jury panel heard
    anything or read anything concerning this defendant, Mr.
    Huskey?
    [To panel three:] Do you know, have you read anything
    concerning the defendant, Thomas D. Huskey – television,
    anything of that nature? All right. Connected with this case or
    any other case?
    [To panel four:] Do you know or have you heard anything
    concerning the defendant, Thomas Huskey, either on television
    -181-
    or in the – in the papers or on the radio, anything? Have you
    heard anything about this man?
    The trial court phrased its inquiry in such a way as to extract those jurors who had been exposed to
    publicity without revealing the other charges against the defendant and thereby tainting the entire
    panel. Except perhaps for the questions to the first panel, the questions applied to any knowledge
    about the defendant and were not limited to the charges in the first rape case. Although the questions
    to the first panel seem limited to the charges in the first rape case, we note that the parties were able
    to question individually all twelve jurors on this panel. Thus, the defendant was not harmed by this
    limitation. Furthermore, the questions are also broad enough to apply to those potential jurors who
    had overheard other jurors discussing the defendant while waiting for voir dire.
    A defendant is entitled to individual voir dire if a significant possibility exists that a juror
    knows about potentially prejudicial information. State v. Claybook, 
    736 S.W.2d 95
    , 100 (Tenn.
    1987). On the other hand, the trial court retains broad discretion over the way in which voir dire is
    conducted. Howell, 868 S.W.2d at 247. In Howell, our supreme court affirmed the trial court’s
    limitation of individual voir dire to those potential jurors who had been exposed to pretrial publicity
    and who remembered the specific details of the reports. Id. at 247-48. In the present case, the trial
    court permitted individual voir dire of all prospective jurors who indicated that they had heard
    something about the defendant. We conclude that the trial court did not abuse its discretion by
    structuring the jury selection in this way.
    The defendant also contends that the trial court erred in restricting his questions during the
    voir dire to those that would reveal a challenge for cause. He argues that he should have been
    permitted to ask other questions in order to make intelligent use of his peremptory challenges. In
    addition to its own questioning of prospective jurors, the trial court shall allow the parties to question
    them “for the purpose of discovering bases for challenging for cause and enabling an intelligent
    exercise of peremptory challenges.” Tenn. R. Crim. P. 24(a). In the present case, the trial court
    allowed both parties to question the prospective jurors during individual and group voir dire. The
    defendant does not cite to points in the record showing that the trial court restricted his questioning,
    and our reading of the record reveals a single incident in which the trial court restricted the
    defendant’s questions during the individual voir dire. Juror Melton testified that he had seen a
    photograph of a man with long hair and a beard on television that morning and that he had wondered
    if he would be on that case when he reported for jury duty that day. The defendant asked him what
    he thought about when he saw the photograph, and the trial court sustained the state’s objection that
    the question was improper at that time. The defendant then asked Juror Melton if seeing the
    individual on television and hearing that he was charged with murder made an impression upon him.
    Juror Melton said that it did not and that he could put what he had seen and heard out of his mind
    if selected as a juror in this case. He also stated that the photograph that he had seen on television
    did not look like the defendant. Thus, the defendant was able to learn Juror Melton’s reaction to the
    photograph on television and suffered no prejudice as a result of the restriction.
    -182-
    During group voir dire, the parties questioned the jury venire on a variety of topics, many of
    which were not related to disqualification. During the group voir dire and with the jury out, the
    defendant noted that the court had ruled that the defense was not to ask additional questions about
    exposure to publicity aside from asking if the potential jurors had been exposed to any information
    about the defendant since the individual voir dire. We do not view this restriction to limit the
    defendant to questions designed to reveal disqualifying information. It merely reflects the trial
    court’s desire not to cover matters already covered in individual voir dire. The defendant, who was
    allowed to question the jurors exposed to information about him during individual voir dire, suffered
    no prejudice from this ruling.
    XXIV. ADMISSIBILITY OF PHOTOGRAPH AND ARRAY
    The defendant contends that the trial court erred by denying him a hearing on his motions
    to suppress a photograph of him taken at the time of his October 21, 1992 arrest. He argues that the
    photograph was not listed in the state’s Rule 12(d)(2), Tenn. R. Crim. P., disclosure notice and that
    the picture of the defendant was taken as the result of an illegal arrest. He also alleges that the trial
    court should have granted his motion for a mistrial when the prosecutor displayed an array
    containing the photograph to the jury because it bore the word “Homicide” on the back. The state
    contends that a photograph is admissible for purposes of identifying a defendant even if taken
    following an illegal arrest. It also argues that the jury did not see the word “Homicide” on the back
    of the photograph array because the prosecutor carefully covered the word.
    As discussed in Issue III, the admission of the defendant’s photograph was proper because
    law enforcement would have inevitably obtained his photograph without regard to the legality of his
    arrest. The defendant was not prejudiced by the absence of a hearing on his motion to suppress the
    photograph because no legal basis existed for its suppression.
    We turn briefly to the defendant’s other contentions regarding the admissibility of the
    photograph. As discussed in Issue XIII, the state’s Rule 12(d)(2) notice listed photographs and a
    picture lineup form as items that it intended to introduce in the first rape trial. More importantly,
    Rule 12(d)(2) does not contemplate the exclusion of evidence as a sanction for failure to comply.
    The purpose of the rule – to give the defendant a chance to suppress evidence that the state seeks to
    introduce in its case-in-chief – has been fulfilled in this case because the defendant moved pretrial
    to suppress the photograph. Thus, lack of compliance with Rule 12(d)(2) does not form a basis for
    the exclusion of this evidence.
    The defendant also contends that a photograph array containing the photograph taken at the
    time of his arrest should have been excluded because it bore the word “Homicide” on the back. The
    record reveals that during the direct examination of the victim, the state sought to question her
    regarding the photograph array. The defendant requested a bench conference, and the state said that
    it did not intend to pass the photograph array to the jury. The trial court directed the prosecutor not
    to show the back of the photograph array, and the prosecutor stated that he had been careful not to
    let the jury see the back. The defense noted its objection for the record. At the end of the day, the
    -183-
    defendant requested a mistrial because the jury saw the word “Homicide” on the back of the array.
    Defense counsel argued that his associate told him that the jury saw the word when the state prepared
    to show the array to the victim. The state wanted the associate to testify about what she saw. The
    trial court stated that it did not believe that the word on the back of the array created any problem
    but that, out of an abundance of caution, it would question the jurors to determine if they saw the
    back of the array. This questioning never occurred. Initially, we note that the defendant did not
    subsequently ask the trial court to question the jurors about the array. In any event, the record does
    not reflect that the jury saw the word “Homicide” on the array.
    XXV. ADMISSIBILITY OF VICTIM’S STATEMENTS IN HOSPITAL RECORD
    The defendant contends that in the first rape trial, the trial court erroneously admitted
    statements of the victim contained in her hospital record. He argues that the statements were not
    admissible as statements made for diagnosis or treatment, the basis upon which the trial court
    admitted them, or as fresh complaint. He asserts that the trial court erred by failing to hold a hearing
    to assess the reliability and purpose behind the statements. He argues that no medical professional
    testified regarding whether the statements were necessary for diagnosis and treatment. The state
    initially contends that the statements were admitted only for identification and that the record does
    not indicate nor the defendant cite to their introduction into evidence. It also argues that if admitted,
    the statements were pertinent to diagnosis and treatment because they relate the timing and source
    of the victim’s injuries. Finally, the state contends that the trial court was not required to hold a
    hearing because the victim was an adult rather than a child.
    Following opening statements, the parties discussed the admissibility of the hospital record
    from the victim’s emergency room visit about fifteen hours after the offenses. The patient history
    taken by a nurse states as follows:
    States was walking home – getting some breakfast [at] 7:30 a.m.
    and a man stopped to ask directions then pulled her into his car,
    took her to a barn and raped her. [Complains of] injured [right]
    shoulder . . . and soreness all over. Tearful.
    The defendant argued that although he agreed that the record was authentic and kept in the regular
    course of business, the patient history was not admissible substantively. He argued that the patient
    history did not fall within the hearsay exceptions for fresh complaint or statements made for
    diagnosis or treatment. He asserted that it would only serve to bolster the victim’s testimony
    improperly. The defendant acknowledged that he wanted to use the hospital record to show that the
    victim had no bruises at that time and the timing of the rape counselor’s involvement with the
    victim. The court ruled that the victim’s statements were admissible under Rule 803(4), Tenn. R.
