State of Tennessee v. Troy Lynn Fox ( 2014 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs at Knoxville October 15, 2013
STATE OF TENNESSEE v. TROY LYNN FOX
Appeal from the Criminal Court for Wilson County
No. 09-CR-523 David E. Durham, Judge
No. M2013-00579-CCA-R3-CD - Filed February 28, 2014
The Defendant, Troy Lynn Fox, was convicted of the first degree premeditated murder of his
wife and sentenced to life imprisonment. On appeal, the Defendant raises the following
issues for our review: (1) whether the evidence was sufficient to sustain his conviction; (2)
whether the trial court erred by admitting certain photographs into evidence—one, a
photograph of the murder victim that was taken while she was alive and, two, multiple
photographs of the crime scene and of the victim’s injuries, taken both at the scene and
during the autopsy; (3) whether the trial court erred by failing to conduct a jury-out hearing
prior to the admission of several photographs of the victim taken at the crime scene and by
describing those photographs as “gross” in front of the jury; (4) whether the trial court erred
by requiring the Defendant to cross-examine the victim’s mother during the State’s case-in-
chief rather than allowing the Defendant to recall her as a defense witness; (5) whether the
trial court erred by prohibiting the Defendant from further development of the couple’s
social, family, and marital history; (6) whether the trial court committed reversible error in
its instruction to the jury on the impeachment of a witness; and (7) whether the trial court
demonstrated judicial bias against the Defendant.1 Following our review, we affirm the
judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which C AMILLE R.
M CM ULLEN and J EFFREY S. B IVINS, JJ., joined.
William M. Carter, Gallatin, Tennessee (on appeal); and J. Stephen Mills, Nashville,
Tennessee (at trial), for the appellant, Troy Lynn Fox.
1
For the purposes of clarity and brevity, we have renumbered and combined several of the Defendant’s
issues.
Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Tom
P. Thompson, Jr., District Attorney General; and Brian W. Fuller and Linda D. Walls,
Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
This case arises from the brutal beating and strangulation of the Defendant’s wife
(“the victim”) inside the couple’s Mt. Juliet residence on June 30, 2009. Thereafter, a Wilson
County grand jury returned a two-count indictment against the Defendant, charging him
separately with first-degree premeditated murder and second-degree murder of the victim.
At the outset of the Defendant’s trial on September the 26th through the 28th of 2011, the
State nolled the second-degree murder count, acknowledging that it was a lesser-included
offense of the first-degree premeditated murder count. Trial proceeded on the first-degree
murder charge.
The evidence presented at trial revealed the following facts. In the early morning
hours of June 30, 2009, the Defendant placed a telephone call to 911, requesting emergency
assistance for his forty-seven-year-old wife. At that time, the Defendant and the victim had
two daughters, a five-year-old and a two-week-old, who were both present inside the home.
According to the 911 operator, there was a period of silence “on the front end of [the] call[,]”
which was unusual to her.
Timothy Owens, a firefighter paramedic with Wilson County Emergency
Management, along with his partner, James Copas, responded to the call, arriving at the
home at approximately 6:19 a.m. According to Owens, the Defendant informed them that
he was in the kitchen when he heard a loud noise and thought that his daughter had knocked
something over. The Defendant told Owens that, upon further investigation, he “found his
wife at the bottom of the stairs flopping around” and that he tried to perform CPR on her but
was unable to “get any breaths to go in[.]”
The paramedics found the victim at the bottom of a stairwell coming down from the
house into the garage area. Owens testified that the victim was lying “on the landing, a large
puddle of blood around her, and blood spatter at the bottom of the platform and off to the left
and the right side of the platform on the wall.” He further described that, in addition to the
“very large area” of “solid blood” on the platform, there was three to four feet of blood
spatter on the walls, floor, and a nearby child’s chalkboard. “[G]iven the amount of blood
on the ground, absence of a pulse and respirations, and the number of injuries [the victim]
had, [which included] bruising around the eyes, bruising behind her right ear, and a large
-2-
laceration to the back of skull,” they determined that the she was dead and contacted the
medical examiner.
The Defendant went upstairs to care for the couple’s newborn while the paramedics
were tending to the victim. While Owens was waiting on the medical examiner, he went
upstairs and had a conversation with the Defendant in an effort to gather biographical
information about the victim. Owens described the Defendant’s demeanor during this
conversation: “His demeanor was very -- he was very calm, seemed like nothing was going
on really, just like you would be talking to him on an[y ]other day, I would imagine. He
seemed very detached.”
Another description of the victim’s injuries was given by Detective Chris Hodge of
the Wilson County Sheriff’s Department. In addition to the large cut on the back of the
victim’s head, Det. Hodge observed the following:
She had a[n area of] large swelling and a cut under the right eye. She
had several small cuts just around the facial area, nose, a lot of bruising. She
had a lot of blood around the back of her head, of course, and her hair, her
ears. Her arms had some small scrapes and cuts, and on the legs. Her back
had several scrape marks.
Detective Jeff Johnson of the Wilson County Sheriff’s Department arrived at the scene
about 7:30 a.m. After being briefed on the situation, Det. Johnson approached the
Defendant, and they conversed at the kitchen table. Det. Johnson detailed the conversation
that ensued:
I asked [the Defendant] in just the initial interview with him, I asked
him what had happened, and he stated to me that his wife had been walking
around the house. He didn’t know exactly what she was doing. He was in the
kitchen, he thought, possibly taking one of his vitamins. He heard something
at the stairs leading down to the basement.
He went to the door and found his wife laying at the bottom of the
stairs. He advised me he went downstairs, found her. She was still breathing
but she was jerky, having kind of jerky actions.
....
. . . He then advised me that he opened up a door on his vehicle. He
was planning on loading her into his vehicle to carry her to the hospital. He
then realized that his two small children were still asleep upstairs. He then
called 911. He tried to do CPR on her the best that he could, and he advised
me -- his statement to me was, and I quote, it’s not like --
-3-
....
. . . He made a statement to me and I quote, it wasn’t like doing CPR on
a practice dummy. That was what [the Defendant] had advised me. He then
waited on the ambulance to get there and then once the ambulance got there
that’s pretty much when our statement ended.
The Defendant did not mention to Det. Johnson anything about an argument between
the couple that morning or about any pending divorce proceedings. When asked about the
Defendant’s demeanor during the conversation, Det. Johnson replied, “He really showed no
emotions. Whenever I would ask him a question, he would just kind of look off away from
me and never would make eye contact with me. And his hands were visibly shaking, but
there was no emotion that he showed at all.”
Brody Kane, the lawyer who was representing the victim in the couple’s divorce,
testified about the pending proceedings. He advised his client to delay the divorce until the
baby was born and to stay inside the marital residence. On March 2, 2009, Mr. Kane filed
several documents initiating divorce proceedings against the Defendant—a complaint for
absolute divorce, a proposed temporary parenting plan, a temporary injunction, and a
discovery request. The Defendant was served with the those documents on March 18, 2009.
During the representation, the victim sent Mr. Kane a letter, which included a blog written
by the Defendant, and this blog “scared” the victim according to Mr. Kane. Following the
victim’s death, Mr. Kane provided law enforcement with information regarding the pending
divorce.
Amy McMaster, an employee of Forensic Medical Management Services, performed
an autopsy of the victim on July 1, 2009. Dr. McMaster was recognized as an expert in
forensic pathology without objection, and she testified about the victim’s many injuries to
her head and body, which included “a large gaping laceration” on the back of the victim’s
scalp. This large laceration to the back of her head was inconsistent with a fall and was
likely “from more than on blow to the back of head, either something hitting the head or the
head being repeatedly hit against something else.” Additional lacerations reflected “blunt
trauma to the head[,]” and several of the victim’s injuries were consistent with being punched
according to Dr. McMaster. Dr. McMaster also observed injuries to other parts of the
victim’s body—arms, elbows, back, legs, and feet. When asked if the victim’s injuries were
consistent with a fall down the stairs, Dr. McMaster said,
Not all of the injuries taken together as a constellation. Could one or two or
a few of these injuries be caused from a fall down the stairs, yes. But when all
of the injuries taken together over all of her body, those injuries taken together
-4-
are not consistent with simply a fall down the stairs. There is other trauma
involved.
In addition to the victim’s other injuries, Dr. McMaster also determined that the victim
had been strangled. Dr. McMaster testified that, upon preforming a dissection of the victim’s
neck, she observed the following:
When I did that on [the victim] she had hemorrhages or bleeding in the
muscles in the front of the neck, so they are several layers of muscles deep,
and in those muscles there were hemorrhages that indicates some type of force
applied to the neck. She also had hemorrhage surrounding a small bone in the
neck called the hyoid bone and, again, that indicates some type of constricting
force around the neck.
It could be hands. It could be some other type of object[] that’s used as
a ligature. It could be a foot or a shoe compressing the neck. It just indicates
some constrictive force around the neck that indicates strangulation.
When asked how long it would take to strangle someone, Dr. McMaster responded,
Well, it depends. If someone is unconscious, obviously you could do
it a lot faster than if they were alive and struggling and fighting. I think
probably all things being equal, two people in a struggle, one strangling the
other, it’s going to take minutes in order to make someone unconscious and
eventually dead from strangulation.
