State of Tennessee v. Jimmy D. Pickett

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
October 25, 2006 Session
STATE OF TENNESSEE v. JIMMY DALE PICKETT
Direct Appeal from the Circuit Court for Franklin County
No. 15548 Thomas W. Graham, Judge
No. M2005-02434-CCA-R3-CD - Filed February 14, 2007
A Franklin County Circuit Court jury convicted the appellant, Jimmy Dale Pickett, of first degree
premeditated murder and especially aggravated robbery, and the trial court sentenced him to
concurrent sentences of life and twenty years, respectively. On appeal, the appellant claims (1) that
he is entitled to a retrial because the State violated the rule of sequestration; (2) that the trial court
erred by denying his motions to suppress his confessions; (3) that the trial court erred by allowing
the jury to use a transcript, which had not been introduced into evidence, during deliberations; (4)
that the trial court erred by refusing to give the jury a corpus delicti instruction; and (5) that the State
committed prosecutorial misconduct during closing arguments. Finding no errors requiring reversal,
we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are Affirmed.
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which DAVID H. WELLES and J.C.
MCLIN , JJ., joined.
Philip A. Condra and Quisha Light, Jasper, Tennessee, for the appellant, Jimmy Dale Pickett.
Paul G. Summers, Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General; J.
Michael Taylor, District Attorney General; and Steven Blount, Assistant District Attorney General,
for the appellee, State of Tennessee.
OPINION
I. Factual Background
The appellant does not contest the sufficiency of the evidence. Taken in the light most
favorable to the State, the evidence at trial revealed that on Tuesday, October 14, 2003, Beverly
Searles telephoned the Franklin County Sheriff’s Department and reported that her brother, John
Harlan Moore, had not reported to work that day and was missing. The next evening, Officer Dustin
Foster went to the Pickett farmhouse on Old Salem-Lexie Road and spoke with the appellant. He
asked the appellant about Moore, and the appellant gave Officer Foster directions to Moore’s trailer.
The appellant seemed nervous, and Officer Foster noticed a small yellow Toyota pickup truck parked
at the farmhouse.
Officer Foster and another officer drove to Moore’s trailer. When they got out of the car,
they immediately smelled a decaying body. Officer Foster telephoned Investigator Mike Bell, who
told the officers to go into the trailer. The officers pried open the door, went into the trailer’s rear
bedroom, and found Moore dead in his bed. They immediately left the trailer, secured the scene, and
telephoned Investigator Bell.
When Investigator Bell arrived at the scene, he put on a respirator and went into the victim’s
bedroom. Blood splatter was on the bedroom walls, but a clean sheet covered the victim.
Investigator Bell requested help from the Tennessee Bureau of Investigation (TBI) and spoke with
Jean Grant, the victim’s neighbor. Grant told Investigator Bell that she last saw the victim alive on
the Saturday or Sunday morning before officers found his body and that she saw the victim come out
of his trailer and walk past her house. The appellant drove by, blew the horn, and the victim got into
the appellant’s car. The two men then drove back to the victim’s trailer. Grant often saw the
appellant coming and going from the trailer but did not know if he lived there with the victim. After
speaking with Grant and some of the victim’s other neighbors, Investigator Bell decided that he
needed to speak with the appellant. At 3:00 a.m. on October 16, Investigator Bell and several
officers left the victim’s trailer and went to the Pickett farmhouse. When they arrived, Investigator
Bell knocked on the front door, but no one answered. The officers went to the back door and noticed
that it was standing open. The appellant was gone, but a cooler containing ice and beer was in the
back of the yellow pickup truck. Officers immediately began searching for the appellant, and
surrounding counties sent manpower to help with the search.
On the evening of October 16, a group of officers approached an abandoned tractor trailer
rig and found the appellant hiding in the rig’s sleeper berth. They arrested him, and Tullahoma
Police Department Detective Earl Morse informed the appellant of his rights. Franklin County
Sheriff’s Department Lieutenant Danny Warren put the appellant into his police vehicle and asked
the appellant if he wanted to tell him what had happened to the victim. The appellant said yes and
told Lieutenant Warren the following: The victim had been stealing money from the appellant. On
Friday, October 10, 2003, the victim stole twenty dollars out of the appellant’s wallet. About 7:00
a.m. the next morning, the appellant stood in the doorway of the victim’s bedroom and shot the
victim with a sixteen-gauge shotgun while the victim was sleeping in bed. After the shooting, the
appellant covered the victim with a sheet and took the victim’s wallet out of a pair of pants that were
on the bed. The appellant took one hundred six dollars out of the wallet, drove to the Speedway
Market, and bought beer. The appellant said that he had been planning to kill the victim for at least
two weeks.
Lieutenant Warren drove the appellant to Bean’s Creek, where the appellant showed him the
shotgun he had used to kill the victim and three live shotgun shells. The appellant also told
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Lieutenant Warren that he had thrown the victim’s wallet into a creek in Moore County and that he
had consumed antifreeze. Lieutenant Warren drove the appellant to the emergency room at the
Southern Tennessee Medical Center (SMTC). The next day, Lieutenant Warren drove to Moore
County and found the victim’s wallet. The wallet contained the title to a 1981 Toyota pickup in the
name of Jeremy Pickett.