    Evid., permitting statements made for medical diagnosis and treatment, and that either party could
    use any portion of the record.
    -184-
    Despite this ruling, the record does not reveal that either party introduced the hospital record
    into evidence. As the state notes, the court reporter recorded the hospital record as Exhibit 2 for
    identification. During a break in the direct examination of the victim, the defendant argued that
    although the state had already introduced the victim’s hospital record, case law prevented the
    admission of the patient history as fresh complaint. The court reminded the defendant that it had
    allowed the record into evidence under the diagnosis and treatment basis and not as fresh complaint.
    The only testimony at this point had been that of the victim, and she had not testified regarding the
    hospital record. While cross-examining the victim, defense counsel showed her the hospital record
    and asked if it stated that she had suffered from any concussions, bruises, or lacerations. The
    defendant called the emergency room doctor who attended the victim on the evening following the
    offenses. Upon cross-examination, the doctor testified that when he saw the victim, the nurse had
    already indicated that the victim had been taken to a barn and raped. The defendant made no
    objection to this testimony. Thus, the defendant was the only party to make use of the hospital
    record, and his use of the record was not related to the victim’s statements. The record does not
    reveal that the hospital record was shown to the jury. Nevertheless, in the event that the jury did see
    the hospital record, we will address whether the patient history was properly admitted. We will also
    consider whether the testimony of the emergency room doctor regarding the statements made by the
    victim to the nurse was properly admitted.
    Rule 803(4), Tenn. R. Evid., provides the following exception to the hearsay rule of
    exclusion:
    Statements made for purposes of medical diagnosis and treatment
    describing medical history; past or present symptoms, pain, or
    sensations; or the inception or general character of the cause or
    external source there of insofar as reasonably pertinent to
    diagnosis or treatment.
    The reason behind the admission of such statements is the belief that the statement is reliable
    because the patient is induced to give a truthful account by his or her desire to receive an accurate
    diagnosis and treatment and because the doctor’s use of the statement for diagnosis and treatment
    indicates its reliability. State v. Stinnett, 
    958 S.W.2d 329
    , 331 (Tenn. 1997).
    Citing State v. McLeod, 
    937 S.W.2d 867
     (Tenn. 1996), the defendant contends that the trial
    court erred in not holding a hearing to determine the admissibility of the statements under Rule
    803(4). He argues that the trial court did not have the benefit of testimony from a medical
    professional stating that the statements were necessary for the victim’s diagnosis and treatment. He
    argues that here, as in McLeod, the statements were improperly influenced by another, in this case
    a Sexual Assault Crisis Center (SACC) worker.
    In McLeod, the supreme court stated that a trial court is to hold a jury-out hearing to decide
    if a child victim’s statement is admissible under Rule 803(4). Id. at 869. The court noted that the
    rationale supporting the admissibility of statements made for diagnosis and treatment “becomes
    -185-
    questionable when the patient is a child because children may not be able to understand the need to
    be truthful in the medical setting.” Id. at 870. Thus, the trial court must examine the circumstances
    surrounding the making of the statement, such as whether the individual interviewing the child asked
    suggestive questions or whether the child’s family was involved in a custody or other dispute. Id.
    at 871. The trial court should exclude statements that were improperly influenced by another. Id.
    This court has previously noted that whether this requirement of a hearing extends to statements
    made by an adult victim is not clear. State v. Spratt, 
    31 S.W.3d 587
    , 600 (Tenn. Crim. App. 2000).
    Certainly the underlying reason for the court’s requiring a jury-out hearing in child victim cases –
    the fact that the child might not be able to appreciate the need to tell the truth in order to get proper
    treatment – does not normally exist in the case of an adult victim.
    In any event, in the present case, the trial court heard the arguments of the parties regarding
    the admissibility of the victim’s patient history out of the presence of the jury. Although the trial
    court did not hear the testimony of the nurse who took the victim’s history or the doctor who
    examined the victim in the emergency room, the state argued that the victim was complaining of a
    sore shoulder and that the history revealed how the victim had been hurt. The defendant did not
    argue that the statements were improperly influenced by the SACC worker, and, in fact, the hospital
    record indicates that the victim met with the rape counselor after giving her patient history, not
    before. Thus, the record reflects no reason for the trial court to have provided the defendant a
    hearing on the admissibility of the victim’s statements.
    The defendant also argues that portions of the victim’s statements were not relevant to
    diagnosis and treatment. In particular, he points to the events leading up to the abduction and the
    fact that the attacker held the victim at gunpoint. He claims that the trial court erroneously
    introduced the entire hospital record. Initially, we note that the patient history makes no reference
    to the victim being held at gunpoint. We agree that the fact that a statement is made while giving
    a medical history does not necessarily make it admissible under Rule 803(4). State v. Williams, 
    920 S.W.2d 247
    , 256 (Tenn. Crim. App. 1995). Statements not germane to diagnosis and treatment
    should be redacted. Id. In Williams, this court held that statements about the events leading to the
    rape as well as the victim’s description of her attacker should have been redacted from the medical
    history as they were not pertinent to diagnosis and treatment. Id. In the present case, if the hospital
    record was introduced into evidence, the portions of the statements revealing that the victim was
    walking home, had gotten breakfast, was stopped by a man who asked for directions, and was taken
    to a barn are not relevant to her diagnosis and treatment. Similarly, the doctor’s testimony that the
    nurse reported that the victim had been taken to a barn was not pertinent to the victim’s diagnosis
    and treatment. These statements do not fall within the Rule 803(4) exception.
    On the other hand, we note that the victim’s statements in the patient history were admissible
    as a prior consistent statement for the purpose of corroborating the victim’s testimony. Generally,
    prior consistent statements are not admissible to bolster a witness’s credibility. State v. Hodge, 
    989 S.W.2d 717
    , 725 (Tenn. Crim. App. 1998) (citing State v. Braggs, 
    604 S.W.2d 883
    , 885 (Tenn.
    Crim. App. 1980)). However, three exceptions to this general rule exist. First, a “prior consistent
    statement may be admissible . . . to rehabilitate a witness when insinuations of recent fabrication
    -186-
    have been made or when deliberate falsehood has been implied.” State v. Benton, 
    759 S.W.2d 427
    ,
    433 (Tenn. Crim. App. 1988). In such a situation, a prior consistent statement is allowed to show
    that the trial testimony is consistent with what the witness said when no influence or motive to lie
    existed. State v. Sutton, 
    155 Tenn. 200
    , 204, 
    291 S.W. 1069
    , 1070 (1927). Second, a prior
    consistent statement may be admissible when a witness is impeached through the introduction of a
    prior inconsistent statement that suggests that the witness’s testimony was either fabricated or based
    upon faulty recollection. State v. Meeks, 
    867 S.W.2d 361
    , 374 (Tenn. Crim. App. 1993). Moreover,
    “the impeaching attack which allows for corroboration may occur during cross-examination of the
    witness . . . . Under such circumstances, the [witness’s] statement made before the inconsistent
    statement but which was consistent with his trial testimony” is admissible to rehabilitate the witness.
    Id. (citations omitted). Third, a prior inconsistent statement may be admissible when a witness’s
    prior statement is used out of context to cross-examine the witness. State v. Boyd, 
    797 S.W.2d 589
    ,
    593-94 (Tenn. 1990).
    In the present case, the defendant attacked the victim’s credibility on cross-examination,
    insinuating that the victim was a prostitute and that the encounter was consensual. The defendant
    questioned the victim about her records from a visit to the Detoxification Rehabilitation Institute four
    days after the offenses. The defendant noted that the records state the victim was “‘jumped’/raped”
    on July 18, 1992. The victim denied using the word “jumped” and stated that she did not know that
    it was a street term meaning that someone who had agreed to have sex for money was not paid. The
    defendant also sought to cast doubt on the victim’s claim of rape by showing that she did not
    immediately tell someone about the attack. Therefore, the victim’s patient history would be
    admissible as a prior consistent statement for the sole purpose of countering the defendant’s attack
    upon the victim’s credibility. The defendant contends that the trial court erred in admitting this
    evidence substantively. Although prior consistent statements are not admissible substantively, the
    fact that the patient history could have been admitted to corroborate the victim’s testimony
    diminishes any concern of harm.
