State of Tennessee v. Andre Harris

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs March 6, 2013

STATE OF TENNESSEE v. ANDRE HARRIS

Appeal from the Criminal Court for Shelby County
No. 08-07757 Lee V. Coffee, Judge

No. W2011-02440-CCA-R3-CD - Filed June 5, 2013

A Shelby County jury convicted appellant, Andre Harris, of first degree murder in the
perpetration of a theft, first degree premeditated murder, and theft of property valued under
$500. The trial court merged the murder convictions. Appellant was sentenced to life for
first degree murder and to eleven months, twenty-nine days for theft, to be served
concurrently in the Tennessee Department of Correction. On appeal, appellant submits the
following issues for review: (1) whether the trial court erred by admitting a video taped
portion of appellant’s interrogation from “The First 48”; (2) whether the trial court erred by
admitting autopsy photographs; and (3) whether the evidence was sufficient to support
appellant’s convictions for premeditated murder and murder in the perpetration of theft.
After a thorough review of the record and applicable law, we affirm the judgments of the trial
court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

R OGER A. P AGE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J., and
J ERRY L. S MITH, J., joined.

Stephen C. Bush, District Public Defender; and Harry E. Sayle, III (on appeal), Michael
Johnson (at trial), and R. Trent Hall (at trial), Assistant District Public Defenders, Memphis,
Tennessee, for the appellant, Andre Harris.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Steve Jones and Nicole Germain,
Assistant District Attorneys General, for the appellee, State of Tennessee.
 OPINION

I. Facts

This case concerns the April 2008 homicide of Ronald Paige in Memphis, Tennessee.
The Shelby County grand jury indicted appellant for first degree murder in the perpetration
of a theft, first degree premeditated murder, and theft of property. The trial court conducted
appellant’s trial from August 29 through September 2, 2011.

At trial, Carry Morris Paige, the victim’s wife, testified that she had been married to
the victim for thirty years. He had pastored a church in Earle, Arkansas, from the 1970s until
his death. She described him as a person who always tried to help others. At the time of his
death, he had an apartment on North Advantage Way in Memphis, Tennessee. Mrs. Paige
did not live at the apartment because she was caring for her elderly mother. She visited the
victim frequently, however. Mrs. Paige testified that the victim was diabetic and had poor
eyesight. She said that in April 2008, he was “very weak,” and she explained that he would
become short of breath after “walking . . . from the door to the car.” She also said that he
was no longer able to move furniture.

Mrs. Paige testified that she last spoke with her husband by telephone one week prior
to discovering his death. She called him because her car would not start, and he told her that
he was unable to speak with her because the maintenance person was at his apartment. When
the victim did not come to the Wednesday church service that he usually led, Mrs. Paige went
to his apartment. She knocked, but no one answered. She left a note on the door. She
returned to the apartment after the victim did not come to church the following Sunday.
Again, no one answered when she knocked, and the apartment’s management would not let
her inside. She called the police precinct the following day. By the time she arrived at the
apartment after calling the police, the police were there, and she was not able to go inside.

Mike Brandon testified that he was the maintenance supervisor at the victim’s
apartment complex. On April 14, 2008, he went to the victim’s apartment because he had
reported a leak. The victim was present while Mr. Brandon repaired the leak, which was in
the kitchen. Mr. Brandon did not see anyone else in the apartment, but he did not go into the
bedroom. On April 22, 2008, the apartment’s manager told him that the victim’s family had
asked them to check on him. Mr. Brandon knocked on the victim’s door. When no one
answered, he used his pass key to open the door. He was able to smell the victim’s body
immediately, and he saw the body after having opened the door approximately two feet. Mr.
Brandon said that he closed the door, re-locked it, and told the manager to call the authorities.
Mr. Brandon opened the door for the paramedics when they arrived, and he gave a statement
to the police detectives.

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 Memphis Police Officer Bryant Brooks testified that he was the first officer to arrive
at the victim’s apartment on April 22, 2008. He and his partner secured the scene. Officer
Brooks testified that his partner and two paramedics went inside to determine whether the
victim was deceased and whether any other victims were in the apartment. Officer Brooks
said that the police learned that the victim’s blue Mercedes was missing. They determined
that the car had not been towed or repossessed, so they issued an alert for other officers to
look for the car.