Faye Jernigan, a nurse in the emergency room, testified that the appellant did not appear to
be intoxicated on the night of October 16. The appellant told her that he drank at least one-half can
of antifreeze because he had shot a man with a sixteen-gauge shotgun. The appellant was treated for
ingesting antifreeze and was transferred to Vanderbilt Hospital. Franklin County Sheriff’s
Department Deputy Ricky Summers testified that he sat with the appellant while the appellant was
being treated at the SMTC and that the appellant said, “All this treatment for just killing somebody.”
Two other officers, who were assigned to guard the appellant at the SMTC and Vanderbilt, also
testified that the appellant said he killed a man.
After being treated at Vanderbilt, the appellant was transferred to Harton Hospital in
Tullahoma. On October 20, TBI Special Agent Kendall Barham visited the appellant in his hospital
room, advised the appellant of his Miranda rights, and interviewed him. He took notes during the
interview, went to his office and typed out the appellant’s statement, and returned to the hospital.
The appellant read and signed the statement. According to the statement, the appellant was living
with the victim, and the victim was stealing money from him. The appellant got “fed up [and] pissed
off” about the victim’s stealing and decided that he “would be doing Harlan a favor by killing him.”
On Saturday, October 11, 2003, the appellant woke up early, saw the victim in the appellant’s
bedroom, and saw the victim going through the appellant’s billfold. The appellant did not say
anything to the victim and went back to sleep. He woke up again about 5:30 a.m. and walked to the
doorway of the victim’s bedroom. The victim was asleep, lying on his back, and was facing toward
a window but away from the appellant. The appellant shot the victim, picked up the empty shotgun
shell, and covered the victim with a sheet that had been laying on the floor. The appellant carried
the victim’s pants to the living room and took money out of the victim’s wallet. He left the house
and drove away in the victim’s yellow pickup truck. Agent Barham testified that the police found
a pair of pants in the victim’s living room and that the appellant appeared truthful.
Forensic Pathologist Charles Harlan performed the victim’s autopsy on October 17, 2003,
and testified that the victim died of a shotgun wound to the forehead. The victim’s body was
significantly decayed, and Dr. Harlan stated that the victim had been dead “about a week, give or
take a few days.” He stated that fluids collected from the victim were not suitable for toxicology
tests due to the body’s condition. TBI Special Agent Forensic Scientist Shelly Betts examined a
plastic shot sleeve, wadding, and nineteen lead pellets recovered from the victim and concluded that
they were consistent with a sixteen-gauge shotgun shell. TBI Special Agent Forensic Scientist
Robert E. McFadden testified that he found the appellant’s fingerprint on a glass jar in the victim’s
kitchen. He also found the appellant’s fingerprint on a beer can and a cigarette pack in the victim’s
living room.
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The appellant’s ex-wife testified for the appellant that he was meek, did not have a bad
temper, and was not violent. Her current husband testified that he had known the appellant for ten
years and had never seen the appellant angry or violent. The jury convicted the appellant of first
degree premeditated murder and especially aggravated robbery.
II. Analysis
A. Violation of the Rule of Sequestration
First, the appellant claims that he is entitled to a new trial because some of the State’s
witnesses “blatantly, unashamedly, and haughtily” violated Tennessee Rule of Evidence 615, the rule
of sequestration. The State contends that the appellant has waived this issue because he failed to
object at trial and that his “bald accusations” are not supported by the record. We agree with the
State that the appellant has waived this issue.
Investigator Bell testified for the State on the second day of trial. On cross-examination,
defense counsel asked Bell if he remembered meeting with some people, including the prosecutors
and Agent Barham, after trial adjourned the previous day. Investigator Bell answered, “Possibly,”
and counsel then asked him, “Were discussions held at that moment about how the testimony had
developed during the day?” Investigator Bell again answered, “Possibly” and said, “I don’t
remember.” He then acknowledged the meeting occurred but said he did not remember exactly what
was said during the meeting. Agents Betts and McFadden testified for the State on the third day of
trial. On cross-examination, Agent Betts testified that the previous day, she heard Agent Barham
ask Agent McFadden about whether the window in the victim’s bedroom had been open or closed
during the TBI’s investigation. Agent McFadden acknowledged on cross-examination that the
previous day, Agent Barham brought “the question of the half opened window” to his attention. He
said that Agent Barham had not yet testified when Barham talked with him about the window.