    Furthermore, although the jury was given no limiting instruction regarding the use of the
    patient history, generally, if a defendant does not request a limiting instruction, the issue is waived.
    See Tenn. R. Evid. 105; State v. Smith, 
    24 S.W.3d 274
    , 279 (Tenn. 2000); State v. Robinson, 
    971 S.W.2d 30
    , 43 (Tenn. Crim. App. 1997). We note, though, that in the case of the admission of a
    prior inconsistent statement for impeachment purposes, a limiting instruction should be given, even
    when not requested, if the state’s proof is weak and the prior statement is very damaging. See State
    v. Reece, 
    637 S.W.2d 858
    , 861 (Tenn. 1982). Even if, for argument’s sake, we were to apply that
    principle to the present circumstance, it would avail the defendant nothing. Although the state’s
    proof consisted solely of the victim’s testimony, it was not weak. We do not consider the patient
    history very damaging when viewed relative to the other evidence. Therefore, the defendant was not
    harmed by the trial court’s failure to give a limiting instruction regarding the patient history.
    The emergency room doctor’s statement that the nurse indicated the victim had been taken
    to a barn was erroneously admitted. Nevertheless, we do not believe that this reference to the
    location of the attack more probably than not affected the judgment. See T.R.A.P. 36(b). The jury
    -187-
    heard the victim testify in detail to the events surrounding the rape and witnessed the defendant
    thoroughly cross-examine her about her account. The victim positively identified the defendant as
    her attacker. Finally, we again note that the defendant did not object to this testimony. The doctor’s
    mention of the location of the attack was harmless.
    XXVI. STATE’S CROSS-EXAMINATION OF ADVERSE WITNESS
    The defendant contends that the state improperly cross-examined Officer Chuck Whitson,
    who was called by the defense as an adverse witness. He argues that because the officer was an
    adverse witness, the trial court should have limited the scope of the cross-examination to matters
    addressed on direct examination. He also maintains that the state erroneously presented certain
    testimony, which was relevant to the state’s case-in-chief, during the officer’s cross-examination.
    Finally, he argues that portions of the officer’s testimony on cross-examination were inadmissible
    under the Rules of Evidence. The state contends that Tennessee permits unlimited cross-
    examination and that in the present case, the officer’s testimony on cross-examination was, in fact,
    related to the direct examination. It also argues that the officer’s testimony on cross-examination
    was relevant and admissible.
    The trial court permitted the defendant to call Officer Chuck Whitson of the Knoxville Police
    Department as an adverse witness but denied the defendant’s request that the state’s cross-
    examination be limited to topics covered on direct examination. On direct examination, Officer
    Whitson testified as follows: He took possession of the victim’s rape kit on July 18, 1992, but the
    kit was never sent to a laboratory for analysis. He took photographs as a part of the investigation
    of this case. He saw the victim at the hospital but did not recall that she had any bruises, marks, or
    abrasions, and none were brought to his attention.
    On cross-examination by the state, Officer Whitson testified that he saw the victim at the
    hospital but did not have a lengthy conversation with her at that time. The victim appeared nervous,
    upset, and reluctant to have come to the hospital. He did not examine the victim for bruises or
    abrasions. The following day, the victim took him to the scene of the rapes, and he took photographs
    of the barn stall where she said the rapes occurred. Officer Whitson identified exhibit five, the rope
    previously identified by the victim, as the rope that was tied to the back of the stall and that he
    removed from the stall. He also identified an enlargement of a photograph that he took of the back
    wall of the stall. He explained that he did not send the rape kit for analysis because no one requested
    that he do so. A year later, the rape kit was taken from the refrigerator where it was stored and
    placed in a warehouse. After speaking with someone at the FBI laboratory, he felt there was no need
    to send the rape kit for analysis.
    On redirect examination, Officer Whitson admitted that the victim had identified the
    defendant on October 27, 1992, following the July 18, 1992 attack, but that no one asked him to send
    the rape kit for analysis at that time. When asked to confirm that no scientific evidence corroborated
    the victim’s story, he first stated that he could not answer that question and then stated that the rape
    kit was not sent for analysis. On recross-examination, he stated that another woman was with the
    -188-
    victim at the hospital but that he did not recall if she was from the Sexual Assault Crisis Center
    (SACC). He did not question the victim at that time. Because it was late and the victim was
    distraught, she was asked to come to police headquarters the next day and to bring the clothing that
    she wore on July 18. The next day, the victim gave him the requested clothes.
    In arguing that the scope of the officer’s cross-examination should have been restricted to
    the topics discussed during direct examination, the defendant points to Rule 611(d), Tenn. R. Evid.,
    which provides:
    When a party in a civil action calls an adverse party (or an officer,
    director, or managing agent of a public or private corporation or
    of a partnership, association, or individual proprietorship which
    is an adverse party), interrogation on direct examination may be
    by leading questions. The scope of cross-examination under this
    paragraph shall be limited to the subject matter of direct
    examination, and cross-examination may be by leading questions.
    Although the defendant acknowledges that Rule 611(d) is limited to civil actions, he contends that
    the trial court may restrict cross-examination in this manner in a criminal case to prevent abuse of
    the cross-examination by counsel. See Tenn. R. Evid. 611(a) (providing that the trial “court shall
    exercise appropriate control over the presentation of evidence and conduct of trial when necessary
    to avoid abuse by counsel”). He argues that criminal defendants are entitled to equal or greater
    protections than civil litigants. He summarily asserts that the trial court’s failure to restrict cross-
    examination in this fashion violated his rights to a fair trial, to due process of law, to compulsory
    process for witnesses, and to the equal protection of law. He also contends that his only means of
    presenting certain evidence was through the testimony of Officer Whitson. He concludes that the
    failure to limit cross-examination to matters covered on direct examination violated his right to
    present a meaningful defense under Crane v. Kentucky, 
    476 U.S. 683
    , 690-91, 
    106 S. Ct. 2142
    ,
    2146-47 (1986) (holding that a criminal defendant’s right to present a meaningful defense is
    guaranteed by the due process clause of the Fourteenth Amendment).
    Initially, we note that in Tennessee, cross-examination is not limited to matters discussed
    during direct examination but may encompass any matter relevant to the case. Tenn. R. Evid. 611(b)
    (noting the exception for adverse parties in civil cases); Sands v. Southern Ry. Co., 
    108 Tenn. 1
    , 7,
    
    64 S.W. 478
    , 480 (1901); Long v. State, 
    607 S.W.2d 482
    , 485 (Tenn. Crim. App. 1980). In adopting
    the English rule of unrestricted cross-examination as a part of Tennessee common law, our supreme
    court explained that in addition to ease of application, this rule “tends in a larger measure to elicit
    the truth, the chief end of all judicial investigation.” Sands, 108 Tenn. at 7, 64 S.W. at 480. Under
    the English rule, the party who chooses to call the witness in effect abdicates the ability to object to
    the broad nature of the cross-examination. Id. Rule 611(b) represents the codification of this
    common law rule. Tenn. R. Evid. 611(b), Advisory Commission Comments.
    -189-
    The defendant seeks to have us apply Rule 611(d), a rule fashioned for civil law, in a criminal
    case. Absent a constitutional problem, we lack the authority to go beyond the meaning of Rule
    611(b), which provides for unrestricted cross-examination. Furthermore, we believe that the
    protection provided by Rule 611(d) in a civil case is unnecessary in a criminal case. When a civil
    litigant calls the adverse party to testify, both the direct and cross-examinations are conducted
    through leading questions. Tenn. R. Evid. 611(d). One treatise notes that limiting cross-examination
    to the scope of the direct examination guards against the jury hearing all of the evidence in the form
    of leading questions. Neil P. Cohen et al., Tennessee Law of Evidence, § 6.11[5][b], at 6-118 (4th
    ed. 2000). Without this protection, the jury would be deprived of the opportunity to hear the adverse
    party relate the evidence in his or her own terms. See Cohen, Tennessee Law of Evidence, §
    6.11[9][d], at 6-123. In a criminal case, the state must offer proof of the elements of the offense in
    its case-in-chief or risk the trial court’s granting a judgment of acquittal for the defendant. A
    defendant’s right against self-incrimination under the Fifth Amendment of the United States
    Constitution and article I, section 9 of the Tennessee Constitution prevents the state from calling him
    or her as an adverse party in its case-in-chief. Thus, the possibility that the evidence in the case will
    be developed only through leading questions is greatly diminished. Even if the defendant calls a
    witness who could be deemed an adverse party, any new evidence elicited during the cross-
    examination of that witness would not be the sole evidence proving the crime. For these reasons,
    we conclude that the need for Rule 611(d) does not exist in a criminal trial.