In conclusion, Dr. McMaster opined that the victim’s cause of death was “multiple blunt
force injuries and strangulation” and that the manner of death was “homicide.”
Dr. McMaster informed law enforcement of her findings. Thereafter, detectives
obtained a search warrant for the couple’s home. At approximately, 6:00 p.m. on July 1,
2009, they executed that warrant, observing that the steps had been cleaned up, with pieces
of the wall, steps, landing, and carpet gone, and seizing three computers from the home.
Special Agents Brian Harbaugh and Russ Winkler of the Tennessee Bureau of
Investigation (TBI) also interviewed the Defendant that same day, July 1, around 1:00 p.m.
The Defendant was informed that they wanted to speak to him about the victim’s death, that
he had a right to an attorney, and that it was a non-custodial interview, meaning he could
leave at any time. The Defendant first told the agents that he was in the kitchen, when he
heard a “loud bang coming from what the thought to be the stairs.” He described, “[I]t
sounded like maybe someone was coming down the steps too fast.” After checking on the
-5-
baby, he found his wife at the bottom of the stairs, convulsing and lying in a large amount
of blood. “He said he was trying to hold her down, hold her chest down. He said that she
was trying to get up. He said that he could see that there was blood from the back of her
head, there was blood on the stairs, the floor and on her as well.” During this first version,
the Defendant claimed he was holding the victim down so as to not wake the children. He
contended that he went to the truck and intended to take the victim to the hospital, but
remembering that the children were inside, he instead went upstairs and telephoned 911. He
also told the agents that “he had washed his hands” and “changed his shirt” before calling
911. According to Special Agent Harbaugh, the second time the Defendant told the agents
“about initially seeing her and going down to get closer to her, he stated that he shut the door
. . . behind him[.]” Special Agent Harbaugh found this behavior—shutting the door,
changing clothes, and washing hands—“very odd” and inconsistent with a typical response
of someone attempting to render aid to a loved one. According to Special Agent Harbaugh,
the Defendant “was calm” as he relayed this first tale of events.
The Defendant also told Special Agent Harbaugh about a website he had called
“cavertroy or cavetroy.com” devoted to caving or spelunking, where he “had posted several
statements concerning his wife basically saying derogatory things towards her, curse words,
calling her names.” The Defendant said, that after the victim’s death, “he went to that site
and removed those statements and took the site down.”
Special Agent Harbaugh confronted the Defendant with the autopsy findings and his
story changed. He then gave the following version:
[The Defendant] at that point began saying that it was an accident, that
it wasn’t on purpose. We asked him to further explain to us what he’s talking
about. He stated that when he initially ran down the steps that he was -- the
same thing, attempting to hold her down because he said she was trying to get
up.
He said that she was breathing but she wasn’t talking. He explained to
us again that there was a lot of blood, and he said that in an attempt to calm her
down, he was punching her in the face. As he’s stating this, he has his fist
balled up, his right hand just balled up in a fist.
....
. . . And we asked him if he could tell us how many times. He said he
couldn’t tell us exactly how many times, just that it was more than once that
he punched her in the face. He went on to say that after that she was still
moving around, and at that point he had taken her head, again, demonstrating
with his hands, he said that he had taken her head and slammed it off the --
when you come down the step there’s a metal plywood -- I’m sorry, there’s a
-6-
plywood landing that gives you the option to go to the right or the left. It’s
kind of elevated from the concrete floor.
He stated that he had banged her head off the plywood floor several
times and then he had shifted her, which would be to left, and banged her head
off the center block wall several times.
The agents told the Defendant that they believed this version. They asked the
Defendant what brought about these actions, but “he would not tell [them] that.” Det.
Harbaugh stated that he did not recall the Defendant mentioning any other incident involving
the couple’s children during the interview, other than the Defendant’s desire not to wake
them. When pressed for further clarification of how this happened, the Defendant left the
interview and did not sign a written statement. According to Special Agent Harbaugh, during
this second version of events, the Defendant “was upset. He was very upset. He was crying.
He was very emotional. I’d say emotional to angry.”
Special Agent Winkler also described the Defendant’s demeanor during the interview.
According to Special Agent Winkler, during the first version of events, the Defendant was
“[j]ust very calm, no emotion. . . . [H]e just simply looked down that whole time, never
making eye contact with [the agents], just explained this first story without any emotion.”
The Defendant’s demeanor changed during the second version according to Special Agent
Winkler: “[H]e was a little more animated but there was still no -- he didn’t seem to me to
be remorseful, although he said it was an accident, it wasn’t done on purpose. But it just
didn’t seem genuine, his remorse in that.”
TBI Special Agent Nicholas Christian examined the computers seized from the
Defendant’s home and testified as an expert in the area of computer forensics. He retrieved
multiple email correspondence between the Defendant and the victim over a period of some
months, reflecting frustration and dissatisfaction in their relationship, largely due to the
Defendant’s desire for more children, their difficulties during the in vitro fertilization process
to conceive their second child, and the victim’s impression that the Defendant was only
interested in more children and not interested in her. Special Agent Christian also found a
document called “divorce venting,” where the Defendant addressed his frustrations with the
victim who wanted to go skiing while pregnant, their pending divorce, and the proposed
parenting schedule. He wrote,
You want to know what I’ve been going through? Me, a man who has
always wanted kids. . . . trapped which a psycho who has physically abused my
daughter and is trying to sabatage [sic] the child in her womb. And now
SHE’s going to divorce ME and furthermore is trying to force my daughter to
-7-
go 12 days in a row without seeing her father. Then a quick weekend and then
12 more days apart.
I can’t even type what’s in my mind now. I’m not that stupid.
12 years military. I’ve been backing off cliffs on a rope since I was 17.
I have self control, more than she knows, more than she will ever suspect. I
will wait patiently and carefully and choose the time and place of my
vengeance. I am a merciful man but I will show no mercy to the one that seeks
to harm my children or separate me from them.
Don’t take me too seriously. I’m just venting, ‘No baby, thass [sic] jus
[sic] jokes, haa-haa, yeah haa-haa.’ Eddie Murphy.”
In a blog titled “Tired of Holding it in” taken from the Defendant’s website, the Defendant
again expressed his frustration and dissatisfaction with the victim and their relationship,
complaining about the victim’s poor self esteem, her hitting their older daughter in the face,
and other issues relating to her inability to be a good wife and mother. The Defendant’s
website was last accessed on June 30, 2009, at 12:42 p.m. according to Special Agent
Christian.
Lori Reynolds knew the Defendant and the victim from church. After the Defendant
gave Mrs. Reynolds’s husband “a calling card” with the Defendant’s website information on
it, she and her husband went to that site and saw some of the Defendant’s derogatory
references to the victim using “angry-type language.” Ms. Reynolds testified, “There was --
I remember there was an entry that talked about nobody’s going to get in between me and my
kids, nothing can come between me and my kids.” After Ms. Reynolds learned of the
victim’s death, she went to the website but “those blogs, journals” had been removed. Ms.
Reynolds contacted the Mt. Juliet Police Department and told them about the website
postings.
Brenda Shaw, a Servpro employee, was responsible for the cleanup at the couple’s
residence following the victim’s death, performing these services on the afternoon of June
30, 2009. Ms. Shaw described that there “was a pool of blood” on the landing which had to
be cleaned up, “plus cut out some steps.” In addition to the blood on the landing, there was
blood on the railing and the steps and “blood droppings around a vehicle” that stopped at the
passenger-side door according to Ms. Shaw. This scene was bloodier than the approximately
twenty other biohazard scenes Ms. Shaw had cleaned up; those being mostly suicides.
The Defendant presented David Wantland, who examined the stairs at the couple’s
residence at the Defendant’s request. Mr. Wantland, who had designed stairs and railings
since 1973, determined that the couple’s stairs were not uniform in size and that there was
-8-
not an adequate railing as required by the applicable building code. Mr. Wantland opined
that he did not consider the stairs to be safe.
The Defendant then testified on his own behalf. In addition to providing lengthy
background information about himself and the couple’s relationship, he described the weeks
leading up to the victim’s death. He testified about his concerns regarding the victim’s
treatment of their newborn. He also acknowledged that the victim had filed for divorce and
that they were sleeping in separate bedrooms. The Defendant stated that he had filed a
counter complaint for divorce and a parenting plan, wherein he sought joint custody of the
children.
According to the Defendant, on the morning of June 30, 2009, he was discussing
reconciliation with the victim when she “dropped” the baby, stating that the baby was all the
Defendant cared about. The Defendant continued,
I mean, she was literally like laying her down but she dropped her, and then
she turned and she was walking off and I bent over [the baby]. I was bending
over looking at her and she came and pushed me out of the way and was
holding me back. I grabbed her and the door is right there and I just strong
armed her and opened the door. I was thinking I wanted her out of the house.
I didn’t want her in the house with the kids.
According to the Defendant, they were struggling as he was pushing her, and the victim fell
down the steps into the garage. He testified that he went to help her, and she slapped him the
face. According to the Defendant, he “just lost it.” The Defendant admitted to punching the
victim repeatedly in the face and head and bashing the victim’s head against the landing of
the stairs. He claimed he “meant to hurt her[,]” but he did not “mean to kill her[.]” He
further stated that he “regret[ted] killing her[.]”
Following the conclusion of proof, the jury returned a verdict of guilty as charged, and
the trial court imposed a sentence of life imprisonment. This appeal followed.