Tennessee Rule of Evidence 615 is the rule of sequestration and is “now colloquially referred
to as ‘The Rule.’” Neil P. Cohen et al., Tennessee Law of Evidence, § 6.15[2] (5th ed. 2005). Rule
615 provides that “[a]t the request of a party the court shall order witnesses, including rebuttal
witnesses, excluded at trial or other adjudicatory hearing. . . . The court shall order all persons not
to disclose by any means to excluded witnesses any live trial testimony or exhibits created in the
courtroom by a witness.” Tenn. R. Evid. 615. The purpose of the Rule is to “prevent one witness
from hearing the testimony of another and adjusting his testimony accordingly.” State v. Harris, 839
S.W.2d 54, 68 (Tenn. 1992). The Rule may be invoked at any time and is mandatory upon its
invocation. See State v. Anthony, 836 S.W.2d 600, 605 (Tenn. Crim. App. 1992). There is no
prescribed sanction for a violation of the Rule; rather, a trial court retains discretion to impose the
appropriate sanction. See State v. Black, 75 S.W.3d 422, 424 (Tenn. Crim. App. 2001). Further,
“[t]he decision to exclude or allow the testimony is a matter within the discretion of the trial court,
subject to a showing of abuse and prejudice to the complaining party.” Id. at 424-25.
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The appellant claims that Investigator Bell discussed the evidence with the prosecutors after
the first day of trial and then “carried the information” to Agents Betts and McFadden. He contends
that his accusations are “abundantly supported by the testimony of the violators.” In a separate, but
related issue, the appellant also claims that he was denied due process by “[c]areless utterances,
made in the presence of a sequestered witness who then pursued it with two other State’s witnesses”;
that the State’s failure to disclose the after-hours meeting violates Brady v. Maryland, 373 U.S. 83,
83 S. Ct. 1194 (1963); and that Agents Barham, Betts, and McFadden “could have been prohibited
from testifying as a sanction for this improper contact.”
Our review of the record reflects that before the first State witness testified, the Rule was
invoked. The defense briefly questioned Investigator Bell during cross-examination about whether
a meeting occurred after the first day of trial and whether the participants discussed the evidence.
The defense also briefly questioned Agents Betts and McFadden about whether they had discussed
evidence. However, the appellant never alleged at trial that the witnesses violated the Rule, never
objected to any of the witnesses’ testimony, and never requested a jury-out hearing to determine the
facts of the violation or prejudice to the appellant. Therefore, we hold that he has waived these
issues. See Tenn. R. App. P. 36(a) (providing that our rules do not require “relief [to] be granted to
a party responsible for an error or who failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error”). Moreover, given the overwhelming evidence of
the appellant’s guilt, we discern no plain error. See Tenn. R. Crim. P. 52(b).
B. Motions to Suppress
Prior to trial, the appellant filed three motions to suppress his statements to police. The trial
court heard the first motion during one suppression hearing and heard the remaining two motions
during a second suppression hearing. The appellant claims that the trial court erred by failing to
grant his motions to suppress his statements and any evidence obtained as a result of his statements.
He contends that the trial court “chose to rearrange . . . facts learned long after the [appellant’s]
arrest” and “injected its own facts” during the suppression hearings. The State argues that the trial
court properly denied the appellant’s motions. We agree with the State.
1. Involuntary Confession
In the appellant’s first motion to suppress, he argued that the trial court should suppress his
statements to police because he (1) did not knowingly, intelligently, and voluntarily waive his
Miranda rights; (2) was secretly audiotaped in violation of his right against self-incrimination; and
(3) was questioned by police after an attorney had been appointed to represent him. At the motion
hearing, Detective Morse testified for the State that on October 16, 2003, his superior officer asked
him to take the SWAT team to the Lexie Crossroads area of Franklin County to help look for a man
involved in a shooting. Detective Morse and some of his colleagues with the special operations force
went to the location. About fifteen or twenty minutes after they arrived and started searching, they
approached an old, abandoned tractor trailer rig. A wasp nest was in the passenger door, so another
officer opened the driver’s side door, looked into the rig’s sleeper berth, and found the appellant.
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Detective Morse estimated that the temperature in the rig was about one hundred ten degrees and
said, “There was no reason anybody could conceivably be living in that tractor-trailer.”
The appellant calmly exited the rig, officers placed him on the ground and handcuffed him,
and Detective Morse recited Miranda warnings. Although the appellant was lying on the ground on
his stomach, he turned his head and looked up at Detective Morse while Morse was reciting the
appellant’s rights. Detective Morse stated that he asked the appellant twice if he understood the
warnings, and the appellant said yes twice. The appellant later led officers to Bean Creek, where
they found a sixteen-gauge shotgun and some shotgun shells. Detective Morse stated that the
appellant sounded “normal,” never seemed confused, never offered any resistance, and gave specific
directions to the gun and shells. On cross-examination, Detective Morse stated that he did not notice
if the appellant was unsteady on his feet, and he acknowledged that he did not ask the appellant if
the appellant wanted to waive his rights.
Lieutenant Warren testified that he learned officers had found the appellant and that he drove
to the appellant’s location. When he arrived, the appellant was lying on the ground with his hands
cuffed behind his back, and Detective Morse was finishing Miranda warnings. Officers stood the
appellant up, and Lieutenant Warren walked the appellant to his police vehicle. He put his arm
around the appellant and asked if the appellant wanted to tell him what had happened to the victim.
The appellant said yes and told him about the shooting. Lieutenant Warren put the appellant into
his vehicle and put a transmitter device on the dashboard to record what was being said in the
vehicle. Although the transmitter was on the dashboard, Lieutenant Warren did not tell the appellant
about it. The appellant then led officers to Bean’s Creek. Lieutenant Warren said that the appellant
gave specific details about the crimes and did not act like he had consumed alcohol or drugs.