    The defendant argues that he was prevented from presenting a meaningful defense because
    the state was permitted unlimited cross-examination of Officer Whitson. The defendant obviously
    was able to call Officer Whitson as a witness and elicit the information regarding the failure to test
    the rape kit and the absence of bruises to the victim. The state’s ability to present other evidence
    through this witness did not prevent the defendant from calling him. The fact that the defendant was
    faced with a tactical decision in calling this witness and facing the potential presentation of
    unfavorable evidence during cross-examination is no different than the decision faced in calling any
    witness that possesses both helpful and unfavorable information. We conclude that the necessity of
    making that choice did not prevent him from presenting a meaningful defense. Furthermore, the
    defendant has failed to explain and we do not perceive how the unlimited cross-examination
    infringed upon other constitutional rights belonging to the defendant.
    Before we leave this point, we note that we agree for the most part with the state’s assertion
    that Officer Whitson’s testimony on cross-examination did relate to his testimony on direct
    examination. During his cross-examination, Officer Whitson sought to explain why he had not sent
    the rape kit for analysis and why he may have failed to notice any bruises or abrasions on the victim.
    He also expanded upon his direct testimony regarding the fact that he took photographs as a part of
    his investigation of the case, including the photograph of the barn stall where the rapes allegedly
    occurred. We note that the officer’s identification of the rope was not related to his testimony on
    direct examination, but the victim had already identified the rope, which was then introduced into
    evidence during the state’s case-in-chief. We fail to see how the officer’s testimony regarding the
    rope infringed upon the defendant’s ability to present a meaningful defense or his other
    constitutional rights.
    -190-
    Citing State v. West, 
    825 S.W.2d 695
     (Tenn. Crim. App. 1992), the defendant also contends
    that the state had to present the new evidence elicited during the cross-examination of Officer
    Whitson during its case-in-chief rather than holding this evidence back. We believe that the
    defendant paints with too broad a brush by applying West in this way. In West, this court held that
    the state could not call as a rebuttal witness an eyewitness to the shooting, who was known to the
    state before trial but not disclosed to the defendant. Id. at 698. This court determined that the
    witness was not properly a rebuttal witness based upon the content of her testimony, which it
    characterized as proof-in-chief. Id. In the present case, though, the state did not seek to call Officer
    Whitson as a rebuttal witness. Furthermore, Officer Whitson was not an eyewitness to the crimes,
    and the defendant admitted to the trial court that Officer Whitson was listed on the indictment as a
    witness for the state. “It is a well-established principle of law that the State of Tennessee has the
    right to cross-examine defense witnesses.” State v. Adkisson, 
    899 S.W.2d 626
    , 646 (Tenn. Crim.
    App. 1994). The fact that the state chose not to call Officer Whitson during its case-in-chief does
    not mean that it could not cross-examine him when the defendant called him as a witness at trial.
    The state is not prohibited from cross-examining the officer about topics beyond the scope of direct
    examination simply because the state could have called him to testify during its case-in-chief.
    Finally, the defendant contends that portions of Officer Whitson’s testimony on cross-
    examination were inadmissible. Without explaining the reasons, the defendant challenges the
    officer’s testimony regarding the FBI laboratory and the victim’s emotional state almost twenty-four
    hours after the offenses. He also contends that the testimony regarding the SACC was inadmissible.
    Regarding the FBI laboratory, the court sustained the defendant’s hearsay objection to statements
    the FBI made to the officer. Over the defendant’s objection, the court permitted the officer to testify
    that he spoke with the FBI and that as a result of this conversation, he saw no reason to send the rape
    kit for analysis. We conclude that to the extent that the state was seeking to prove Officer Whitson’s
    state of mind in failing to send the rape kit for analysis, the testimony is not hearsay because the
    testimony is not offered to prove the truth of the condition of the rape kit. See Tenn. R. Evid. 801(c)
    (defining hearsay as an out of court statement offered “to prove the truth of the matter asserted”).
    On the other hand, to the extent that the testimony went to prove that the rape kit was ruined, the
    statement is inferential hearsay. See Tenn. R. Evid. 801(c). In any event, the defendant has failed
    to explain how he was harmed by the testimony, and, therefore, we conclude that any error was
    harmless.
    At trial, the defendant objected to the state asking Officer Whitson about the victim’s
    emotional condition when he encountered her at the hospital on July 18. The defendant argued that
    the officer was not qualified to testify about the victim’s emotional condition. The trial court ruled
    that the officer could testify about his observations. Then, the following dialog took place:
    [Prosecutor]: How did she appear to you?
    -191-
    [Witness]: When she – at the hospital she appeared real nervous
    and upset and like she had not really wanted to come to the
    hospital for quite a while.
    [Defense Counsel]: Objection.
    [Prosecutor]: Reluctant?
    [Defense Counsel]: Objection.
    [Court]: Overruled.
    [Witness]: Yes, sir, she was reluctant to come.
    A lay witness may give “opinions or inferences which are (1) rationally based on the
    perception of the witness and (2) helpful to a clear understanding of the witness’s testimony or the
    determination of a fact in issue.” Tenn. R. Evid. 701(a). Because it is the province of the jury to
    draw conclusions from facts in evidence, a “non-expert must ordinarily confine his testimony to a
    narration of facts based on first-hand knowledge and avoid stating mere personal opinions.” State
    v. Middlebrooks, 
    840 S.W.2d 317
    , 330 (Tenn. 1992), superseded by statute on other grounds as
    recognized by, State v. Stout, 
    46 S.W.3d 689
     (Tenn. 2001). An exception to this rule is when the
    lay witness’s opinion is the only clear means of describing a fact. Id. “In situations where a witness
    ‘cannot readily and with equal accuracy and adequacy’ testify without an opinion, the witness may
    state opinions requiring no expertise.” Tenn. R. Evid. 701, Advisory Commission Comment. Thus,
    lay opinions are admissible only when:
    “facts perceived by the senses are numerous, and it is difficult to
    describe them adequately to the jury, and the conclusion or
    inference to be drawn from such facts is simple and within the
    range of common experience, and the witness can relate what he
    has seen more accurately and more easily by stating his
    conclusion than by attempting to detail the [evidentiary] facts.”
    Middlebrooks, 840 S.W.2d at 331 (quoting Reed v. Allen, 
    522 S.W.2d 339
    , 343 (Tenn. Ct. App.
    1974)).
    In the present case, we view Officer Whitson’s description of the victim as nervous and upset
    to be the type of lay opinion testimony permitted by Rule 701, Tenn. R. Evid., because it was
    rationally based upon his perception of the witness. Furthermore, this testimony was relevant to the
    victim’s credibility, a central issue in the case. On the other hand, the record does not provide a
    foundation for the officer’s statements that the victim was reluctant or “like she had not really
    wanted to come to the hospital for quite a while.” The officer’s testimony that the victim appeared
    -192-
    nervous and upset does not provide a rational basis for his conclusion that she was reluctant.
    Additionally, we do not believe that the opinion regarding the victim’s reluctance falls within the
    circumstances described in Middlebrooks such that it was more accurately and easily stated in the
    form of an opinion than an account of the evidentiary facts. Nevertheless, in light of the officer’s
    testimony that the victim was nervous and upset, we do not believe that the defendant was harmed
    by the officer’s testimony that she appeared reluctant.
    The defendant also complains about Officer Whitson’s mention of the SACC. On recross-
    examination, the prosecutor asked the officer if the woman from the SACC was with the victim
    when he arrived at the hospital. The officer responded that a woman was with the victim but that
    he did not recall who she was. The defendant objected that the testimony was beyond the scope of
    the direct examination and violated State v. West. The trial court overruled the objection, noting that
    it had already ruled on the matter. The officer proceeded to testify that he did not question the victim
    at that time because it was late and she was distraught. On appeal, the defendant has not explained
    why the officer’s testimony on this matter was inadmissible. We have already ruled that the officer
    could properly testify on cross-examination beyond the scope of the direct examination and that
    West does not prevent the state from cross-examining him. We conclude that the officer’s testimony
    regarding the woman with the victim was admissible.