Memphis Police Sergeant Connie Justice testified that she was the case coordinator
for the investigation of the victim’s death. She and Sergeant W.D. Merritt went to the crime
scene on April 22, 2008. She testified that she observed the victim’s body lying on the living
room floor five to six feet from the door. The victim’s body was in a state of decomposition,
and there were blood spatters on some items in the room. Sergeant Justice stated that the
blood spatter evidence revealed where the bleeding began and the movement of the person
bleeding. In her opinion, the victim began bleeding on the bed, as shown by the large pool
of blood on the comforter, and he moved from the bed, went through the bedroom door and
a short hallway, and stopped where he was found on the floor in the living room. Sergeant
Justice narrated as the State displayed a sketch of the apartment layout and photographs of
the crime scene. She testified that the police found a kitchen knife inside a glass decanter
located on a piece of furniture in the hallway. The photograph of the knife showed that the
blade was bent. The crime scene photographs included pictures of the victim’s body as he
was found on April 22, 2008. He was wearing a shirt and underwear but not pants. Sergeant
Justice testified that there were pieces of a broken crystal decanter next to his body.

Memphis Police Sergeant Anthony Mullins was accepted by the trial court as an
expert in blood stain pattern analysis. He testified that he had studied photographs of the
blood stains found at the crime scene. The blood stain on the bed indicated to him that the
victim was stationary on the bed “for a period of time.” There were cast-off blood stains on
the wall next to the bed that indicated appellant was standing next to the bed or had one leg
on the floor and one on the bed. He explained that a cast-off blood stain is created when the
blood on an object, which in this case was a knife, continues moving toward the wall after
the object has changed direction. He opined that the victim was stabbed at least three times
while lying on the bed based on the number of cast-off stains. Sergeant Mullins testified that
transfer stains, where the victim touched or brushed against an object, and drip stains, which
came from either multiple bleeding wounds or one large bleeding wound, indicated that the
victim was upright as he moved through the apartment. The blood stains did not indicate that
the victim was crawling or being dragged.

Sergeant Mullins testified that there were medium velocity impact stains on the wall
near the victim’s head, as he was found by the police. He explained that impact stains are

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created when a person is struck and blood is expelled from their body. The velocity of the
spatter depends on the “force . . . applied to the person.” For comparison, Sergeant Mullins
said that a gunshot wound creates high velocity impact spatter while blunt force trauma
creates low to medium velocity impact spatter. The impact spatter on the wall near the
victim’s head indicated to Sergeant Mullins that the victim was struck while he was lying in
the same position in which he was found. He opined that if the victim had been grabbing at
someone’s leg when that person struck him in the head, there would have been an area on the
wall without blood spatter, called a “void,” because the spatter would have hit that person’s
leg instead of the wall. He noted that there was no void on the wall.

Sergeant Justice testified that the police collected items of evidence from the crime
scene including a Gatorade bottle, a sugar bowl, a DVD, bedding, and a pair of pants that had
a large waist size. The police lifted fingerprints from some of the evidence, which they sent
to the crime laboratory.

Nathan Gathright, an employee of the Memphis Police Department was accepted by
the court as an expert in latent fingerprint examination and testified that the fingerprints in
the apartment matched two known individuals: the victim and appellant. He further testified
that he compared the lifted fingerprints to fingerprints taken from the victim’s body. He
entered the fingerprints that did not match the victim’s into the Automated Fingerprint
Identification System, which returned a match to appellant’s fingerprints.

Sergeant Justice testified that once the police learned that the fingerprints found at the
crime scene matched those of appellant, a team went out to locate him. The police officers
who located and arrested appellant testified that appellant was at a gas station on Shelby
Drive in the driver’s seat of a Chevrolet Blazer. The officers took appellant into custody and
transported him to the jail in a patrol car. An EBT card with the victim’s name was found
in the back floorboard of the patrol car after appellant exited, but the card was lost and never
recovered.

Memphis Police Sergeant Mundy Quinn testified that he interviewed appellant. He
estimated that appellant was approximately six feet, one inch tall, or “maybe a little taller,”
and weighed between 215 and 220 pounds. Appellant had a muscular build. Sergeant Quinn
testified that appellant initially denied knowing the victim and said that he had never been
to Raleigh, the neighborhood where the victim’s apartment was located. According to
Sergeant Quinn, appellant was calm at that point. When Sergeant Quinn informed appellant
that his fingerprints had been found in the victim’s apartment, appellant became nervous and
changed his story.