On cross-examination, Lieutenant Warren testified that Detective Morse asked the appellant
if he understood his rights and the appellant said yes. Lieutenant Warren never repeated the Miranda
warnings for the appellant. He acknowledged that the appellant’s statements captured by the
transmitter were recorded and that a written transcript of the recording shows parts of the appellant’s
conversation with Lieutenant Warren were inaudible.
Agent Barham testified that on October 17, 2003, he attended the victim’s autopsy in
Nashville and visited the appellant at Vanderbilt Hospital. Agent Barham advised the appellant of
his rights and told the appellant that he needed to speak with him about the victim’s death. The
appellant was hooked up to a dialysis machine and seemed lethargic, so Agent Barham decided not
to interview him at that time. On October 20, Agent Barham visited the appellant at Harton Regional
Medical Center in Tullahoma. He read Miranda warnings to the appellant, and the appellant said
that he remembered them from his arrest. The appellant agreed to talk, and Agent Barham took
notes during the interview. He left the hospital and typed out the appellant’s statement. That
afternoon, he obtained the appellant’s eyeglasses and returned to the hospital. He read the
appellant’s statement to him, and the appellant read it. The appellant seemed alert, made no changes
to the statement, and signed it. On cross-examination, Agent Barham acknowledged that he did not
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ask the appellant if he wanted to waive his rights and that a guard was present while he spoke with
the appellant at Vanderbilt and Harton hospitals.
The State recalled Lieutenant Warren to testify. He said that on October 28, 2003, he was
at the sheriff’s department, and the appellant was in the jail. A corrections officer approached
Lieutenant Warren and told him that a man in the lobby wanted to speak with him. Lieutenant
Warren went to the lobby and spoke with the appellant’s brother, who said that the appellant had
asked for Lieutenant Warren and needed to tell the lieutenant something. Lieutenant Warren told
the appellant’s brother that he could not speak with the appellant because the appellant had an
attorney and returned to his office. A short time later, a corrections officer telephoned Lieutenant
Warren and told him that the appellant wanted to speak with him. Lieutenant Warren had officers
bring the appellant to his office and went over a waiver of rights form with the appellant. The
appellant signed the form and said that he still wanted to speak with Lieutenant Warren without an
attorney present. The appellant said he did not kill the victim but acknowledged he hid from police
and disposed of the shotgun and shells. Lieutenant Warren tape recorded his conversation with the
appellant and said the appellant responded to his questions and did not seem confused. On cross-
examination, Lieutenant Warren said he initially refused to speak with the appellant because he
“wanted the [appellant’s] request to go though an official person, instead of a family member.”
The trial court denied the appellant’s motion to suppress his statements. Regarding the
appellant’s October 16 confession to Lieutenant Warren, the trial court ruled that the appellant
received Miranda warnings and voluntarily waived his rights. Regarding the appellant’s October 20
statement to Agent Barham, the trial court found nothing improper. Finally, regarding the
appellant’s October 28 statement to Lieutenant Warren, the trial court concluded that the appellant
had not been coerced or forced into giving the statement and that the appellant had a right to speak
with Lieutenant Warren without his attorney present.
In reviewing a trial court’s determinations regarding a suppression hearing, “[q]uestions of
credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the
evidence are matters entrusted to the trial judge as the trier of fact.” State v. Odom, 928 S.W.2d 18,
23 (Tenn. 1996). Thus, “a trial court’s findings of fact in a suppression hearing will be upheld unless
the evidence preponderates otherwise.” Id. Nevertheless, appellate courts will review the trial
court’s application of law to the facts purely de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn.
2001). Furthermore, the State, as the prevailing party, is “entitled to the strongest legitimate view
of the evidence adduced at the suppression hearing as well as all reasonable and legitimate inferences
that may be drawn from that evidence.” Odom, 928 S.W.2d at 23. Moreover, we note that “in
evaluating the correctness of a trial court’s ruling on a pretrial motion to suppress, appellate courts
may consider the proof adduced both at the suppression hearing and at trial.” State v. Henning, 975
S.W.2d 290, 299 (Tenn. 1998).
In Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966), the United States
Supreme Court held that “the prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use
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of procedural safeguards effective to secure the privilege against self-incrimination.” These
procedural safeguards require that police officers advise a defendant of his or her right to remain
silent and of his or her right to counsel before they initiate custodial interrogation. State v. Sawyer,
156 S.W.3d 531, 534 (Tenn. 2005). If these warnings are not given, statements elicited from the
individual may not be admitted in the prosecution’s case-in-chief. Stansbury v. California, 511 U.S.
318, 322, 114 S. Ct. 1526, 1528 (1994). A waiver of constitutional rights must be made “voluntarily,
knowingly and intelligently.” Miranda, 384 U.S. at 444, 86 S. Ct. at 1612. In determining whether
a defendant has validly waived his Miranda rights, courts must look to the totality of the
circumstances. State v. Middlebrooks, 840 S.W.2d 317, 326 (Tenn. 1992).