    XXVII. FAILURE TO RULE AS THIRTEENTH JUROR
    The defendant contends that in the first rape case, the trial court failed to rule on the
    sufficiency of the evidence as the thirteenth juror pursuant to Rule 33(f), Tenn. R. Crim. P. The state
    contends that the trial court explicitly found the evidence to be sufficient in its ruling on the
    defendant’s motion for a new trial. We agree with the state.
    “The trial court may grant a new trial following a verdict of guilty if it disagrees with the jury
    about the weight of the evidence.” Tenn. R. Crim. P. 33(f). When the trial court overrules a motion
    for a new trial without comment, we presume that it has approved the verdict. State v. Moats, 
    906 S.W.2d 431
    , 434-35 (Tenn. 1995). In its December 4, 1998 order denying the defendant’s motions
    for a new trial, the trial court ruled that none of the alleged errors merited a new trial. Thus, we may
    presume that it acted as the thirteenth juror. Furthermore, we note that the trial court expressly found
    the evidence to be sufficient in a subsequent order. On December 7, 1998, the defendant moved the
    trial court pursuant to Rule 33(d), Tenn. R. Crim. P., to enter findings of fact and conclusions of law
    on the issues raised in his motions for new trial. On February 2, 1999, the trial court entered a
    second order denying the defendant’s motions for new trial. This order provides:
    The defendant also claims that the trial court . . . has waited too
    late in its actions as thirteenth juror. The defendant also alleges
    that there is insufficient evidence to support these convictions.
    The trial court acted within its discretion in all these matters.
    None of the allegations of error warrant the granting of a new trial
    under existing law on the facts of this case.
    -193-
    The order concludes with the following: “Pursuant to Tennessee Rule of Criminal Procedure 33, the
    court finds that the weight of the evidence supports the jury’s verdicts of guilt on each and every
    count.” Thus, the trial court explicitly fulfilled its role as the thirteenth juror and found that the
    evidence weighed in favor of the jury’s verdict.
    Despite the state’s responding with the above quote from the February 2, 1998 order, the
    defendant insists in his reply brief that the state has failed to answer his contention that the trial court
    did not rule on the sufficiency of the evidence under Rule 33(f). Citing to State v. Gordon Scott
    Katz, No. E1999-01220-CCA-R3-CD, Davidson County (Tenn. Crim. App. Oct. 2, 2000), the
    defendant argues that this court must order a new trial because the trial court failed to rule. In Katz,
    the trial court made comments at the hearing on the motion for a new trial indicating that it was
    dissatisfied with the weight of the evidence. It also suggested that it felt that the appellate court,
    which had remanded the case to the trial court, was directing it to reinstate the jury’s verdict.
    Relying upon Moats, 906 S.W.2d at 434-36, this court concluded that
    if the record reflects that the trial court was dissatisfied with or
    disagreed with the jury’s verdict or the weight of the evidence,
    made statements indicating that the trial court misunderstood its
    responsibility or authority to act as thirteenth juror, or absolved
    itself of the responsibility of acting as thirteenth juror, the
    appropriate remedy is for the appellate court to grant a new trial.
    Id., slip op. at 3. It held that the trial court had avoided performing its role as the thirteenth juror or
    failed to understand its authority to act upon the remand of the case. In the present case, the trial
    court has explicitly ruled as the thirteenth juror. The defendant has not pointed to anything in the
    record which reveals that the trial court was dissatisfied with the jury’s verdict. We fail to see the
    connection between this case and the circumstances in Katz. The defendant’s contention that the
    trial court failed to rule as the thirteenth juror is without merit.
    Finally, the defendant contends that because the state failed to file written responses to his
    his motions for a new trial and his motion for specific findings, his motions for a new trial should
    have been granted by default. He argues that Rule 47, Tenn. R. Crim. P.; Rule II, Knox County
    Crim. Ct. R.; and the trial court’s September 9, 1994 order, which granted the defendant’s request
    that the state file a written response to all defense motions, required the state to file an answer. We
    addressed this argument in Issue XIX and found it to be without merit.
    ISSUES RELATING ONLY TO CONSOLIDATED RAPE
    XXVIII. BIFURCATION OF FACTUAL AND INSANITY DEFENSES
    The defendant contends that the trial court erred in denying his motion to sever and/or
    bifurcate his factual defense from his insanity defense. He argues that he could not adequately
    present all of his defenses in one trial because of the inconsistencies in his factual defenses and his
    -194-
    insanity defense. Specifically, the defendant argues that it would have been difficult to defend
    against the charges on the theories of alibi, consent, and that no crime was committed and, at the
    same time, to argue that the defendant was not guilty by reason of insanity. The state asserts that
    the defendant was not entitled to a bifurcated trial.
    In the defendant’s motion for bifurcation, he admitted that he “was not aware of case law in
    this state addressing this issue.” However, he argued, as he does now on appeal, that Rule 57, Tenn.
    R. Crim. P., provided the court an avenue to bifurcate the trial. Rule 57 states, “If no procedure is
    specifically prescribed by rule, trial courts may proceed in any lawful manner not inconsistent with
    these rules or with any applicable statute.” The defendant asserts that because the trial was not
    bifurcated, he was denied a full and fair opportunity to present his defense.
    Because the defendant did not present an insanity defense at trial, this issue is moot. In any
    event, the we fail to see how the trial court abused its discretion in denying the defendant’s motion.
    Although many jurisdictions have provided for, either by statute or case law, bifurcation of factual
    and insanity defenses when certain circumstances exist, see generally State v. Green, 
    355 So. 2d 789
    (Fla. 1978); Debra T. Landis, Annotation, Necessity or Propriety of Bifurcated Criminal Trial on
    Issue of Insanity Defense 
    1 A.L.R. 4th 888
     (1980), Tennessee law does not provide for such a
    procedure. Moreover, this issue was addressed in Stone v. State, 
    521 S.W.2d 597
     (Tenn. Crim. App.
    1974), in which the defendants were tried and convicted of rape. One defendant asserted that the trial
    court erred in refusing to try the issue of insanity in a separate proceeding from the one determining
    guilt. We held that the defendant “was not entitled to a bifurcated trial,” stating that the “defense
    of insanity at the time of the crime is at issue under a plea of not guilty.” Id. at 600. Also, a
    defendant does not have to admit guilt before raising a plea of not guilty, and although presenting
    defenses such as alibi and insanity “is often perceived as a presentation of inconsistent defenses, one
    may nonetheless pursue both the insanity defense and a general not-guilty plea.” Ginger Turnmire
    v. State, No. 329, Greene County, slip op. at 5 (Tenn. Crim. App. June 18, 1991), app. denied (Tenn.
    Sept. 30, 1991). Furthermore, there is no constitutional right to a bifurcated trial. See Spencer v.
    Texas, 
    585 U.S. 554
    , 567-68, 
    87 S. Ct. 648
    , 656 (1967); see also State v. Hinsley, 
    627 S.W.2d 351
    ,
    356 (Tenn. 1982). We fail to see any error relative to this complaint.
    XXIX. PEREMPTORY CHALLENGES
    The defendant contends that the trial court erred in allowing the state eight peremptory
    challenges pursuant to a statute enacted after he committed his offenses but before trial, arguing that
    this constituted an ex post facto application of the law. The defendant also contends that the trial
    court erred in limiting him to eight peremptory challenges pursuant to the statute, arguing that he
    should have been allowed additional challenges because he was defending four cases that had been
    consolidated for trial. The state contends that the trial court allowed the parties the correct number
    of peremptory challenges and asserts that our supreme court has considered identical arguments and
    resolved them adversely to the defendant’s positions.
    -195-
    In 1995, after the offenses were committed but before the trial, the legislature amended Tenn.
    Code Ann. § 40-18-118 to increase the number of peremptory challenges for the state from four to
    eight in cases in which the offense charged was punishable by imprisonment for more than one year
    but not by death. Initially, we note that the state only exercised four peremptory challenges.