ANALYSIS
On appeal, the Defendant raises the following issues for our review: (1) whether the
evidence was sufficient to sustain his conviction; (2) whether the trial court erred by
admitting certain photographs into evidence—one, a photograph of the murder victim that
was taken while she was alive and, two, multiple photographs of the crime scene and of the
victim’s injuries, taken both at the scene and during the autopsy; (3) whether the trial court
erred by failing to conduct a jury-out hearing prior to the admission of several photographs
-9-
of the victim taken at the crime scene and by describing those photographs as “gross” in front
of the jury; (4) whether the trial court erred by requiring the Defendant to cross-examine the
victim’s mother during the State’s case-in-chief rather than allowing the Defendant to recall
her as a defense witness; (5) whether the trial court erred by prohibiting the Defendant from
further development of the couple’s social, family, and marital history; (6) whether the trial
court committed reversible error in its instruction to the jury on the impeachment of a
witness; and (7) whether the trial court demonstrated judicial bias against the Defendant. We
address each in turn.
I. Sufficiency of the Evidence
The Defendant challenges the sufficiency of the evidence supporting his conviction
for first degree premeditated murder. After citing the law relative to the standard of appellate
review for sufficiency of the evidence, the Defendant makes the following one-sentence
argument attacking his conviction:
Relying upon all of the foregoing argument, [the Defendant] contends
that the evidence presented during his trial failed to prove beyond a reasonable
doubt that at the time of the offense he possessed the necessary intent or
premeditation to sustain a conviction for first degree murder, and that his
conviction should be reversed.
The State responds that the evidence presented at trial sufficiently established the element
of premeditation, noting the Defendant’s prior internet writings showing his ill-will toward
the victim; the blood spatter evidence and the evidence of multiple blunt force injuries to the
victim, suggesting the attack was sustained for some period of time; and the evidence of
manual strangulation, an act that took minutes to accomplish before death occurred.
Initially, we observe that we could deem this issue waived for the Defendant’s failure
to adequately brief his sufficiency argument. See Tenn. Ct. Crim. App. R. 10(b) (“Issues
which are not supported by argument, citation to authorities, or appropriate references to the
record will be treated as waived in this court.”). Nonetheless, the State does not argue waiver
of the issue, and given the severity of the crime and because the evidence of premeditation
is relevant to other issues in this appeal, we will address whether the evidence was sufficient
to establish the premeditated and intentional nature of the killing.
An appellate court’s standard of review when a defendant questions the sufficiency
of the evidence on appeal is “whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). This
court does not reweigh the evidence; rather, it presumes that the jury has resolved all
-10-
conflicts in the testimony and drawn all reasonable inferences from the evidence in favor of
the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in
testimony, and the weight and value to be given to evidence were resolved by the jury. See
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury’s verdict.” Id.; State v. Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982). “This [standard] applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of [both] direct and circumstantial evidence.”
State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). The standard of
proof is the same, whether the evidence is direct or circumstantial. State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011). Likewise, appellate review of the convicting evidence “is
the same whether the conviction is based upon direct or circumstantial evidence.” Id.
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The duty of this court “on
appeal of a conviction is not to contemplate all plausible inferences in the [d]efendant’s
favor, but to draw all reasonable inferences from the evidence in favor of the State.” State
v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).
First degree murder, in this instance, is defined as “[a] premeditated and intentional
killing of another.” Tenn. Code Ann. § 39-13-202(a)(1). A person acts intentionally “when
it is the person’s conscious objective or desire to engage in the conduct or cause the result.”
Tenn. Code Ann. § 39-11-302(a).
“[P]remeditation” is an act done after the exercise of reflection and judgment.
“Premeditation” means that the intent to kill must have been formed prior to
the act itself. It is not necessary that the purpose to kill pre-exist in the mind
of the accused for any definite period of time.
Tenn. Code Ann. § 39-13-202(d).
The element of premeditation is a factual question to be decided by a jury from all the
circumstances surrounding the killing. State v. Davidson, 121 S.W.3d 600, 614 (Tenn.
2003). Although a jury may not engage in speculation, it may infer premeditation from the
manner and circumstances of the killing. Bland, 958 S.W.2d at 660. Our supreme court has
held that factors demonstrating the existence of premeditation include, but are not limited to,
the following: declarations of the intent to kill, procurement of a weapon, the use of a deadly
weapon upon an unarmed victim, the fact that the killing was particularly cruel, infliction of
multiple wounds, the making of preparations before the killing for the purpose of concealing
-11-
the crime, destruction or secretion of evidence, and calmness immediately after the killing.
State v. Jackson, 173 S.W.3d 401, 409 (Tenn. 2005); State v. Nichols, 24 S.W.3d 297, 302
(Tenn. 2000). Additional factors cited by this court from which a jury may infer
premeditation include lack of provocation by the victim and the defendant’s failure to render
aid to the victim. See State v. Lewis, 36 S.W.3d 88, 96 (Tenn. Crim. App. 2000). Further,
“[e]stablishment of a motive for the killing is a factor from which the jury may infer
premeditation.” State v. Leach, 148 S.W.3d 42, 54 (Tenn. 2004).
The Defendant does not deny that he caused his wife’s death but argues that he lacked
any intent to kill her. Viewed in a light most favorable to the State, we conclude that the
evidence presented at trial was sufficient for a reasonable jury to find the Defendant guilty
of the premeditated first degree murder of his wife. The evidence reflects that the Defendant
and the victim were involved in a contentious divorce, that the Defendant was obsessed with
his children, and that he feared that the victim might gain custody of them. The Defendant
made veiled threats against the victim in his internet correspondence. The autopsy results
indicated that the victim’s cause of death was “multiple blunt force injuries and
strangulation” and that the manner of death was homicide. The Defendant admitted that he
punched the victim with his fists multiple times in the face and head, and he also recalled
bashing her head against the landing at the base of the stairs. There was a significant amount
of blood and blood spatter at the crime scene, and there was no evidence that the victim was
armed. Importantly, in addition to severely beating the victim, the Defendant strangled her
death, which the medical examiner stated would “take minutes” to accomplish and that
“during that course of minutes . . . [a person] would have to apply consistent force upon that
person’s neck in order to strangle them to death[.]” According to officers and emergency
personnel at the scene, the Defendant appeared relatively calm after the incident. By his own
admission, the Defendant went upstairs and washed his hands and changed his shirt before
calling 911. Immediately following the killing, the Defendant removed his derogatory
comments about the victim from his website. Given this evidence, we conclude that it was
reasonable for the jury to find that such actions evinced a premeditated intent to kill the
victim. See, e.g., State v. Hill, 333 S.W.3d 106, 133-34 (Tenn. Crim. App. 2010)
(concluding that evidence was sufficient to support a first-degree premeditated murder
conviction where the defendant beat the unarmed victim with the lid to her toilet tank;
defendant admitted carrying the lid from bathroom into the living room in preparation for the
argument with the victim; the defendant inflicted multiple, vicious blows upon the unarmed
and prone victim that crushed not only her skull but her brain itself; evidence indicated that
the victim was still alive when the defendant subsequently placed dog leash around her neck,
with strangulation a contributing cause of death; the defendant coolly lied about his presence
at the victim’s home just after killing; and the defendant went to great lengths to conceal
killing).
-12-
II. Photographs
The Defendant next makes numerous challenges to the admission of certain
photographs at trial. His issues with these photographs are both substantive and procedural
and in nature.
The admissibility of photographs is governed by Tennessee Rules of Evidence 401
and 403. See State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978). Under these rules, the trial
court must determine, first, whether the photograph is relevant. Tenn. R. Evid. 401; Banks,
564 S.W.2d at 949. Next, the trial court must determine whether the probative value of the
photograph is substantially outweighed by the danger of unfair prejudice. Tenn. R. Evid.
403; Banks, 564 S.W.2d at 950-51. The term “unfair prejudice” has been defined as “[a]n
undue tendency to suggest decision on an improper basis, commonly, though not necessarily,
an emotional one.” Id. Photographs offered by the State must be relevant to prove some part
of its case and must not be admitted solely to inflame the jury and prejudice it against the
defendant. Id. Whether to admit the photographs rests within the sound discretion of the
trial court and will not be reversed absent a clear showing of an abuse of that discretion. Id.
at 949; see also State v. Dickerson, 885 S.W.2d 90, 92 (Tenn. Crim. App. 1993); State v.
Allen, 692 S.W.2d 651, 654 (Tenn. Crim. App. 1985).
A. “Life Photo”
The Defendant argues that the trial court erred by allowing the State to introduce into
evidence a “life photo” of the victim. The first witness at trial was Marjorie Allen, the
victim’s mother, through whom the State introduced a photograph of the victim taken shortly
before her death. The Defendant acknowledges that he made no contemporaneous objection
at trial, raising the issue for the first time at the motion for new trial. See Tenn. Crim. App.
36(a) (“Nothing in this rule shall be construed as requiring relief 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.”); see also State v. Killebrew, 760 S.W.2d
228, 235 (Tenn. Crim. App. 1988) (waiver applies when the defendant fails to make a
contemporaneous objection). While acknowledging the waiver at the motion for new trial
hearing, counsel2 stated he was attempting to preserve the issue for purposes of appeal,
noting that the issue of admissibility of this type of photograph was pending disposition
before the Tennessee Supreme Court in State v. Prince Adams, No. W2009-01492-CCA-R3-
CD, 2011 WL 4375332, at *5-6 (Tenn. Crim. App. Sept. 21, 2011), perm. app. granted,
(Tenn. Feb. 15, 2012).