Regarding the appellant’s statements to Lieutenant Warren on October 16 and Agent Barham
on October 20, Detective Morse testified that he gave the appellant Miranda warnings when officers
arrested the appellant on October 16, and Agent Barham testified that he re-Mirandized the appellant
on October 20 before the appellant’s interview. The witnesses testified that the appellant agreed to
speak with them and that he was alert and did not appear to be under the influence of anything. The
trial court obviously accredited the witnesses’ testimony, concluding that the appellant received
Miranda warnings and voluntarily waived his rights. We can find no proof to refute the trial court’s
findings. As to the appellant’s October 28 statement to Lieutenant Warren, the evidence shows that
the appellant sent word through his brother and a corrections officer that he wanted to speak with
Lieutenant Warren. Warren had officers bring the appellant to his office and gave the appellant
Miranda warnings, and the appellant stated that he wanted to speak without his attorney present.
Because the appellant initiated the contact with Lieutenant Warren, his right to counsel was not
violated. See Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880 (1981). The trial court properly
denied the appellant’s first motion to suppress.
2. Warrantless Arrest
In the appellant’s remaining two motions to suppress, he argued that the trial court should
suppress all evidence obtained as a result of his warrantless arrest because the police had no probable
cause to arrest him. At the suppression hearing, Officer Foster testified that the victim’s sister
reported him missing on October 14, 2003. The next day, Officer Foster spoke with her, and she told
him that the victim and the appellant “had been hanging out together.” As a result of his
conversation with her, Officer Foster went to the Pickett farmhouse and noticed a yellow pickup
truck parked there. Officer Foster knocked on the door and spoke with the appellant, who was very
nervous. The appellant told Officer Foster that he last saw the victim on Saturday, October 11
between 8:00 and 9:00 a.m. and that the victim left with a blonde female and may have been headed
toward Fayetteville. The appellant never mentioned that he had been living with the victim but gave
Officer Foster directions to the victim’s trailer. Officer Foster went there and discovered the victim’s
body. On cross-examination, Officer Foster stated that when he first arrived at the Pickett
farmhouse, the yellow pickup truck had no significance.
Investigator Bell testified that on October 15, 2003, Officer Foster telephoned him from
outside the victim’s trailer, said he was working on a missing person case, and said he smelled what
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he thought was a dead body. Investigator Bell told Officer Foster to enter the trailer, and Officer
Foster telephoned him again later and reported finding the victim. Investigator Bell went to the
scene, went into the victim’s bedroom, looked under a sheet, and saw the victim’s decaying body.
Investigator Bell noticed a lot of blood in the room but noticed that a clean white sheet covered the
victim. He immediately suspected foul play. The victim’s neighbors began arriving at the trailer to
find out what was going on. Jean Grant and other neighbors told Investigator Bell that the appellant
had been living in the trailer with the victim. Investigator Bell also learned from neighbors that
Jeremy Pickett, a relative of the appellant, had traded his small yellow pickup truck for the
appellant’s bass boat and that the pickup was usually parked at the victim’s trailer. Investigator Bell
spoke with Officer Foster, and Officer Foster told him about speaking with the appellant earlier.
Investigator Bell decided that he needed to speak with the appellant and went to the farmhouse about
3:00 a.m. He noticed a small yellow pickup parked there. The back door of the home was open, and
the appellant was gone. However, a cooler containing ice and beer was in the pickup. Investigator
Bell later located Jeremy Pickett, and he told Investigator Bell that he had traded his truck for the
victim’s, not the appellant’s, boat.
On cross-examination, Investigator Bell stated that he did not find anything with the
appellant’s name on it in the trailer and that he did not see anything in the trailer to connect the
appellant to it. He stated that he knew of no argument between the victim and the appellant at the
time of the appellant’s arrest, that he went to the Pickett farmhouse wanting only to speak with the
appellant, and that he did not get a search warrant for the farmhouse. However, he said the appellant
was a “possible suspect because he lived there [with the victim].”
The trial court ruled that many facts linked the appellant to the victim’s death, including the
appellant’s living with the victim and his being nervous when Officer Foster spoke with him. The
trial court also concluded that the appellant was “hiding out” in the tractor trailer rig when officers
discovered him and that this was “a very important factor” and “[a]n indication of guilt.” The trial
court ruled that the officers had a reasonable basis for the appellant’s warrantless arrest and denied
his two motions.
Tennessee Code Annotated section 40-7-103(a)(3) provides that an officer may arrest a
person without a warrant “[w]hen a felony has in fact been committed, and the officer has reasonable
cause for believing the person arrested to have committed [it].” In the instant case, upon the
discovery of the victim and the circumstances surrounding the discovery of his body, it was probable
that a homicide had been committed. Homicide, in its varying forms, is a felony. See Tenn. Code
Ann. § 39-13-201. Thus, our next inquiry is whether police reasonably believed the appellant
committed the offense. See State v. Lewis, 36 S.W.3d 88, 98 (Tenn. Crim. App. 2000). Our
supreme court has explained that “a reasonable ground for suspicion, supported by circumstances
indicative of an illegal act,” constitutes probable cause. State v. Henning, 975 S.W.2d 290, 294
(Tenn. 1998).