    Nevertheless, the defendant asserts that creating the possibility that the state could exercise more
    than four peremptory challenges changed the manner in which he selected the jury. He argues that
    applying the amended statute constituted an ex post facto application of the law. We disagree. In
    State v. Pike, 
    978 S.W.2d 904
    , 925 (Tenn. 1998), a capital case, the defendant complained that the
    application of amended Rule 24(d), Tenn. R. Crim. P., violated the ex post facto provision of the
    Tennessee Constitution. When the defendant committed his crimes, Rule 24(d) provided defendants
    in capital cases with fifteen peremptory challenges and the state with only eight. The rule was
    amended before the defendant’s trial, giving him and the state eight peremptory challenges each.
    The court held that the rule regarding peremptory challenges was procedural and did not affect any
    substantial right of the defendant, and thus, applying the amended rule did not violate the ex post
    facto prohibitions. Id. at 926. We conclude that Pike controls this issue and that the trial court did
    not err in applying the amended statute in the defendant’s case.
    The defendant notes that at the time of his trial, Tenn. Code Ann. § 40-18-118 and Rule
    24(d), Tenn. R. Crim. P., were in conflict. While the statute was amended in 1995, Rule 24(d) was
    not amended to conform to the statute until 1997. Thus, during the 1996 trial, the statute provided
    for eight peremptory challenges for the state, but Rule 24(d) provided for only four. However, this
    conflict does not help the defendant’s argument. The Committee Comments to Rule 1, Tenn. R.
    Crim. P., state, “These rules take precedence over pre-existing statutes and case law which are in
    conflict with them, but statutes passed subsequent to their adoption which conflict with these rules
    shall control.” The Tennessee Rules of Criminal Procedure were adopted in 1978 and the Comments
    reflect a deference to legislative changes. We note that our supreme court has subsequently stated
    that judicial obeisance to legislative action that affects procedural and evidentiary rules is a matter
    of comity, not requirement. See State v. Mallard, 
    40 S.W.3d 473
    , 481 (Tenn. 2001). However, to
    the extent, if any, Mallard presages any change in the view taken by the Committee Comments, it
    does not affect the defendant’s 1996 trial. Thus, the trial court correctly relied upon amended Tenn.
    Code Ann. § 40-18-118.
    Within this issue, the defendant also complains that he was prejudiced because the amended
    peremptory challenges statute applied to him only because he was denied a speedy trial. As
    discussed in the defendant’s second issue, he was not denied a speedy trial in the consolidated rape
    case.
    The defendant also contends that he should have been allowed additional peremptory
    challenges because the trial was a consolidation of four cases. The defendant originally requested
    thirty-two peremptory challenges, which the trial court denied. After the defendant exercised his
    eight peremptory challenges, he requested the trial court to allow him additional peremptory
    challenges. Again, the court denied the request. The state asserts that Ellis v. State, 
    218 Tenn. 297
    ,
    
    403 S.W.2d 293
     (1966), controls this issue. We agree. In Ellis, the defendant was convicted of
    -196-
    receiving and concealing stolen property in a trial in which two indictments had been consolidated.
    The defendant argued that the trial court erred in allowing him only eight peremptory challenges,
    instead of sixteen, eight for each indictment. The Tennessee Supreme Court held that the trial court
    did not err in allowing the defendant only eight peremptory challenges, stating
    On this matter we need to keep in mind peremptory
    challenges are given in addition to challenges for cause. In fact
    they are given in addition to challenges for cause, out of an
    abundance of caution, to insure both the state and a defendant a
    fair and impartial jury. Whether there be only one indictment or
    two consolidated there is only one defendant and one jury to be
    chosen.
    218 Tenn. at 305, 403 S.W.2d at 297. Accordingly, we cannot say that the trial court erred in
    allowing the defendant only eight peremptory challenges in this case.
    XXX. SEQUESTERED JURORS’ USE OF TELEPHONE
    The defendant argues that his convictions should be reversed because the sequestered jurors
    were allowed to telephone family members. The state contends that the defendant has waived this
    issue because he did not object and did not include the issue in his motion for a new trial.
    At the end of the first day of the trial, the court provided the jury with thorough instructions
    regarding its sequestration. Within these instructions, the trial court stated that it would allow jurors
    to telephone “home in the presence of an officer. . . . [T]hey will stand there and listen to your end
    of the conversation. In other words, it will be in your presence. If you want to make a phone call,
    under those circumstances, you will be allowed to do that at our expense.” The defendant did not
    object. However, he claims that he objected to allowing such telephone contact the day before at a
    meeting with the trial judge and jurors at the motel. Although he recalls a court reporter being
    present at that meeting, he acknowledges that there is no transcript of that meeting. Thus, the
    defendant admits that the record does not reveal an objection to allowing the jurors to telephone their
    families. Also, as the state points out, the defendant did not raise this issue in his motion for a new
    trial or in one of his numerous amendments to that motion. Accordingly, we agree with the state that
    the defendant has waived this issue. See T.R.A.P. 3(e), 36(a).
    The defendant, however, asserts that allowing telephone contact was a break in the jury’s
    sequestration constituting plain error, and thus, cannot be waived. See Tenn. R. Crim. P. 52(b). We
    disagree. Allowing the jurors to telephone their families in the presence of a court officer was not
    error. In State v. Bondurant, 
    4 S.W.3d 662
    , 671 (Tenn. 1999), our supreme court stated that the test
    in determining whether jury separation occurred is “whether a juror passes from the attendance and
    control of the court officer.” In this case, the trial court specifically instructed the jurors and the
    court officers that any telephone calls would occur in the officer’s presence. There is no evidence
    in the record, and the defendant does not allege, that any juror passed from the attendance and
    -197-
    control of the court officer. This issue is without merit. Moreover, the defendant cannot assert plain
    error when the state was not given a chance in the trial court to rebut any presumption of prejudice
    that might arise from a finding of a sequestration break.
    XXXI. REDIRECT EXAMINATION OF TOM PRESSLEY
    The defendant contends that the trial court erred by allowing the state to introduce new
    evidence in its redirect examination of Detective Tom Pressley. The defendant complains that the
    state asked Detective Pressley about the car he saw when he went to Cahaba Lane with G. T., about
    statements G. T. made, and about G. T.’s emotional state when he first saw her. The defendant
    argues that this evidence was not rebuttal evidence to his cross-examination and, therefore, should
    not have been admitted during the state’s redirect examination. The state contends that no new
    evidence was introduced in its redirect examination, arguing that all of the evidence elicited on
    redirect had already been introduced. We agree with the state.
    “The admissibility of testimony and other evidence, as well as the scope of redirect
    examination, is within the discretion of the trial court, whose ruling will not be reversed absent an
    abuse of that discretion.” State v. Chearis, 
    995 S.W.2d 641
    , 645 (Tenn. Crim. App. 1999).
    “Tennessee law is well-settled that redirect examination can broach topics raised on
    cross-examination even though those matters were not inquired into on direct examination.” State
    v. Baker, 
    966 S.W.2d 429
    , 433 (Tenn. Crim. App. 1997).
    During the state’s redirect examination of Detective Pressley, he testified that G. T. gave him
    a description of the car that the defendant was driving when the defendant picked her up. He said
    that this description matched the car he saw when he took G. T. to Cahaba Lane, including that the
    car had a child restraint seat. The state correctly points out that the defendant questioned Detective
    Pressley about the car on cross-examination. The defendant asked, “Then she told you, as she got
    in the car with this white male in a gray car, with a baby seat in the back, she told you – excuse me
    – ‘He told me,’ is what it was, ‘that she could take me where it had occurred.’ Is that correct?”
    Also, we note that G. T. testified earlier in the trial that the defendant was driving a gray car and that
    the same car was at Cahaba Lane when she and Detective Pressley returned to the crime scene. The
    state’s redirect examination about the car was not improper.
    The defendant also complains that the state improperly introduced new and inadmissible
    hearsay evidence when Detective Pressley testified on redirect examination about statements made
    by G. T. On redirect examination, Detective Pressley testified that when he and G. T. arrived at the
    crime scene and saw a car, G. T. said, “There is the car now.” Also, Detective Pressley testified that
    when they saw the defendant, G. T. said, “That is him there.” Initially, we note that the defendant
    did not object as to hearsay or as to exceeding the scope of redirect examination on either of these
    occasions. In any event, the defendant raised these issues on his cross-examination of Detective
    Pressley. The defendant questioned the detective about the car, providing a description of it, and
    even asked him, regarding when he and G. T. returned to the Cahaba Lane and saw the defendant,
    -198-
    “Okay. She says, ‘That is the man,’ is that right?” The trial court did not abuse its discretion in
    allowing redirect examination testimony regarding issues raised on cross-examination.