On appeal, the Defendant acknowledges that our supreme court has issued its opinion
in State v. Adams, 405 S.W.3d 641 (Tenn. 2013), and the holding therein does not provide
2
The Defendant was represented by a different attorney at the motion for new trial hearing.
-13-
him with relief. As such, he concedes that his issue is waived for failure to make a
contemporaneous objection at trial. We agree that the issue is waived and that Adams does
not provide the Defendant with plain error relief because review of the issue is not necessary
to do substantial justice as the error would be deemed harmless. See 405 S.W.3d at 656-68
(concluding that it was error for trial court to admit the portrait-style photograph of murder
victim for the purpose of showing the existence of a life-in-being, but the error was harmless
because it had no effect on the results of the trial).
B. Crime Scene Photographs
As a procedural issue regarding the admission of photographs, the Defendant argues
that the trial court erred by failing to conduct a jury-out hearing prior to the admission of
several photographs of the victim taken at the crime scene and by describing those
photographs as “gross” in front of the jury. The State responds that the Defendant failed to
make a contemporaneous objection to the trial court’s consideration of the photographs in
the presence of the jury, thus, waiving the issue. Waiver notwithstanding, the State submits
that the Defendant has failed to show that the trial court violated any rule or acted in such a
way as to prejudice the jury.
At trial, Timothy Owens, a firefighter paramedic with Wilson County Emergency
Management, testified that he responded to the call at the couple’s residence on June 30,
2009. Owens provided details to the jury concerning his observations of the victim’s body
when he first arrived on the scene, describing the victim’s injuries, the amount of blood
present, and the blood spatter. He verified the authenticity of several photographs depicting
his testimony which were admitted into evidence—one, a photograph of the residence; the
next, a photograph of the garage leading to the stairwell; the next, a photograph of the
victim’s entire body as discovered in the stairwell; and the next two, pictures of the blood
spatter present at the scene.
The State next sought to introduce three close-up photographs of the victim’s injuries
through Owens. The State showed Owens the first two photographs and asked him to
describe their contents. Owens replied, “That’s [the victim] with the bruising around her
eyes, puddle of blood on the floor. And this picture here you can see mild bruising behind
the ear, right ear.” The State asked that those be entered into evidence. The following
exchange then occurred:
[DEFENSE COUNSEL]: Your Honor, I object to those pictures.
THE COURT: State your objection, [defense counsel].
[DEFENSE COUNSEL]: Your Honor, I don’t believe they would serve any
purpose other than shocking the jury.
-14-
THE COURT: Pass them up here and let me look at them, please. General,
what is your response?
[PROSECUTOR]: Your Honor, these photos are obviously needed to show
the jury how [the victim] was found that day. This goes to his testimony, the
injuries that he saw and the amount of blood, and the injuries that he’s
described, Your Honor. I think the jury needs the full picture. This is part of
the picture.
THE COURT: [Defense counsel], of course in a charge such as this, the State
does have a certain burden. That burden, Number 1, they must prove that the
crime was intentional. It’s a heavy burden. Also they must prove
premeditation which is a very heavy burden,
I do find that these photographs both have probative value which
outweighs their value as being overly for lack of a better word, gross, but I do
believe the probative value outweighs the prejudicial effect because of the
nature of the charge and what the State does need to prove, so I’m going to
overrule your objection.
Nothing in the transcript reflects that this colloquy occurred at the bench or out of the hearing
of the jury.
The two photographs—one of the victim facing to the right and the other of the victim
frontal facing—were then marked and admitted as exhibits to Owens’s testimony. Owens
then testified about a third photograph of the victim, which showed a laceration to the back
of her head, and this photograph was admitted into evidence without objection.
Crime scene photographs of a victim tend to be prejudicial by nature, but this fact
does not make them excludable per se. Adams, 405 S.W.3d at 658 (citing State v. Jordan,
325 S.W.3d 1, 86 (Tenn. 2010)). Moreover, our supreme court has permitted “photographs
of [a victim’s body] . . . in murder prosecutions if they are relevant to the issues on trial,
notwithstanding their gruesome and horrifying character.” Id. (quoting Banks, 564 S.W.2d
at 950-51). The trial court here found that the photographs were relevant to the issue of the
Defendant’s premeditation and intent and that their probative value outweighed any
gruesome or horrifying character. That the trial court described the photographs as gross was
simply an acknowledgment of their character, a fact which cannot be denied. The trial
court’s comments addressed the ruling it was required to make under the Rules of Evidence
before admitting the photographs into evidence, i.e., whether the probative value of the two
photographs was substantially outweighed by their danger of unfair prejudice to the
Defendant. See Tenn. R. Evid. 403. The trial court cannot be said to have abused its
discretion by admitting the pictures into evidence.
-15-
The Defendant’s main issue with these crime scene photographs concerns the fact that
no hearing was held outside of the jury’s presence on their admissibility and that the jury was
prejudiced by hearing the trial court’s comments. The State correctly notes that nothing in
Rule 403 specifically requires that a jury-out hearing be held. We agree with the Defendant
that a better practice is to have a hearing outside the presence of the jury, as acknowledged
by the trial court at the motion for new trial hearing.3 However, we also agree with the State
that responsibility for the error lies with defense counsel who failed to make a
contemporaneous objection. See State v. Ernest Gentry Burton, No. M2008-00431-CCA
-R3-CD, 2009 WL 2382284, at *14 (Tenn. Crim. App. Aug. 3, 2009) (holding that defendant
was not entitled to relief when trial court ruled on the admissibility of a State’s witness’s
prior inconsistent statement in the presence of the jury when defense counsel made no
request otherwise). If defense counsel chooses to argue in front of the jury that the
photographs are inadmissible due to their “shocking” nature, he must surely be aware that
the trial court may disagree, also in the presence of the jury. See id. We conclude that the
trial court did not err when it made the aforementioned comments.
We further agree with the State that any error in this regard is harmless as the evidence
was properly held to be admissible. See Bolton v. State, 591 S.W.2d 446, 449 (Tenn. Crim.
App. 1979) (trial court permitted introduction of shotgun prior to ruling on its admissibility;
and although the better practice is to display and tender the evidence outside of the jury’s
presence if in doubt, this court found no error under those circumstances because the
evidence was later properly admitted). Accordingly, the Defendant is not entitled to relief
on this issue.
C. Autopsy Photographs
Next, the Defendant contends that the trial court erred by admitting into evidence
multiple photographs of the victim’s injuries taken by the medical examiner, Dr. Amy
McMaster, during the autopsy. The Defendant submits that prior to the admission of these
photographs, the State had introduced
nineteen (19) photographs showing the injuries to the victim and/or the crime
scene, one (1) autopsy report, and one (1) diagram depicting the various
injuries to the victim. In light of the photographs and documentary evidence
3
The trial court judge also noted at the motion for new trial hearing that his normal practice was to hold a
jury-out hearing on the admissibility of photographs, making the following statement:
I just cannot recall ever having a hearing on specific pieces of evidence that were
objectionable until I’ve had an opportunity to look at it, and I look at it without the jury
sitting there, unless it was done here at the bench with my microphone turned off where the
jury is unaware of it.
-16-
introduced prior to Dr. McMaster’s testimony, the probative value of the
photographic evidence objected to by [the Defendant] was low, and the danger
of unfair prejudice to [the Defendant] was high, resulting in error.
The State first notes that the trial court considered each photograph individually, asking Dr.
McMaster in each instant why the photograph was necessary to explain her testimony, prior
to allowing the photographs to be admitted. The State then argues that the photographs
established that the victim suffered a sustained string of injuries over her body, showing that
the Defendant acted with premeditation and intent, and that the photographs are not overly
inflammatory. Accordingly, the State contends that the trial court did not abuse its discretion
in admitting the various photographs.
In the present case, the trial court admitted seventeen photographs of the victim at the
autopsy over the Defendant’s objection, in addition to the diagram prepared by Dr. McMaster
and her autopsy report. The trial court first reviewed each photograph. Following this
review, the trial court found nine of the photographs were admissible, finding that they were
not “particularly inflammatory,” and Dr. McMaster responded affirmatively to the trial
court’s questions that those photographs were needed to explain her diagnosis. She did not
provide specifics regarding this set of photographs. Regarding the remaining eight
photographs, the trial court found that those were likewise relevant but were “of a different
character of the body[.]” The trial court then asked Dr. McMaster to review each of those
eight photographs and specifically address why that photograph was necessary to explain her
diagnosis. Following this colloquy between Dr. McMaster and the trial court, the trial court
asked for the prosecutor’s response to defense counsel’s objection to each of these eight
photographs, and the prosecutor argued that each photograph depicted the Defendant’s intent.
The trial court ruled on the admissibility of these eight photographs as follows:
Well, you know, we all know, all the evidence that’s presented in any
criminal case by the prosecution is prejudicial. It’s designed to be. It all goes
to develop and show the State’s theory of what happened in a particular
instance.