Courts should determine the existence of probable cause after assessing all of the information
available to the officer at the time of arrest. See State v. Woods, 806 S.W.2d 205, 212 (Tenn. Crim.
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App. 1990). To this end, Tennessee Rule of Criminal Procedure 4(b) provides that in the application
for the issuance of an arrest warrant, “[t]he finding of probable cause shall be based on evidence,
which may be hearsay in whole or in part provided there is a substantial basis to believe . . . the
source of the hearsay is credible . . . and . . . there is a factual basis for the information furnished.”
It has long been established that “[w]hile this rule applies itself particularly to warrants for arrest,
the same principle must be considered applicable to establish probable cause where an arrest has
been made without a warrant.” State v. Raspberry, 640 S.W.2d 227, 228 (Tenn. Crim. App. 1982);
see also State v. Tays, 836 S.W.2d 596, 600 (Tenn. Crim. App. 1992).
In this case, Officer Foster spoke with the victim’s sister, and she told him that the appellant
and the victim had been “hanging out together” and that the victim was missing. After speaking with
her, Officer Foster went to the Pickett farmhouse and spoke with the appellant. Officer Foster
noticed that the appellant was nervous, and the appellant admitted seeing the victim on October 11,
three days before the victim failed to report to work. After Officer Foster discovered the victim’s
decaying body, Investigator Bell went to the scene, and Officer Foster told Investigator Bell about
his conversation with the appellant. Neighbors also told Investigator Bell that the appellant had been
living with the victim, and neighbor Jean Grant reported that she last saw the victim alive on the
morning of October 11 or 12, several days before officers discovered the victim. She also said the
victim was with the appellant. Investigator Bell went to the Pickett farmhouse to speak with the
appellant and noticed a yellow pickup, which neighbors had reported seeing frequently at the
victim’s trailer. Investigator Bell discovered that the appellant had left the home with the back door
standing open and a cooler full of ice and beer in the pickup, indicating a hasty retreat and resulting
in a legitimate inference that the appellant was involved in the victim’s death. Then, after searching
for the appellant, officers found him hiding in the tractor trailer’s sleeper berth, which Detective
Morse estimated had a temperature of one hundred ten degrees. In light of all of the circumstances,
we conclude that the officers had probable cause to arrest the appellant.
We note that the appellant argues that the trial court “created its own conclusions and
accepted without critical analysis or fair assessment contradictory and perjurious responses from
police officers and investigators.” However, the trial court, as the trier of fact, was in the best
position to assess the credibility of the witnesses, determine the weight and value to be afforded the
evidence, and resolve any conflicts in the evidence. Odom, 928 S.W.2d at 23. The trial court
obviously accredited the officers’ testimony and resolved all conflicts in the evidence in favor of the
State. The appellant thoroughly cross-examined the State’s witnesses at the suppression hearings
and never claimed at the hearings that the witnesses were committing perjury. The trial court
properly denied the appellant’s motions to suppress.
C. Jury’s Use of Extraneous Information
Next, the appellant claims the trial court erred by allowing the jury to use a transcript of the
appellant’s audiotaped confession during deliberations because the transcript had not been
introduced into evidence. The State contends that the jurors were only allowed to examine the
transcript for determining what portion of the audiotape they wanted to hear and that the trial court
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admonished the jury at least three times that it could not consider the transcript in determining the
appellant’s guilt. We conclude that the appellant is not entitled to relief.
During Lieutenant Warren’s testimony, the State introduced into evidence an audiotape of
his October 16 conversation with the appellant made while they were sitting in Lieutenant Warren’s
police vehicle. The State also asked Lieutenant Warren about a transcript of the audiotape and
passed out copies of the transcript to each juror. The trial court instructed the jury that the purpose
of the transcript was to help the jurors follow what they heard on the tape but that the tape “controls
over any decisions you make about this testimony.” The State marked the transcript for
identification purposes only and never made it an exhibit. After the jury listened to the tape and was
excused from the courtroom, the trial court stated,
I don’t know what on earth you plan on doing or trying to do with that
tape, but I sure don’t want us to have to put the jury through much
more with regard to that. Just a suggestion in the future, if we ever
[have] something like that where there are big gaps of time, just dead
time, we need to get together before trial and cut that out.
During jury deliberations, the jury returned to the courtroom and informed the trial court that
it wanted to listen to the auidotape again. The trial court stated,
I don’t want you to talk to me about how you’re leaning or anything
about why you want to listen to the tape, but is there a particular part
of the tape that we can cue up? You know, this thing just runs from
beginning to end. They have not indexed it into parts. If there’s a
location in the transcript that you can identify for us, we could
possibly speed the process up by trying to get to it for you so you can
listen to it. Is there any particular part or do you want to listen to the
whole thing?