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 In his statement to Sergeant Quinn, appellant admitted that he killed the victim. He
said that he met the victim at a Citgo gas station on James Avenue during the afternoon of
Sunday, April 13, 2008. The victim was passing out flyers about rooming houses. Appellant
recalled that the victim was driving a “blue Mercedes Benz.” Appellant told the victim he
did not have a place to live and was interested in the rooming houses. The victim told
appellant that he knew someone who rented rooms for $100 per week. The victim also told
appellant that he could stay with him until the rental was “situated.” Appellant told Sergeant
Quinn that he asked the victim “if he was gay.” The victim said that he was not and that he
helped “people like this all the time.” Appellant went with the victim back to his apartment.
They talked about the rooming house and about finding a job for appellant. The victim made
some telephone calls, took a shower, and left the apartment.

According to appellant’s statement to Sergeant Quinn, the victim returned the
following morning. Appellant recalled hearing the victim and another person enter the
apartment between 10:30 a.m. and 11:00 a.m., and the other person subsequently left. The
victim came into the room where appellant was lying on the bed. Appellant told Sergeant
Quinn that the victim put his hands around appellant’s neck and tried to “pull out his [own]
penis” at the same time while “[the victim] was wrestling and tussling.” Appellant said that
he picked up a knife from the bedside table but dropped it and cut himself. He picked up the
knife from the floor, turned, and stabbed the victim in the neck. Appellant said that “[i]t
didn’t work” and that the victim continued trying “to put [him] in a choke hold.” According
to appellant, they rolled off the bed and stood up, still “tussling.” The victim tried to take the
knife and pushed appellant. Appellant ran out of the room but tripped and fell. The victim
followed him while also “trying to pull up his pants.” The victim fell, also, but he crawled
after appellant and grabbed appellant’s leg. Appellant said they reached the living room, and
appellant grabbed a bottle and “hit him on the back of the head.” The victim “stopped
moving.”

Appellant told Sergeant Quinn that “five or ten minutes later” he changed shirts and
put on pants and shoes. He wiped off the blood in the bathroom. Appellant said that he took
the victim’s car keys and a money clip containing an EBT card and $23 from the apartment,
then left and sat in the victim’s car for several minutes, debating whether to call the police.
Appellant drove to Forrest City, Arkansas, and stopped at a Walmart. He walked from
Walmart to a Greyhound bus station, bought a ticket, and returned to Memphis by bus. Upon
further questioning by Sergeant Quinn, appellant said that he stabbed the victim “at least
fifteen times . . . [i]n the neck area.” He struck the victim twice with the bottle, and the bottle
shattered.

On cross-examination, Sergeant Quinn testified that he remembered appellant’s being
nervous when he came into the interview. When asked whether he had seen the episode of

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the television documentary “The First 48” that showed appellant’s interview, he responded
affirmatively. He did not recall needing to take a break from the interview due to appellant’s
becoming “very emotional,” but he did recall that appellant got “upset briefly.” During re-
direct examination, the State played a video taped recording of a portion of Sergeant Quinn’s
interview of appellant that had been filmed and edited by “The First 48.”

Jeffrey Guide testified that in April 2008, he was the asset protection coordinator at
the Walmart in Forrest City, Arkansas. He recalled that the Memphis Police Department
homicide bureau contacted his store about a dark-colored Mercedes 500. Mr. Guide located
the Mercedes in the store’s parking lot and notified the police. He reviewed the store’s video
surveillance and determined that the vehicle arrived in the parking lot on April 14, 2008.
Using the store’s video recordings, he followed the person who exited the vehicle through
the store. A camera positioned at the store’s front door had captured the person’s face, and
Mr. Guide testified that the person was appellant. Appellant entered the store, went to the
electronics department, and attempted to make a purchase. The credit card he tried to use
was declined. He returned to the Mercedes, stayed in the car for a moment, and then came
back to the store. Appellant attempted to make a purchase at the same register, but the card
he used was likewise declined.

Sergeant William Merritt testified that he drove to the Forrest City, Arkansas Walmart
and confirmed that the victim’s Mercedes was parked in its parking lot. He determined that
the distance from the victim’s apartment to the Forrest City Walmart was 55.2 miles. He
obtained a DVD of the store’s video surveillance and print-outs of appellant’s attempted
purchases. Sergeant Merritt testified that appellant tried to purchase a cellular telephone.
He said that appellant walked to a bus station after leaving Walmart and purchased a one-way
ticket back to Memphis. He further testified that appellant’s driver’s license application from
April 9, 2008, listed his height as six-feet, one-inch, and his weight as 210 pounds, which
was consistent with Sergeant Merritt’s observation of appellant. The application listed
appellant’s address as a residence on Castle Drive.