Of course the State’s theory in this particular case is that the victim
suffered from multiple -- a beating and the slamming of the head down a
staircase, and the fact the fall down the staircase in itself was not accidental.
Now, I think I believe I mentioned this to the jury during voir dire,
there’s some stuff you just can’t sterilize. . . .
I don’t think there’s any question in any type of homicide case that
when you’re describing the victim’s body, photographs are the best evidence.
There’s no question. Of course, it still raises the issue, well, are these
photographs -- does their prejudicial value outweigh the relevance.
-17-
In other words, is there a way to explain to the jury, which would be
just as effective as the pictures themselves and letting the jury know exactly
what is alleged to have happened on June 30, 2009. Now, of course the
photographs I’ve already admitted into evidence previously, I don’t believe are
that inflammatory.
As I stated earlier, I think the photographs I’ve discussed with Dr.
McMaster, they’re not as pleasant to look at, but first degree murder is not a
pleasant situation. The State does, as stated earlier, has a very heavy burden
in this case.
Number 1, they must prove that this killing was intentional. They must
prove that it was done with premeditation. In other words, that [the
Defendant] thought about it before committing the act, even if for just a brief
period of time. And there’s a difference between looking at injuries on a piece
of paper and looking at those actual injuries.
. . . There’s just no way to sanitize these cases without taking from the
trier of fact, which in this case is the jury, the true ability to determine what
happened on that particular day. There’s just no other way to do it.
So, looking at the other photographs, the ones that I’ve discussed with
Dr. McMaster, I do specifically find that their relevance, in order to explain
premeditation, in order to explain intent, that the relevance does outweigh the
prejudicial value in this particular case because of the heavy burden placed
upon the prosecution in order to prove those particular elements.
So, I’m going to admit all the photographs which have been submitted
....
Autopsy photographs must never be used “solely to inflame the jury and prejudice
them against the defendant” and must be relevant to prove some material aspect of the case.
Banks, 564 S.W.2d at 951. Again, our supreme court has permitted “photographs of [a
victim’s body] . . . in murder prosecutions if they are relevant to the issues on trial,
notwithstanding their gruesome and horrifying character.” Adams, 405 S.W.3d at 658 Id.
(quoting Banks, 564 S.W.2d at 950-51). Moreover, this court has held that “photographs are
not necessarily rendered inadmissible because they are cumulative of other evidence or
because descriptive words could be used.” State v. Derek Williamson, M2010-01067-CCA-
R3-CD, 2011 WL 3557827, at *9 (Tenn. Crim. App. Aug. 12, 2011) (citing Collins v. State,
506 S.W.2d 179, 185 (Tenn. Crim. App. 1973)).
The Defendant claimed that the killing was not planned and that he snapped following
the victim’s actions towards their newborn and the stressors of the divorce. The photographs
were highly probative of the nature of the victim’s injuries, the repeated number of the
injuries, and the location of the wounds. The State was required to prove the element of
-18-
premeditation. Among the factors probative of premeditation are the particular cruelty of the
killing and infliction of multiple wounds. Jackson, 173 S.W.3d at 409; Nichols, 24 S.W.3d
at 302. The autopsy photographs were highly probative of these circumstantial indicators of
premeditation. In sum, the State and the Defendant presented opposing theories regarding
the Defendant’s alleged intent, and the photographs had significant probative value in
helping the jury determine what actually happened in the couple’s residence that day. In
addition, while some of the photographs in question were graphic, they were not particularly
gruesome, as the victim’s body had been cleaned. We cannot conclude that the trial court
abused its discretion in determining that the autopsy photographs were relevant to issues
presented at trial and that their probative value was not substantially outweighed by the
danger of unfair prejudice. See, e.g., State v. Andre Harris, No. W2011-02440-CCA-R3-CD,
2013 WL 2424115, at *10-11 (Tenn. Crim. App. June 5, 2013) (finding no abuse of
discretion in the trial court’s admission of twenty autopsy photographs).
III. Presentation of Victim’s Mother
The Defendant contends that the trial court committed error by denying his request
to recall the victim’s mother as a defense witness. The State responds that the Defendant
offers no argument to suggest that he was prejudiced by the trial court’s actions in any way
and, therefore, has not shown entitlement to relief.
As noted above, the victim’s mother was the State’s first witness, and she provided
the jury with biographical information about the victim. After direct examination of the
victim’s mother was completed, defense counsel stated, “Your Honor, I have no questions
for this witness at this time, however, I have her on my witness list. I’ll be calling her as part
of my case.” A bench conference then ensued:
THE COURT: [Defense counsel], I don’t believe in keeping family members
out unless you’ve got a very, very good reason. Why would you save her for
rebuttal and not use her now on cross-examination when you have the right to
use leading questions? What would you expect to ask her as your witness that
you can’t ask her now?
[DEFENSE COUNSEL]: I just was anticipating that we’re going to go over
her testimony in further detail.
THE COURT: Well, you do it now on cross, because I’m not going to let a
family member sit outside just on the chance you might use her. That’s not
proper. But now if you have some relevant questions you’d like to ask, then
you need to ask them now, otherwise I’m going to let her remain in the
courtroom.
[DEFENSE COUNSEL]: Yes, sir.
-19-
Defense counsel then questioned the victim’s mother about her knowledge of her daughter’s
acting career. Once questioning was completed, the victim’s mother was allowed to remain
in the courtroom. No formal objection was lodged; the Defendant never attempted to recall
the victim’s mother; and the issue was not raised until the motion for new trial. In discussing
the issue at the motion for new trial, counsel agreed with court that “the order of witnesses
[was] a prerogative of the trial judge.” As additional grounds for denying relief, the trial
court noted in its ruling: “[Defense counsel] still had the opportunity to recall this witness,
but had he examined the witness or did a cross-examination, he would have been given more
leeway than as his own witness because he could have asked leading questions and gone into
other material.”
On appeal, the Defendant cites to no other law than providing the standard of review
for such issues. After summarizing the procedural history of the issue, he simply argues “the
trial court’s refusal to allow his attorney to recall the witness in [the Defendant’s] defense
was an abuse of the court’s discretion and therefore constitutes error.” The State correctly
notes that the Defendant makes no real argument as to how he was affected by the alleged
error. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument,
citation to authorities, or appropriate references to the record will be treated as waived in this
court.”)
Nonetheless, it is well-settled that “the propriety, scope, manner and control of the
examination of witnesses is a matter within the discretion of the trial judge, subject to review
for abuse of discretion.” State v. James, 315 S.W.3d 440, 460 (Tenn. 2010) (citations
omitted); see also State v. Barnard, 899 S.W.2d 617, 624 (Tenn. Crim. App. 1994). The trial
judge is vested with authority to determine the order in which witnesses may be examined
and the time at which the examination will occur. State v. Wiseman, 643 S.W.2d 354, 366
(Tenn. Crim. App. 1982) (citing 98 C.J.S. Witnesses § 317, p. 12). The trial court’s exercise
of discretion may not be reversed unless the court “applied an incorrect legal standard, or
reached a decision which is against logic or reasoning that caused an injustice to the party
complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn.1997). Clearly, family members
of a murder victim have an interest in being present during the trial of the alleged murderer.
See T ENN. C ONST. art. I, section 35; Tenn. Code Ann. §§ 40-38-301, -302 (Victim’s Bill of
Rights) (definition of victim includes parent of deceased victim). The trial court inquired of
defense counsel if he had a good reason for waiting to call the victim’s mother as a defense
witness. The Defendant was unable to provide a reason other than “we’re going to go over
her testimony in further detail.” As an additional benefit to the Defendant, he was allowed
to ask leading questions on cross-examination of the witness. The Defendant has failed to
demonstrate that the trial court abused its discretion in denying his request to reserve his
examination of the victim’s mother until the presentation of his defense. For these reasons,
the Defendant is entitled to no relief on this issue.
-20-
IV. Further Evidence of Couple’s History
As his next assignment of error, the Defendant argues that “the trial court erred in not
allowing [him] to develop [the couple’s] social, family and marital history during periods of
time prior to the morning of the victim’s death.” He submits that this testimony would have
provided “evidence of his lack of intent or premeditation in the death of his wife, and the trial
court’s refusal to allow such evidence constitutes reversible error.” The State provides an
examination of the record and notes that the trial court did allow the Defendant “some
leeway” in describing the history of the marriage and that he was able to provide much of this
testimony, just not all that he desired. Moreover, the State continues that the Defendant
“fails to state exactly what more he might have offered the court regarding this history which
would have been relevant to the issue of premeditation.” Finally, the State argues that the
Defendant has failed to state a proper basis for relief because he “fails to support his claim
with any citation to case law, rule or statute, or to even explain how any more information
about his social, family or marital history would have been helpful to a determination of the
facts.”
The Defendant testified in his own defense. At the outset of his testimony, he
provided extensive biographical details about his family history and upbringing, his
education and employment history, his military career, his first marriage and dating history,
and his hobbies. He also discussed his desire for children and how he met the victim in 2002
on a ski trip. He then talked about the early history of the relationship, detailing their
courtship. When the Defendant began to discuss their sexual relations and his previous
contraction of a sexually transmitted disease, the State objected on relevancy grounds: “Now
there’s some background that needs to be laid, but this is kind of extensive.” Defense
counsel responded, “I think the relevance here, this couple’s history is very much relevant
to the problems that arose in the relationship that led to us being here.” The trial court ruled,
Well, [defense counsel], I do agree. I think that the couple’s history,
particularly during the event that this alleged to have happened -- we’ve just
now got that far. Let’s kind of move on and get to the meat of this, and I’m
going to give you some leeway but let’s kind of move to what we’re here
about. Let’s talk about that.