A juror responded that if the jury could look at the transcript, it could find the part of the tape it
wanted to hear. The trial court passed out transcripts to each juror, and one of the jurors stated,
“That’s all we need really. We don’t really need to listen.” The trial court told the jury that the
transcript “is not the exact thing,” that the jury “really ought to listen to the tape,” that the transcript
was helpful to find a location on the tape, and that the jury could take the transcripts back to the jury
room for that purpose. The defense objected, but the trial court stated, “I’m going to let them do
that. . . . Otherwise, it’s two hours or more of just sitting there.” The trial court noted that the jury
had already read the transcript once and that nothing in the transcript was particularly misleading.
The record reflects that the jury returned to the jury room and picked out four or five transcript pages
it wanted to hear on the audiotape. The corresponding portion of the tape was played for the jury,
and the jury continued deliberations.
Tennessee Rule of Criminal Procedure 30.1 (2005) states as follows:
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Upon retiring to consider its verdict the jury shall take to the jury
room all exhibits and writings which have been received in evidence,
except depositions, for their examination during deliberations, unless
the court, for good cause, determines that an exhibit should not be
taken to the jury room.
Because the transcript was introduced for identification purposes only and was not introduced into
evidence, the best practice would have been for the trial court not to allow the jury to take the
transcript copies into the jury room. However, the trial court instructed the jury during Lieutenant
Warren’s testimony that the transcript was only an aid and that the tape, not the transcript, was the
evidence. When the trial court allowed the jury to take the transcript copies into the jury room, it
stated that the jury could use the transcript for the purpose of finding the portion of the tape that the
jury wanted to hear. Generally, we presume that a jury has followed the trial court’s instructions.
See State v. Butler, 880 S.W.2d 395, 399 (Tenn. Crim. App. 1994). In any event, the appellant does
not claim there is a material difference in the audiotape and the transcript. Also, during Lieutenant
Warren’s testimony, the jury was allowed to read the transcript while it listened to the tape.
Therefore, the jury had already seen the transcript once before, and we conclude that any error was
harmless. See Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b).
D. Corpus Delicti Instruction
The appellant claims that the trial court erred by refusing to instruct the jury that the corpus
delicti of the crimes could not be proven by the appellant’s confessions alone. The State contends
that the trial court properly denied the appellant’s request for the special corpus delicti instruction
and that the appellant’s confessions were amply corroborated. We agree with the State.
A defendant has a “constitutional right to a correct and complete charge of the law.” State
v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). Accordingly, trial courts “should give a requested
instruction if it is supported by the evidence, embodies a party’s theory, and is a correct statement
of the law.” State v. Phipps, 883 S.W.2d 138, 150 n.20 (Tenn. Crim. App. 1994). However, trial
courts need not give requested instructions if the substance of the instructions is covered in the
general charge. State v. Zirkle, 910 S.W.2d 874, 892 (Tenn. Crim. App. 1995).
“Corpus delicti” literally means the body of the crime. State v. Shepherd, 862 S.W.2d 557,
564 (Tenn. Crim. App. 1992). In order to establish the corpus delicti of a crime, the State must
establish beyond a reasonable doubt (1) that a certain result has been produced and (2) that some
person is criminally responsible for the act. State v. Jones, 15 S.W.3d 880, 890-91 (Tenn. Crim.
App. 1999). State v. Smith, 24 S.W.3d 274, 281 (Tenn. 2000) (citing Ashby v. State, 139 S.W. 872,
875 (Tenn. 1911)). Some corroborating evidence is required which, independently of the confession,
tends to establish the corpus delicti of the offense charged. Id. However, where there is a
confession, the corroborative evidence “need not be as convincing as the evidence necessary to
establish a corpus delicti in the absence of any confession.” Ricketts v. State, 241 S.W.2d 604, 606
(Tenn. 1951). The corroborating evidence is sufficient to sustain a conviction if “it tends to connect
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the defendant with the commission of the offense, although the evidence is slight, and entitled, when
standing by itself, to but little consideration.” Id.; see also Smith, 24 S.W.3d at 281. “A confession
may sustain a conviction where there is other evidence sufficient to show the commission of the
crime by someone.” Taylor v. State, 479 S.W.2d 659, 661-62 (Tenn. Crim. App. 1972).
We have reviewed the jury instructions, and initially note that the trial court properly
instructed the jury on the charged offenses and all lesser included offenses. Regarding the
appellant’s confession, the trial court instructed the jury as follows:
Now, ladies and gentlemen, also evidence of a confession has
been introduced in this trial. A confession is a statement by the
defendant that he engaged in conduct which constitutes the crime
charged and is an acknowledgment of guilt itself.
The Court has ruled that the confession is admissible in
evidence, but it is your duty to judge it’s truth. In doing so you
should consider the circumstances under which the confession was
obtained as well as any evidence which contradicts all or part of the
statements made. You must consider all the statements made by the
defendant, whether favorable or unfavorable to him, and you must not
disregard any of them without good reason. If the evidence in the
case leads you to believe that the confession or any part of it is untrue
or was never made, you should disregard it, or that portion which you
do not believe.
You are the sole judge of the weight - - what weight should be
given to those portions of the confession which you believe and you
should consider them along with all other evidence in the case in
determining the defendant’s guilt or innocence.