Dr. Lisa Funte, a medical examiner at the Shelby County Regional Medical Center,
testified that she performed an autopsy on the victim on April 23, 2008. She said that the
victim “came from the scene in a state of moderate decomposition.” The victim had “sharp
force injuries” and “blunt force trauma.” According to Dr. Funte, only one sharp force injury
involved a “vital structure,” which was the victim’s jugular vein. She testified that an injury
to the jugular vein can result in death from blood loss unless a person has prompt emergency
medical intervention. The victim had sharp force injuries on his face, neck, shoulders, scalp,
chest, abdomen, back, hands, and wrists. Dr. Funte said that “[t]he maximum depth of
penetration [of the stab wounds] was five and an eighth inches.” She opined that the other
stab wounds did not penetrate any vital organ because the victim was “morbidly obese[,] and

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a lot of these [stab wounds] did penetrate just into the subcutaneous fat.” Dr. Funte classified
the hand and wrist injuries as defensive wounds. The victim had sixty-six stab wounds and
twenty-five incised wounds. She testified that he also received blunt force injuries to his
skull that would have been fatal. He had “multiple skull fractures, some of which were
depressed, which means that the bone moves inward . . . toward the brain.” The injuries
resulted in a cranial hemorrhage. Dr. Funte testified that the victim received “at least
eighteen strikes to the head.” She further testified that at the time of his autopsy, the victim
was five feet, six inches tall and weighed 251 pounds. She said that the height measurement
was taken while the victim’s body was lying on a table and might be “[l]ess than an inch”
different than his height when standing upright. The weight measurement was affected by
the decomposition of the body, so the victim would have weighed more when alive. Dr.
Funte testified that the victim’s cause of death was “homicidal violence,” and she said that
she used that terminology because there were multiple lethal injuries, one caused by sharp
force and several by blunt force. She said that she was not able to determine the exact
chronology of when the victim received the injuries. She also stated that the stab wound to
the jugular vein would not have immediately affected the victim’s mobility but that the blunt
force injuries were more likely to be immediately incapacitating.

Appellant testified on his own behalf. He said that in April 2008, he was homeless.
He met the victim at a gas station on April 13 and began talking to him because the victim
was passing out flyers for rooming houses. Appellant said that the victim offered to let him
stay at his apartment until “he could get [appellant] situated with the rooming houses.” They
drove to the victim’s apartment and went inside. They talked in the living room, and then
appellant watched movies in the victim’s bedroom. The victim left and did not return until
the following morning. In the meantime, appellant drank liquor and ate a microwave meal.
He fell asleep at approximately 11:00 p.m.

Appellant testified that the next morning, he heard the victim and another person come
inside the apartment. He fell asleep again. Appellant testified that he woke up when the
victim started choking him. He said that he thought he “was going to pass out.” The victim
“let up” and “started reaching for his [own] pants.” Appellant testified that the victim “was
trying to pull out his [own] penis[,] and he was trying to pull down [sic] [appellant’s] penis[,]
too.” Appellant said that he grabbed a knife from the dresser and started stabbing the victim
while they wrestled on the bed. He further said that he tried to run away after they “hit the
floor,” but the victim was “constantly grabbing” him. They both stood up and continued
“tussling” as they were leaving the room. Appellant could not remember whether he was still
“swinging at him with the knife.” He said that they both fell to the floor again, and the
victim “took off his pants and set them on top of me.” Appellant testified that they struggled
as they went down the hall and into the living room. When they reached the living room,
appellant grabbed a bottle and hit the victim in the head.

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 Appellant testified that he grabbed the bottle because “[t]he knife was so small” that
he did not “think it was doing anything.” He said that he did not “intend to stab him that
many times.” He testified that they were “both in a rage” and that the victim was fighting
him the entire time. He said that he “was scared for [his] life.” He acknowledged that the
victim stopped moving when he hit him in the head with the bottle and that he continued
hitting him even though he was no longer defending himself. Appellant said that he stopped
attacking the victim when the bottle broke.