The Defendant continued his testimony, providing details about his children, his age
and the victim’s age, the victim’s first pregnancy, his intentions to have children and his
discussions with the victim in that regard, and the victim’s acting career. When the
Defendant was asked “What type of actress are you referring to?”, the State again objected
to the relevance of the testimony. After defense counsel’s argument, the trial court sustained
the objection with regard to that question and gave the following admonishment to defense
counsel:
-21-
I’ve given you a lot of leeway but so far all your questions have been open
ended which has allowed [the Defendant] to testify open ended. I’m going to
sustain the [State’s] objection at this point. You need to ask questions which
are relevant to why we’re here today. These open ended questions are just not
getting us there, okay. So, I’m going to sustain the objection this time.
Defense counsel then inquired about the couple’s difficulties during this early period
of the marriage, which immediately drew another relevancy objection. Again, the trial court
sustained the objection, concluding,
2003, I believe is a little bit too far removed unless you talk about later events,
closer to the event as to why we’re here. And then give you an opportunity to
maybe tie them together, but I’m not going to let you go through a year by year
history with [the Defendant]. Let’s get to why we’re here. And like I say, if
you can work backwards from that and ask relevant questions which will tie
into the events around this particular date, I’ll let you ask them. But at this
point, I’m going to sustain them, and let’s get closer to the events of why we’re
here today.
The Defendant then began to provide details regarding the events leading up to June
30, 2009, testifying about the pending divorce, custody issues, alleged child abuse by the
victim, the couple’s living arrangements, and care for the couple’s newborn. The Defendant
was asked his opinion about the victim’s care of the newborn, which drew a speculation
objection. The trial court ruled that the Defendant could relay his own observations of the
victim and the child but that it would not be allowed to “go real far.” The Defendant then
relayed his observations for the jury.
Questioning turned to the Defendant’s internet writings. When asked about his
motives behind the writings, he stated that during the victim’s first divorce, she withdrew and
had a nervous breakdown. This response again drew an objection, which the trial court
sustained on hearsay grounds, and the trial court again admonished, “Let’s kind of get to the
end of it. Let’s get to the end of it.” The Defendant then stated that the purpose of the
writings was to scare the victim.
The Defendant continued his explanation of the writings. When asked about his
statements that he was a patient man and that he would exact vengeance, the Defendant
responded with details about the injunction in place during the divorce and how the victim
would move their belongings around despite this order. The State again lodged a relevancy
objection, to which the trial court responded, “[Defense counsel], I’ve given you a lot of
leeway, a lot of leeway. I’ve asked you two or three times already. You’ve asked some
-22-
relevant questions, but you[’ve] gotten some very irrelevant answers. Let’s try to keep it on
that line.”
Although the Defendant details his testimony in the trial court and the various
objections lodged by the State in his appellate brief, the Defendant does not provide this
court with any citation to case law, rule, or statute on how these rulings of the trial court were
in error. He notes that these “[d]ecisions regarding the admission or exclusion of evidence
are entrusted to the trial court’s discretion” and then provides the standard of review. He
cites to two cases for the standard of review—one of those cases provides the standard for
hearsay objections and the other for relevancy issues. This is the extent of his citations to
legal authorities. The Defendant makes only a blanket statement that his additional testimony
on these subjects would have provided “evidence of his lack of intent or premeditation in the
death of his wife” but provides no further explanation. We agree with the State that the
Defendant has waived review of the issue for failing to state a proper basis for relief. See
Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument, citation to
authorities, or appropriate references to the record will be treated as waived in this court.”)
Moreover, the Defendant never made an offer of proof of what additional information he
might have offered regarding the couple’s history that would have been relevant to the issue
of premeditation. See Tenn. R. App. P. 36(a).
He does seem to suggest that the trial court limited his presentation of this evidence
because it was not relevant to any issue at trial. At the motion for new trial hearing, the trial
court found that the previous rulings were proper, reasoning, “The [c]ourt felt then and the
[c]ourt feels now that much of even what the [c]ourt did allow was totally irrelevant, but I
gave the opportunity to the [D]efendant to get to the point and a point was never reached
until I did sustain the State’s objection.” The trial court allowed the Defendant to provide
an abundance of testimony on his background and on his history with the victim, just not to
the Defendant’s complete satisfaction. No abuse of discretion occurred entitling the
Defendant to relief.
V. Jury Instruction on Impeachment of a Witness
The Defendant argues that the trial court committed reversible error in its instruction
to the jury on the impeachment of a witness. A defendant has a “constitutional right to a
correct and complete charge of the law.” State v. Litton, 161 S.W.3d 447, 458 (Tenn. Crim.
App. 2004) (quoting State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990), superseded by statute
on other grounds as stated in State v. Reid, 91 S.W.3d 247, 291 (Tenn. 2002)). When
reviewing challenged jury instructions, we must look at “the charge as a whole in
determining whether prejudicial error has been committed.” In re Estate of Elam, 738
S.W.2d 169, 174 (Tenn. 1987) (citation omitted); see also State v. Phipps, 883 S.W.2d 138,
142 (Tenn. Crim. App. 1994). “A charge should be considered prejudicially erroneous if it
-23-
fails to fairly submit the legal issues or if it misleads the jury as to the applicable law.” State
v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997) (citing State v. Forbes, 918 S.W .2d 431, 447
(Tenn. Crim. App. 1995); Graham v. State, 547 S.W.2d 531 (Tenn. 1977)). Because
questions regarding the propriety of jury instructions are a mixed question of law and fact,
the standard of review is de novo with no presumption of correctness. State v. Smiley, 38
S.W.3d 521, 524 (Tenn. 2001).
In the present case, the trial court issued the following instruction on the impeachment
of a witnesses:
A witness may be impeached by proving that he or she has made some
material statements out of court which are at variance with his or her evidence
on the witness stand. However, proof of such prior inconsistent statements
may be considered by you only for the purpose of testing the witness’s
credibility and not as substantial evidence of the truth of the matter asserted in
such statements.
Further, a witness may be impeached by a careful cross-examination
involving the witness in contradictory, unreasonable and improbable
statements. However, immaterial discrepancies or differences in the
statements of witnesses do not affect their credibility unless it should plainly
appear that some witness has willfully testified falsely.
When a witness is thus impeached the jury has to disregard his or her
evidence and treat it as untrue except where it is corroborated by other credible
testimony or by the facts and circumstances proved on the trial.
The instruction that should have been given was that, “[w]hen a witness is thus impeached,
the jury has the right to disregard his or her evidence and treat it as untrue . . . . ” See
T.P.I.—Crim. 42.06 (Impeachment of witness).
We must agree with the parties that the instruction as given was in error.4 Thus, our
analysis of this issue will be limited to whether the Defendant is entitled to reversal of his
conviction and a new trial based on the erroneous jury instruction. The Defendant submits
that the erroneous instruction “disturbed the integrity of the jury as a fact-finding body[,]”
removing from the jury its “right” to determine the Defendant’s credibility, and instead
instructing the jury to per se disregard the Defendant’s testimony because he had been
impeached. Therefore, the Defendant argues that this error constitutes a “structural
4
We note that the trial court made no challenge to the court reporter’s transcription of the jury charge. We
also observe that the word “substantial” is used in the instruction as transcribed and that the correct word
from the pattern instruction is “substantive.”
-24-
constitutional error,” not amenable to harmless error review, which requires automatic
reversal. The States argues that the error “did not deprive the [D]efendant of his right to a
jury trial or to constitutional due process, and is subject to harmless error review.”
Identifying the proper standard is important because the standards for evaluating the
harmfulness of non-constitutional error and constitutional error differ markedly. State v.
Climer, 400 S.W.3d 507, 569-70 n.18 (Tenn. 2013). In conducting harmless error analysis,
our supreme court has identified three categories of error: (1) structural constitutional error;
(2) non-structural constitutional error; and (3) non-constitutional error. State v. Rodriguez,
254 S.W.3d 361, 371 (Tenn. 2008); see also Climer, 400 S.W.3d at 569. We find guidance
from this court’s opinion in State v. Paul Wallace Dinwiddie, Jr., No.
E2009-01752-CCA-R3-CD, 2010 WL 2889098 (Tenn. Crim. App. July 23, 2010), perm. app.
denied, (Tenn. Oct. 15, 2010), on the application of these standards to the varying types of
jury instruction error:
The United States Supreme Court and, to some extent, the supreme court of
this state have examined jury instruction errors on a continuum of error,
finding some errors so profound as to defy harmless error analysis while
finding some more akin to other garden variety trial errors. At the beginning
of this continuum, we find the complete deprivation of a public jury trial,
which has been deemed structural error not subject to harmless error analysis.
See Waller v. Georgia, 467 U.S. 39, 49 (1984). Similarly, some jury
instruction error, error which strikes at the very heart of an accused’s right to
trial by jury and which “categorically vitiat[es] all the jury’s findings,”
Hedgpeth v. Pulido, 555 U.S. 57, 61 (2008) (citations and internal quotation
marks omitted), is also structural error. See Sullivan v. Louisiana, 508 U.S.