    The defendant next contends that the trial court improperly allowed Detective Pressley to
    testify about G. T.’s emotional state. On redirect examination, the state asked Detective Pressley
    to describe G. T.’s physical and emotional state when he first saw her. The defendant’s objection
    was overruled, and Detective Pressley stated that she was upset. The defendant objected to the
    answer as conclusory, and the court instructed the detective to describe her appearance. Detective
    Pressley then testified that G. T. was weeping and scared. We do not believe that this was improper
    redirect examination. On cross-examination, the defendant attacked G. T.’s credibility, suggesting
    that she lied about being raped. Thus, G. T.’s emotional state was relevant because from this
    evidence the jury could infer that she was not lying about being raped. Moreover, on cross-
    examination, the defendant asked Detective Pressley, “Well, would it surprise you to learn that she,
    testified that, when she went in and asked them for a drink of water, they could see that she was
    upset about something, and so they called the police? Would that surprise you?” Thus, the
    defendant had stated on cross-examination that G. T. was upset just before Detective Pressley first
    saw her. No new evidence was introduced during the state’s redirect examination of Detective
    Pressley. We conclude that the trial court did not err in its handling of this redirect examination.
    XXXII. BILL OF PARTICULARS
    The defendant contends that the trial court erroneously failed to grant his motions for
    judgments of acquittal in the consolidated rape trial due to a fatal variance between the proof and the
    dates of the offenses alleged in the bill of particulars. He argues that the weight of the evidence was
    contrary to the jury’s verdict after he established through unchallenged proof that he was elsewhere
    at the times specified in the bill of particulars. He also argues that the trial court prevented him from
    presenting a defense of alibi by refusing to instruct the jury on the dates alleged in the bill of
    particulars. The state questions whether any variance exists and, alternatively, contends that any
    variance between the dates alleged in the bill of particulars and the trial testimony was neither
    material nor prejudicial.
    On January 24, 1994, the defendant moved for a bill of particulars in each of the rape cases.
    The state opposed this motion on November 16, 1994, contending that the indictments provided
    sufficient notice of the charges and that the defendant was instead seeking broad discovery through
    his request for a bill of particulars. On April 2, 1996, the trial court ordered the state to provide the
    defense with the dates, places, and persons present during the offenses. On April 8, 1996, the state
    filed a bill of particulars. Beginning on April 15, 1996, the victims testified regarding the offenses
    at the hearing on the state’s motion to consolidate the rape cases. On April 29, 1996, the defendant
    filed a notice of alibi for the dates listed in the bill of particulars. The following chart gives the dates
    alleged in the presentments, in the bill of particulars, in the victims’ testimony at the consolidation
    hearing, and in the victims’ trial testimony:
    Bill of                  Consolidation
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    Presentments          Particulars             Hearing                   Trial
    D. C.            ___ day of            Between August 23, First or second                Second
    August 1991           1991 and September week in August                 week in
    6, 1991                                           August
    A. D.            October 5, 1992       October 5, 1992         First week of             October 5,
    October 1992              1992
    G. T.            ___ day of            On or about             February 1992             February 1992
    February 1992         February 27, 1992
    The defendant moved for a judgment of acquittal at the end of the state’s proof, arguing that a fatal
    variance existed between the proof of the dates of the offenses against the victims and the dates
    alleged in the bill of particulars. He again moved for a judgment of acquittal following the close of
    all proof. The trial court denied both motions, agreeing with the state that it only had to prove that
    the offenses occurred before the finding of the presentment.
    The trial court instructed the jury on alibi using the instruction requested by the defendant.
    The defendant contends that he also filed requests asking the trial court to instruct the jury on the
    dates of the offenses provided in the bill of particulars and on variance. These requests are not
    contained within the forty-two pages of technical record cited by the defendant, nor did our review
    of the remainder of the technical record reveal these filings. However, in a jury-out discussion
    preceding the defendant’s proof, the court ruled that it would not submit the bill of particulars to the
    jury with the indictment. The court permitted the defense to read the bill of particulars to the jury
    at the start of the defense proof and to argue the dates in the bill of particulars during closing
    argument. Regarding the bill of particulars, the trial court instructed the jury as follows:
    The defense read to you a bill of particulars. It was filed in
    this case by the State before the witnesses testified under oath.
    The bill of particulars stated the approximate dates for each
    offense. The bill of particulars is not conclusive evidence that
    anything happened on the dates stated in it.
    You are instructed to determine the dates of the alleged
    offenses on the basis of all the testimony and other evidence in
    the case. The State must prove beyond a reasonable doubt that
    the alleged crime was committed before the finding and returning
    of the indictment in this case.
    We begin by noting that the only variance between the bill of particulars and the trial
    testimony that we can discern is that relating to the date of the offenses against D. C. The state
    contends that no variance exists because D. C. testified that her memory was not reliable in
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    remembering dates and times. It argues that the jury was entitled to find that D. C. was mistaken
    about the date. The state relies upon State v. Jeffery Edward Pitts, No. 01C01-9701-CC-00003,
    Wayne County (Tenn. Crim. App. Mar. 18, 1999), app. denied (Tenn. Oct. 11, 1999), in which the
    defendant argued that the dates to which the sexual battery victim testified – two consecutive days
    in the summertime – varied fatally from the non-consecutive dates in June provided by the state in
    the bill of particulars and its election of offenses. This court held that no variance existed, noting
    that the state presented documentation relating to the non-consecutive dates and the victim testified
    that the offenses occurred in the summertime. Id., slip op. at 6. This court observed that the only
    evidence relating to the consecutive dates came from the testimony of the mentally disabled victim
    and that this conflict in the proof was for the jury to resolve. Id.
    In contrast in the present case, the state presented no evidence at trial that the offenses against
    D. C. occurred between August 23 and September 6, 1991. The victim testified that although she
    did not recall the exact day, the offenses occurred the second week of August 1994. She explained
    that she was certain that it was the second week of August because she was only making “regular”
    money when the offenses occurred, stating that in the first week of the month the prostitutes made
    “good” money. While being cross-examined about a November 2, 1992 statement she gave to the
    police, the victim testified that her memory of when she talked to the police was not good regarding
    dates and times. Although she admitted that her memory was not as good at the time of trial as when
    she gave the statement in 1992, she asserted that there was nothing wrong with her memory in this
    case. In light of the state’s proof that the offenses occurred in the second week of August and the
    absence of proof otherwise, we believe that a variance existed between the proof at trial and the dates
    provided in the April 8, 1996 bill of particulars.
    “A variance between an indictment or a subsequent bill of particulars and the evidence
    presented at trial is not fatal unless it is both material and prejudicial.” State v. Shropshire, 
    45 S.W.3d 64
    , 71 (Tenn. Crim. App. 2000) (citing State v. Moss, 
    662 S.W.2d 590
    , 592 (Tenn. 1984)).
    A variance is not material if the allegations and evidence at trial substantially agree. Moss, 662
    S.W.2d at 592.
    “Unless substantial rights of the defendant are affected by
    a variance, he has suffered no harm, and a variance does not
    prejudice the defendant’s substantial rights (1) if the indictment
    sufficiently informs the defendant of the charges against him so
    that he may prepare his defense and not be misled or surprised at
    trial, and (2) if the variance is not such that it will present a
    danger that the defendant may be prosecuted a second time for the
    same offense; all other variances must be considered to be
    harmless error.”
    Id. A material variance results when the state presents proof or uses theories at trial that the
    indictment does not fairly encompass. Shropshire, 45 S.W.3d at 71.