Appellant testified that after the bottle broke, he sat on the floor for five to ten minutes
contemplating whether to call the police. He decided not to call the police. Instead, he
washed his hands and changed clothes, and then he took the keys to the Mercedes and drove
to Arkansas. He said that he did not take anything else from the apartment besides the keys
and that the money clip and EBT card were already in the car. Appellant testified that he sat
in the Walmart parking lot for awhile, crying and thinking about turning himself in to the
police. He found gift cards in the trunk of the car and tried to use them to buy a cellular
phone and “an air time card,” but there was not enough money on the cards. Appellant said
that he did not want to drive the Mercedes back to Memphis because he was concerned about
wrecking. He learned that there was a bus station nearby, so he went to the station and
bought a ticket back to Memphis. He returned to Memphis and stayed in the city until his
arrest. He said that he thought about turning himself in and that he knew he would
eventually be arrested. Appellant admitted that he had been arrested previously for
misdemeanor thefts and passing bad checks.

Following the close of proof and deliberations, the jury convicted appellant of first
degree murder in the perpetration of a theft, first degree premeditated murder, and theft of
property valued under $500. The first degree murder convictions merged by operation of
law. The trial court sentenced appellant to a life sentence for the first degree murder
conviction and to a concurrent sentence of eleven months, twenty-nine days for the theft
conviction, to be served in the Tennessee Department of Correction. This appeal follows.

II. Analysis

A. Admission of “The First 48” Video

Appellant argues that the trial court erred by admitting a segment of the television
documentary “The First 48” that showed appellant’s interview by Sergeant Quinn and his
partner. As grounds, he claims that the trial court failed to comply with the procedural
requirements of Tennessee Rule of Evidence 404(b) and that the trial court improperly ruled
that appellant had opened the door to having the video admitted. The State responds that
appellant opened the door for the admission of the evidence by mentioning during the cross-

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examination of Sergeant Quinn that an edited version of appellant’s interview appeared on
“The First 48.”

The record shows that during Sergeant Quinn’s direct examination, he testified that
appellant was calm during his interview. On cross-examination, he clarified that appellant
“was nervous when he came in” to the homicide bureau’s office. Immediately after Sergeant
Quinn’s clarification, appellant’s counsel stated, “As a matter of fact . . . there was an edited
version of this on The First 48.” He then asked Sergeant Quinn several questions about what
was said by the police and by the appellant and appellant’s reactions and emotions during the
interview. Upon the conclusion of cross-examination, the State requested a bench
conference. The State asked that it be allowed to introduce a portion of “The First 48”
episode, despite the parties’ agreement not to mention the episode during the trial, because
otherwise the jury would know that there was a video-recording of appellant’s interview that
the State had not introduced. The State admitted that it told the jury venire that “The First
48” had covered the appellant’s case and that it asked whether any members of the venire
watched the show. The State maintained that it had not referenced exactly what had been
recorded. Appellant responded that he had not opened the door to the admission of the video
and would not have broached the subject but for the State’s reference during voir dire. The
trial court held a jury-out hearing to allow the State to proffer the segment showing
appellant’s interview. During the jury-out hearing, appellant protested that the video
included improper references to a “stolen Blazer.” Appellant did not request a hearing under
Tennessee Rule of Evidence 404(b).

The trial court ruled that the video from “The First 48” was admissible to rebut the
inferences raised during the cross-examination of Sergeant Quinn. The court stated that “the
questions that were asked by [appellant’s counsel] represent[ed] some of what happened in
the interview room, but it [was] not a fair representation of what happened in the interview
room.” The court further stated that appellant’s cross-examination of Sergeant Quinn “would
leave an impression that there [was] something that was recorded that would indicate that
Sergeant Quinn’s testimony may or may not be accurate.” The court found that under
Tennessee Rule of Evidence 106, also known as the rule of completeness, a portion of
appellant’s interview had been introduced so the video of the interview as shown on “The

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First 48” should be introduced.1 After the State played the video, the trial court gave this
instruction to the jury:

The tape that you just viewed is not being offered for [the] truth of those
matters asserted, and that tape is being shown to rebut any inferences that
[appellant] was nervous and emotional when he first came into the homicide
office and to show his demeanor during this interview[,] and you can consider
that tape for those purposes and only for those purposes.

Appellant contends on appeal that the trial court erred by admitting “The First 48”
video into evidence. The determination of whether evidence is admissible at trial is a matter
left to the sound discretion of the trial court and will not be reversed absent an abuse of that
discretion. State v. Dellinger, 79 S.W.3d 458, 485 (Tenn. 2002); State v. McLeod, 937
S.W.2d 867, 871 (Tenn. 1996). “Relevant evidence” is “evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401. All
relevant evidence is admissible unless specifically excepted by constitution, statute, rules of
evidence, or rules of general application. Tenn. R. Evid. 402.