275, 281 (1993). In Sullivan, the Court determined that “where the
instructional error consists of a misdescription of the burden of proof, which
vitiates all the jury’s findings,” the error was not subject to harmless error
analysis because “[a] reviewing court can only engage in pure speculation—its
view of what a reasonable jury would have done.”5 Id. Structural errors
5
The Court concluded that the erroneous reasonable doubt instruction given at Sullivan’s trial violated both
the Sixth Amendment jury trial right as well as the Fifth Amendment guarantee of due process:
It is self-evident, we think, that the Fifth Amendment requirement of proof beyond a
reasonable doubt and the Sixth Amendment requirement of a jury verdict are interrelated.
It would not satisfy the Sixth Amendment to have a jury determine that the defendant is
probably guilty, and then leave it up to the judge to determine (as Winship requires) whether
he is guilty beyond a reasonable doubt. In other words, the jury verdict required by the
(continued...)
-25-
“‘defy analysis by ‘harmless-error’ ‘standards’ because they ‘affec[t] the
framework within which the trial proceeds,’ and are not ‘simply an error in the
trial process itself.’” United States v. Gonzalez-Lopez, 548 U.S. 140, 148-49,
(2006) (quoting Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991)). “But
‘structural errors’ are ‘a very limited class’ of errors that affect the ‘framework
within which the trial proceeds,’ such that it is often ‘difficul[t]’ to ‘asses[s]
the effect of the error.” United States v. Marcus, 560 U.S. 258, 263 (2010)
(citations omitted).
More common in the continuum are those jury instruction errors that do
not equate to a complete deprivation of the right to trial by jury but
nevertheless seriously implicate both the right to trial by jury and, in many
instances, the right to a fair trial, which is a component of constitutional due
process. See Hedgpeth, 555 U.S. at 60 (observing that “various forms of
instructional error are not structural but instead trial errors subject to
harmless-error review”). In Hedgpeth, the Court observed that the omission
of an element of an offense, see Neder v. United States, 527 U.S. 1 (1999), the
giving of an erroneous aider and abettor instruction, see California v. Roy, 519
U.S. 2 (1996), the misstatement of an element of an offense, see Pope v.
Illinois, 481 U.S. 497 (1987), and the erroneous burden-shifting as to an
element of an offense, see Rose v. Clark, 478 U.S. 570 (1986), had all been
subjected to constitutional harmless error analysis. See Hedgpeth, 555 U.S. at
60-61. Errors in this category require reversal unless the error can be deemed
“harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18,
24 (1967) (“[B]efore a federal constitutional error can be held harmless, the
court must be able to declare a belief that it was harmless beyond a reasonable
doubt.”). “Indeed, [the Court has] said that ‘if the defendant had counsel and
was tried by an impartial adjudicator, there is a strong presumption that any
other errors that may have occurred’ are not ‘structural errors.’” Marcus, 560
U.S. at 265 (quoting Rose, 478 U.S. at 579). These errors “‘occur[] during
presentation of the case to the jury’ and their effect may ‘be quantitatively
assessed in the context of other evidence presented in order to determine
whether [they were] harmless beyond a reasonable doubt.’ These include
‘most constitutional errors.’” Gonzalez-Lopez, 548 U.S. at 148-49 (quoting
Fulminante, 499 U.S. at 306-08). When considering this category of error, a
5
(...continued)
Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt.
Sullivan, 508 U.S. at 278.
-26-
reviewing court “should ask whether the flaw in the instructions ‘had
substantial and injurious effect or influence in determining the jury’s verdict.’”
Hedgpeth, 555 U.S. at 58 (citing Brecht v. Abrahamson, 507 U.S. 619, 623
(1993) (internal quotation marks omitted in original)). As the Court explained,
Consistent with the jury-trial guarantee, the question it instructs
the reviewing court to consider is not what effect the
constitutional error might generally be expected to have upon a
reasonable jury, but rather what effect it had upon the guilty
verdict in the case at hand. Harmless-error review looks, we
have said, to the basis on which “the jury actually rested its
verdict.” The inquiry, in other words, is not whether, in a trial
that occurred without the error, a guilty verdict would surely
have been rendered, but whether the guilty verdict actually
rendered in this trial was surely unattributable to the error.
Sullivan, 508 U.S. at 279 (citations omitted).
At the far end of the continuum are those instructional errors that do not
rise to the level of a deprivation of either the right to trial by jury or
constitutional due process. “The Due Process Clause, our decisions instruct,
safeguards not the meticulous observance of state procedural prescriptions, but
‘the fundamental elements of fairness in a criminal trial.’” Rivera v. Illinois,
556 U.S. 148, 158 (2009) (quoting Spencer v. Texas, 385 U.S. 554, 563-64
(1967)). The Court recognized that “errors of state law do not automatically
become violations of due process,” particularly where “there is no suggestion
. . . that the trial judge repeatedly or deliberately misapplied the law or acted
in an arbitrary or irrational manner.” Rivera, 556 U.S. at 160 (citations
omitted).
Dinwiddie, 2010 WL 2889098, at *10-11 (footnote in original). For non-constitutional errors,
a defendant challenging a conviction has the burden of demonstrating that the error “more
probably than not affected the judgment or would result in prejudice to the judicial process.”
Tenn. R. App. P. 36(b); Rodriguez, 254 S.W.3d at 371-72.
The instruction given in this case created a risk that the jury would disregard a
witness’s entire testimony if that witness had been impeached. This error, which impacts the
Defendant’s jury trial rights and rights of confrontation, we believe can best be classified as
a non-structural constitutional error. See Marcus, 560 U.S. at 264 (“We see no reason why,
when a judge fails to give such an instruction, a reviewing court would find it any more
difficult to assess the likely consequences of that failure than with numerous other kinds of
-27-
instructional errors that we have previously held to be non-structural . . . .”) (internal
quotation marks omitted)). Therefore, we apply the following harmless error standard to this
erroneous instruction: “[B]efore a federal constitutional error can be held harmless, the court
must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman,
386 U.S. 18 at 24. When considering this category of error, a reviewing court “should ask
whether the flaw in the instructions ‘had substantial and injurious effect or influence in
determining the jury’s verdict.’” Hedgpeth, 555 U.S. at 58 (citing Brecht v. Abrahamson, 507
U.S. 619, 623 (1993) (internal quotation marks omitted in original)).
The Defendant reviews his testimony and notes that the Defendant “was successfully
impeached by the State.” He cites to his testimony that he did not mention to Det. Johnson
that he and the victim had a disagreement that morning, nor did he mention the divorce; that
he admitted he lied to Det. Johnson; and that he did not mention to Det. Harbaugh that the
victim had hurt his newborn that morning, nor about any argument. He continues,
But for the erroneous jury instruction, the jury, in its discretion, could
have found that [the Defendant] did not act with the specific intent to harm
[the victim], or that he lacked the required premeditation. . . . Because of the
erroneous jury instruction, the jurors were not allowed to consider [the
Defendant’s] explanation of events, thus leaving the only proof in the case as
that of the State. Had the jury been allow to consider the testimony of [the
Defendant], it could have found
him guilty of a lesser-included offense. The State aks us to look at the jury charge as a whole
and determine that the error was harmless.
The trial court gave the following additional instructions to the jury on how to
consider certain testimony. First, the trial court instructed the jury on the credibility of
witness as follows:
Credibility of a witness defined: That quality in a witness’s testimony which
renders the witness worthy of belief or not. It is your job to decide what the
facts of this case are. You must decide which witnesses you believe and how
important you think their testimony is.
You do not have to accept or reject everything a witness says. You are
free to believe all, none or part of any person’s testimony. In deciding which
testimony you believe, you should rely on your own common sense and
everyday experience.
There is no fixed set of rules for judging whether you believe a witness.
Sometimes the testimony of different witnesses will not agree and you must
-28-
decide which testimony you accept. You should think about whether the
disagreement involves something important or not, and whether you think
someone is lying or is simply mistaken.
People see and hear things differently and witnesses may testify
honestly but simply be wrong about what they thought they saw or
remembered. It is also a good idea to think about which testimony agrees best
with the other evidence in the case.
However, you may conclude that a witness deliberately lied about
something that is important to how you decide the case. If so, you may choose
not to accept anything that witness said. On the other hand, if you think the
witness lied about some things but told the truth about others, you may simply
accept the part you think is true and ignore the rest.
You are the exclusive judges of the credibility of the witnesses and the
weight to be given to their testimony. If there are conflicts in the testimony of
the different witnesses you must reconcile them if you can without hastily or
rashly concluding that any witness has sworn falsely, for the law presumes that
all witnesses are truthful.
In forming your opinion as to the credibility of a witness, you may look
to the proof, if any, of his or her general character, the evidence, if any, of the
witness’s reputation for truth and veracity, the intelligence and respectability
of the witness, his or her interest or lack of interest in the outcome of the trial,
his or her means of knowledge, the reasonableness of his or her statements, his
or her appearance and demeanor while testifying, his or her contradictory
statements as to material matters, if any are shown, and all the evidence in the
case tending to corroborate or to contradict him or her.