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    A charging instrument does not have to allege the time of the offense unless time is a
    material element of the offense. Tenn. Code Ann. § 40-13-207. Instead, “the offense may be alleged
    to have been committed on any day before the finding thereof, or generally before the finding of the
    indictment.” Shropshire, 45 S.W.3d at 71. The state does not have to provide strict proof that the
    offenses transpired on the dates in the charging instrument or a bill of particulars “unless those dates
    are essential to proving the offense or imposing a defense.” State v. Ealey, 
    959 S.W.2d 605
    , 609
    (Tenn. Crim. App. 1997). Time is not a material ingredient in the offenses with which the defendant
    was charged and convicted: aggravated rape, rape, especially aggravated kidnapping, aggravated
    kidnapping, and robbery. See Tenn. Code Ann. §§ 39-13-304, -305(a)(1), -401, -502, -503. Thus,
    any variance between the time alleged in the indictment and the time proven at trial is not a material
    variance. See State v. Vickers, 
    985 S.W.2d 1
    , 9 (Tenn. Crim. App. 1997) (holding it immaterial that
    the indictment alleged April 1990 and the proof showed August 1990 when both months preceded
    the return of the indictment).
    Furthermore, the defendant was not prejudiced by the variance. The defendant contends that
    the variance deprived him of notice of the offenses. He argues that the trial court’s refusal to hold
    the state to the dates charged in the bill of particulars made the narrowing of the presentments by the
    bill of particulars meaningless. He concludes that the trial court’s instruction on the bill of
    particulars amounted to a constructive amendment of the indictment and bill of particulars following
    the proof, which violated his constitutional right to notice under the Sixth Amendment of the United
    States Constitution and article I, section 9 of the Tennessee Constitution.
    Rule 7(c), Tenn. R. Crim. P., provides that “[u]pon motion of the defendant the court may
    direct the filing of a bill of particulars so as to adequately identify the offense charged.” The
    committee comments note that this rule allows a bill of particulars if the defendant needs one to
    know the precise charges against him or her. Committee Comments, Tenn. R. Crim. P. 7(c). The
    comments caution that the rule “is to be construed to serve that singular purpose, and is not meant
    to be used for purposes of broad discovery.” Id. The function of a bill of particulars is to give the
    defendant sufficient information about the charges in order that he or she may prepare a defense and
    to prevent prejudicial surprise at trial. State v. Hicks, 
    666 S.W.2d 54
    , 56 (Tenn. 1984); see also State
    v. Hammonds, 
    30 S.W.3d 294
    , 303 (Tenn. 2000).
    In the present case, the trial court found that the defendant was on notice of the dates that the
    state intended to prove at trial because he heard the victims testify to these dates at the consolidation
    hearing. We agree that the defendant had notice at the consolidation hearing, which occurred over
    a month before the trial. The defendant argues that oral testimony fails to satisfy the requirement
    of notice under the Tennessee Constitution. Article I, section 9 of the Tennessee Constitution
    provides that a criminal defendant has the right “to demand the nature and cause of the accusations
    against him, and to have a copy thereof.” The defendant does not allege that he was not provided
    a copy of the presentments, which informed him of the charges that he faced. Our supreme court
    has recognized that a bill of particulars is not necessary when the state has provided the defendant
    with the information in another acceptable form. See Hicks, 666 S.W.2d at 56. Moreover, this court
    has held that a defendant was not unfairly surprised by a variance in the indictment and proof when
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    the victim had given the same evidence in the first trial which ended in a hung jury. Shropshire, 45
    S.W.2d at 71. In the present case, the defendant learned of the dates that the state would seek to
    prove at trial through the victims’ sworn testimony at the consolidation hearing and had the
    opportunity to cross-examine the victims at that time. The defendant was not surprised by the dates
    to which the victims testified at trial.
    The defendant also contends that the trial court prevented him from presenting a defense by
    refusing to hold the state to the dates alleged in the bill of particulars. As discussed, after hearing
    the victims testify at the consolidation hearing, the defendant was on notice of the dates for which
    he should provide an alibi. He had no basis for relying upon the dates in the bill of particulars when
    he knew that the state would prove the other dates at trial.
    The defendant next contends that the variance between the bill of particulars and the proof
    at trial places him at risk of being convicted anew on the offenses to which the victims testified. He
    also contends that by refusing to instruct the jury on the bill of particulars, the trial court instructed
    the jury on different crimes from those alleged. The Double Jeopardy Clause of both the state and
    federal constitutions “protects against a second prosecution for the same offense after acquittal. It
    protects against a second prosecution for the same offense after conviction. And it protects against
    multiple punishments for the same offense.” North Carolina v. Pearce, 
    395 U.S. 711
    , 717, 
    89 S. Ct. 2072
    , 2076; State v. Phillips, 
    924 S.W.2d 662
    , 664 (Tenn.1996). A defendant “can rely upon the
    entire record in the event that future proceedings are taken against him for the same offense.” State
    v. Mayes, 
    854 S.W.2d 638
    , 642 (Tenn. 1993) (holding that the indictment combined with the record
    would prevent subsequent prosecution for a drug sale at the time and place in the indictment despite
    the variance regarding the purchaser). As discussed above, all of the proof at trial with regard to the
    offenses against D. C. revealed that the offenses occurred in the second week of August. The
    defendant is secure against future convictions for the same offenses.
    Finally, the defendant contends that in the state’s rebuttal closing argument, the prosecutor
    made improper and prejudicial arguments to the jury regarding the mistakes he made with regard
    to the dates in the bill of particulars. He argues that the prosecutor’s explanation for the variance in
    the dates in the bill of particulars and the trial testimony constituted material not in evidence and was
    the prosecutor’s personal opinion. We address this contention in Issue XVI(B) and hold that the
    defendant cannot now complain about the prosecutor’s explanation of the variance in the dates when
    he challenged the prosecutor to explain the variance in his closing argument.
    XXXIII. MOTIONS FOR JUDGEMENTS OF ACQUITTAL
    Finally, the defendant contends that the trial court erroneously denied his motions for
    judgments of acquittal in the consolidated rape trial with regard to the counts of anal and vaginal
    rape of G. T. and the robbery of D. L. He summarily argues that although the jury acquitted him of
    the vaginal rape and robbery counts, he nonetheless suffered prejudice because the submission of
    these “throw away” counts to the jury increased the probability that it would convict him on the
    other charges despite the weak proof. The state contends that the defendant has failed to show how
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    he was prejudiced by the trial court’s denial of the motions for a judgment of acquittal on these
    counts. It also argues that the state’s evidence of the anal and vaginal rapes of G. T. was sufficient
    for the trial court to summit those counts to the jury.
    Before a defendant may receive relief from a conviction, he or she must demonstrate that an
    “error involving a substantial right more probably than not affected the judgment or would result in
    prejudice to the judicial process.” T.R.A.P. 36(b). In the present case, the jury acquitted the
    defendant of the vaginal rape of G. T. and deadlocked as to the counts relating to D. L. The
    defendant has failed to explain how he was prejudiced by the trial court’s denial of his motions for
    judgment of acquittal other than his bare assertion that submitting these counts to the jury increased
    the likelihood that he would be convicted of something. The defendant does not support this
    assertion with any authority or with an explanation of why submission of these counts to the jury
    would necessarily result in the jury convicting him on the remaining counts. We deem the
    defendant’s bare assertion on the harm from the acquitted counts to be unconvincing.
    The defendant contends that the trial court erred in submitting the anal rape count to the jury
    because the victim testified at the consolidation hearing that the defendant was not able to penetrate
    her anally. The trial court shall grant a judgment of acquittal upon motion or sua sponte “if the
    evidence is insufficient to sustain a conviction.” Tenn. R. Crim. P. 29(a). Our standard of review
    when the sufficiency of the evidence is questioned 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, 99 S.
    Ct. 2781, 2789 (1979). At trial, G. T. testified that the defendant inserted his penis into her anus.
    The trial court did not err in submitting the anal rape count to the jury.
    The defendant also contends that the prosecutor used the trial court’s erroneous denial of his
    motion for a judgment of acquittal on the vaginal rape count to make an improper argument on the
    standard for reasonable doubt. We address this argument in Issue XVI(B) and determine that the
    prosecutor did not give an improper standard for reasonable doubt.
    CONCLUSION
    Based upon the foregoing and the record as a whole, we affirm the judgments of conviction
    in the first rape trial and those convictions in the consolidated rape trial for the offenses against A.
    D. and G. T. We reverse the convictions for three counts of aggravated rape and one count of
    especially aggravated kidnapping of D. C. because that case was improperly consolidated with the
    other rape cases and remand those counts to the trial court for a new trial.
    ___________________________________
    JOSEPH M. TIPTON, JUDGE
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