The trial court’s instructions regarding the appellant’s confessions closely followed
Tennessee Pattern Jury Instructions--Criminal 42.12, the instruction for a confession. The
instructions clearly advised the jurors that it was their duty to determine the truth of the confessions
and the circumstances surrounding them and that the jury should disregard all or any part of the
confessions that it believed were untrue. In addition, the jury was advised that it was the sole judge
of what weight should be given to the confessions and that all other evidence in the case should be
considered along with the confessions in determining guilt or innocence. We are unable to conclude
that the trial court should have given the requested corpus delicti instruction.
In any event, the appellant’s confessions were sufficiently corroborated in this case. The
appellant told officers that on Saturday, October 11, he stood in the doorway of the victim’s bedroom
and shot the sleeping victim with a sixteen-gauge shotgun. The appellant covered the victim with
a sheet that had been on the floor, picked up the spent shotgun shell, and carried the victim’s pants
to the living room. There, he took money out of the victim’s wallet. He left the shotgun in the
Bean’s Creek area and abandoned the victim’s wallet in a creek in Moore County. Officers found
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the victim’s decomposing body in bed and covered with a clean sheet, and a pair of pants were in
the living room. Officers did not find a spent shotgun shell in the bedroom. They went to the Bean’s
Creek area and located the shotgun and some unused shells, and Lieutenant Warren found the
victim’s wallet in Moore County. Dr. Charles Harlan performed the victim’s autopsy on October
17 and stated that the victim had been shot in the forehead and had been dead about a week, “give
or take a few days,” which would have put his time of death around October 11. The evidence at
trial sufficiently corroborated the appellant’s confessions, and he is not entitled to relief.
E. Prosecutorial Misconduct
Finally, the appellant claims that the prosecutor committed prosecutorial misconduct during
closing arguments by expressing a personal opinion about the appellant’s guilt and by making an
improper comment. The appellant acknowledges that while the prosecutor’s comment, “standing
alone, probably did not rise to the level of a denial of due process,” the comment, along with the
other errors that occurred in this case, denied the appellant his right to a fair trial. The State contends
that the prosecutor’s comments were not improper. We conclude that the appellant is not entitled
to relief.
During the State’s closing argument, the prosecutor told the jury that the appellant had
premeditated killing the victim and had taken the victim’s wallet, money, and truck. The prosecutor
then stated, “Ladies and gentlemen, this man is guilty of what he’s charged with,” and the defense
objected. The following exchange occurred:
THE COURT: All right, it’s argument. I’ll let you -- you
haven’t stepped across the line yet. Go ahead.
[THE STATE]: Tactics, lawyers’ tactics, object in the middle
of a person’s argument and throw them off.
[DEFENSE COUNSEL]: Your Honor, I object to that. That
was –
THE COURT: [General], that’s uncalled for.
The State’s closing argument resumed.
It is well-established that closing argument is an important tool for both parties during a trial;
thus, counsel is generally given wide latitude during closing argument, and the trial court is granted
wide discretion in controlling closing arguments. See State v. Carruthers, 35 S.W.3d 516, 577-78
(Tenn. 2000) (appendix). “Notwithstanding such, arguments must be temperate, based upon the
evidence introduced at trial, relevant to the issues being tried, and not otherwise improper under the
facts or law.” State v. Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App. 2003).
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“In determining whether statements made in closing argument constitute reversible error, it
is necessary to determine whether the statements were improper and, if so, whether the impropriety
affected the verdict.” State v. Pulliam, 950 S.W.2d 360, 367 (Tenn. Crim. App. 1996). In
connection with this issue, we must examine the following factors:
(1) the conduct complained of viewed in context and in light of the
facts and circumstances of the case[;]
(2) the curative measures undertaken by the court and the
prosecution[;]
(3) the intent of the prosecutor in making the statement[;]
(4) the cumulative effect of the improper conduct and any other errors
in the record[; and]
(5) the relative strength or weakness of the case.
Id. at 368 (quoting Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)).
We find nothing inappropriate about the prosecutor’s stating that the appellant was guilty.
Granted, a prosecutor should not express his or her personal opinion about a defendant’s guilt.
Goltz, 111 S.W.3d at 6. However, in our view, the prosecutor was simply reviewing the evidence
against the appellant and stating the State’s position in the case, i.e., that the appellant was guilty of
the crimes charged. Therefore, defense counsel’s objection was improper. The prosecutor’s
comment about defense counsel’s tactics, however, was also improper. See State v. Garner Dwight
Padgett, No. M2003-00542-CCA-R3-CD, 2004 Tenn. Crim. App. LEXIS 938, at *34 (Nashville,
Oct. 21, 2004) (stating that “[t]he prosecution is not permitted to reflect unfavorably upon defense
counsel or the trial tactics employed during the course of the trial”). Nevertheless, given the strength
of the State’s case, we conclude that the State’s comment was harmless. See Tenn. R. Crim. P.
52(a); Tenn. R. App. P. 36(b).
III. Conclusion
Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.
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NORMA McGEE OGLE, JUDGE
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