See T.P.I—Crim 42.04, 42.04(a). The trial court then gave the disputed instruction on
impeachment of a witnesses, followed by the instruction on direct and circumstantial
evidence. Thereafter, the trial court provided the jury with instructions on how to consider
the Defendant’s testimony and his prior admissions or statements:
The Defendant having testified in his own behalf, his credibility is
determined by the same rules by which the credibility of other witnesses are
determined, and you will give the Defendant’s testimony such weight as you
may think it is entitled.
If you find from the testimony of a witness or witnesses that there has
been evidence of an admission introduced in this case, you may consider that
evidence in your deliberations. It is the State’s contention that an admission
is an acknowledgment by the Defendant of certain facts which tend, together
with other facts, to establish guilt.
-29-
It is your decision to decide whether the Defendant made an admission,
and if so, does it tend together with other facts, to establish his guilt. It must
be corroborated by other independent evidence to warrant and support a
conviction.
The [c]ourt has permitted admission of this evidence but it remains your
duty to decide if in fact such an admission or admissions were ever made. If
you do not believe it was ever made, you should not consider it. If you decide
it was made, you then must judge the truth of the facts stated.
In determining whether you should find it as true, you should consider
the circumstances under which it was made. You should also consider whether
any of the other evidence before you tends to contradict it in whole or in part.
You should not arbitrarily disregard any part of the admission, but
you’re to consider all of which statement you believe is true. If you find the
statement is true, you are the sole judge of the weight that should be given it.
You should consider it along with all the other evidence in the case in
determining the Defendant’s guilt or innocence. An admission is a voluntary
acknowledgment that something is true.
Evidence of a statement by the Defendant has been introduced in this
case. The statement has been introduced by the State as evidence against the
Defendant alleging that the statement proves the Defendant engaged in
conduct which constitutes the crime charged, and is an acknowledgment of
guilt itself.
The [c]ourt has ruled that the statement is admissible in evidence, but
it is your duty to judge its truth. In so judging, you should consider the
circumstances under which the statement 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
statement, 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 what weight to be given to those portions of
the statement which you do believe, and you should consider them along with
all the other evidence in the case in determining the Defendant’s guilt or
innocence. A statement is the act of stating or declaring that person’s
recollection of a past event or occurrence.
See generally T.P.I—Crim. 42.04, 42.11, 42.11(a).
-30-
A jury instruction must be reviewed relative to the instructions in their entirety and
read as a whole rather than in isolation. State v. Leach, 148 S.W.3d 42, 58 (Tenn. 2004).
The complained of instruction dealt with how to treat an impeached witness, not how to treat
an impeached defendant. The instruction dealing with the Defendant stated that his
credibility was to be determined “by the same rules by which the credibility of other
witnesses are determined[.]” Despite the error in the impeachment charge, the trial court
repeatedly instructed this jury on how to consider a witness’s testimony and that it was there
job alone to determine its credibility. The trial court also specifically instructed the jury at
length on how to deal with the Defendant’s testimony and his prior admissions and
statements, allowing the jury to accept or reject all or parts on these statements as they so
choose.
Moreover, after our review of the record, we are convinced that the proof of
premeditation was overwhelming in this case. The Defendant made declarations of his intent
to kill, the victim was unarmed, the killing was particularly cruel, involving multiple blunt
force injuries and strangulation, he secreted evidence, and he appeared calm immediately
after the killing. Reading this jury charge as a whole and in light of the evidence of
premeditation in this case, we conclude that the jury’s guilty verdict was “surely
unattributable” to the erroneous jury instruction and, thus, harmless beyond a reasonable
doubt. Compare State v. Vernon Motley, No. W2010-01989-CCA-R3-CD, 2012 WL
1080479, *4-6 (Tenn. Crim. App. Mar. 29, 2012) (trial court erred in giving an expanded
charge on premeditation, but such error was harmless beyond a reasonable doubt due to
overwhelming proof of premeditation), perm. app. denied, (Tenn. Aug. 16, 2012), with State
v. Hollis, 342 S.W.3d 43, 52 (Tenn. Crim. App. 2011); State v. Kenneth Spencer, No.
W2010-02455-CCA-R3-CD, 2011 WL 6147012, at *13 (Tenn. Crim. App. Dec. 8, 2011);
State v. Elgie Sykes, No. W2009-02296-CCA-R3-CD, 2011 WL 2732660, at *8 (Tenn.
Crim. App. July 14, 2011) (all three cases remanding for a new trial, concluding that
although sufficient evidence of premeditation, error was not harmless beyond a reasonable
doubt).
VI. Judicial Bias
The Defendant contends that the overall “tone of the proceedings as established by
the court’s conduct throughout the trial constituted judicial misconduct of such a magnitude
as to deny [him] his due process right to a fair trial.” The State argues that this issue must
fail because the Defendant has failed to adequately brief the issue. Alternatively, the State
contends that the record does not establish judicial bias.
It has long been settled that “all litigants are entitled to the ‘cold neutrality of an
impartial court’ and have a right to have their cases heard by fair and impartial judges.”
Wright v. Pate, 117 S.W.3d 774, 778 (Tenn. Ct. App. 2002). Moreover, a trial judge should
-31-
not express any thought that would lead the jury to infer that his opinion was in favor of or
against a defendant in a criminal trial. State v. Harris, 839 S.W.2d 54, 66 (Tenn. 1992)
(citing Brooks v. State, 213 S.W.2d 7, 10 (Tenn. 1948)). However, the various rulings of the
trial court on the admissibility of evidence and the propriety of cross-examination and
argument were only an exercise of the discretion accorded to the trial court in conducting the
trial. Id. (citing Hamilton v. State, 555 S.W.2d 724, 728 (Tenn. Crim. App. 1977); Pique v.
State, 480 S.W.2d 546, 548 (Tenn. Crim. App. 1972)). When reviewing a claim of bias,
“[a]ny comments made by the trial court must be construed in the context of all the facts and
circumstances to determine whether a reasonable person would construe those remarks as
indicating partiality on the merits of the case.” Alley v. State, 882 S.W.2d 810, 821-22
(Tenn. Crim. App. 1994) (citations omitted).
In the present case, the Defendant asserts that he was denied a fair trial by the various
comments and interjections of the trial judge. He points to several incidents which he says
cumulatively support his charge of judicial bias:
In support of his contention, [the Defendant] relies upon comments made by
the trial court, several of the court’s rulings, and the court’s restrictions on his
right to recall the State’s witnesses, Marjorie Allen. He further relies upon the
court’s failure to allow him to fully and completely develop his social, family
and marital history during his testimony, as indicating the court’s bias against
him.
In concluding this section of his brief, the Defendant “submits that the trial court, as
evidenced by the foregoing grounds for relief on appeal, conducted the trial in a manner
showing bias in favor of the State, and that his conviction should be reversed.”
In ruling on this allegation at the motion for new trial, the trial court determined as
follows:
I do remember this trial, and just because the [c]ourt sustains or overrules
objections, that in no way gives an overall tone of the proceedings. In fact, if
you were to go look at my admonitions to any jury, because I do this to every
jury when I’m doing my own voir dire in seating them, I specifically, Number
1, instruct the jury, don’t pay any attention to what I do here on this bench
because nothing I do, nothing I write, if I pick up a pen, it has no effect on
what I think your verdict should be, and that’s also put in the instruction.
As [defense counsel] did point out, jurors, I think, do read instructions,
and part of those instructions are, they decide this case, not the [c]ourt, and I
think they followed that instruction. So, I’m overruling that.
-32-
As noted by the State, the Defendant’s allegation of bias is overly broad, and he fails
to specify the comments of the trial court that he claimed prejudiced him or cite to the record
where such instances of bias occurred. The Defendant merely cites to adverse rulings by the
trial court on the admissibility of evidence and the propriety of cross-examination, which as
noted in the law above, were only an exercise of the discretion accorded to the trial court in
conducting the trial. The mere fact that the trial judge did not rule in favor of the Defendant
in every instance does not equate to judicial bias. Rulings of a trial judge, even if erroneous,
numerous and continuous, do not, without more, justify disqualification. Alley, 882 S.W.2d
at 821.
Additionally, regardless of the deficiencies in the Defendant’s brief, an examination
of the entire record establishes that the trial court did not conduct the trial in a manner
showing bias in favor of the State. As addressed in the sections above, we have found no
reversible error in the rulings of the trial court. Moreover, the trial court did instruct the jury
that neither its rulings nor “any other remarks” were to be considered by the jury as indicative
of the trial court’s opinion on the facts of the case or a proper verdict of guilt or innocence;
that such issues were solely their responsibility. We conclude that the Defendant has failed
to show that the trial court acted inappropriately during the trial, and we discern no judicial
misconduct. In so much as the Defendant argues that the trial court’s demeanor and conduct
denied him due process of law, we conclude based on our review of the record that the trial
court exhibited no judicial bias. The Defendant is not entitled to relief on this issue. See,
e.g., State v. Darrell Anderson, No. W2008-00188-CCA-R3-CD, 2010 WL 1444319, at *14-
15 (Tenn. Crim. App. Apr. 9, 2010) (defendant’s broad claims of judicial misconduct and due
process of law based on allegedly prejudicial comments of the trial court in the presence of
the jury were without merit).
CONCLUSION
In accordance with the foregoing reasoning and authorities, the judgment of the trial
court is affirmed.
_________________________________
D. KELLY THOMAS, JR., JUDGE
-33-