Appellant first argues that the trial court failed to follow the proper procedure under
Tennessee Rule of Evidence 404(b) because it did not hold a jury-out hearing on the evidence
of other crimes, namely the mentioning of a stolen Blazer during appellant’s interview. Rule
404(b) provides:

Other Crimes, Wrongs, or Acts.—Evidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in order to show action in
conformity with the character trait. It may, however, be admissible for other
purposes. The conditions which must be satisfied before allowing such
evidence are:

1
Tennessee Rule of Evidence 106 states: “When a writing or recorded statement or part thereof is
introduced by a party, an adverse party may require the introduction at that time of any other part or any other
writing or recorded statement which ought in fairness to be considered contemporaneously with it.” This
rule is more typically invoked when one party introduces a portion of a statement and the opposing party
introduces the remainder of the statement. State v. Vaughn, 144 S.W.3d 391, 408 (Tenn. Crim. App. 2003).
However, this court has also determined that a cross-examination can be so detailed as to be an effective
introduction of the statement. State v. Belser, 945 S.W.2d 776, 788 (Tenn. Crim. App. 1996). In any event,
the parties in this case have not presented their arguments on appeal based on Rule 106; therefore, whether
the trial court correctly applied the rule is not at issue.

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 (1) The court upon request must hold a hearing outside the
jury’s presence;

(2) The court must determine that a material issue exists other
than conduct conforming with a character trait and must upon
request state on the record the material issue, the ruling, and the
reasons for admitting the evidence; and

(3) The court must exclude the evidence if its probative value is
outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). “A fourth prerequisite to admissibility is that the trial court find by
clear and convincing evidence that the defendant committed the other crimes or bad acts.”
State v. McCary, 119 S.W.3d 226, 243 (Tenn. Crim. App. 2003).

In this case, the trial court did not comply with the procedural requirements of Rule
404(b). Appellant objected to allowing the jury to hear that he had been accused of stealing
a Blazer. However, appellant failed to specify that he objected to the introduction of the
video under Rule 404(b) and failed to request a 404(b) hearing. Appellant also failed to
request that the trial court “state on the record the material issue, the ruling, and the reasons
for admitting the evidence.” Tenn. R. Evid. 404(b). Thus, appellant has waived any
argument that the trial court erred by not holding a 404(b) jury-out hearing. See Tenn. R.
App. P. 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.”)

Because it was irrelevant, the trial court should have redacted the mention of the
stolen Blazer from the video shown to the jury, but its failure to do so was harmless error
under Tennessee Rule of Appellate Procedure 36(b) in light of the record as a whole.
Appellate admitted to killing the victim and taking the Mercedes. In his testimony, appellant
also admitted that he had prior convictions, including misdemeanor theft. Thus, the mention
of the stolen Blazer was prejudicial to appellant but not significantly so. Moreover, the trial
court instructed the jury that the video was not offered for the truth of any matters asserted.
Based on the record before us, we cannot say that any error in admitting the stolen Blazer
portion of “The First 48” video “more probably than not affected the judgment.” Tenn. R.
App. P. 36(b). Appellant is not entitled to relief on this issue.

Appellant also argues that the trial court erred by finding that appellant opened the
door to the admission of “The First 48” video. Our supreme court recently described the
concept of “opening the door” as “an equitable principle that permits a party to respond to

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an act of another party by introducing otherwise inadmissible evidence.” State v. Gomez, 367
S.W.3d 237, 246 (Tenn. 2012). In this case, the record reflects that the parties agreed prior
to trial not to introduce “The First 48” video as evidence due to the fact that the video was
produced for television and had been heavily edited by the production company. However,
appellant interjected the issue of “The First 48” video during his cross-examination of
Sergeant Quinn. Until that point, the jury did not know that a video-recording of appellant’s
interview existed. The trial court found that appellant’s cross-examination of Sergeant Quinn
created a false impression of appellant’s interview and opened the door to the State
introducing the video during its redirect examination. We conclude that the trial court did
not abuse its discretion in admitting the evidence. Appellant is not entitled to relief on this
issue.

B. Autopsy Photographs

Appellant argues on appeal that the trial court erred by admitting into evidence twenty
photographs of the victim’s autopsy. He contends that the probative value of the photographs
is substantially outweighed by the danger of unfair prejudice because the number and
location of the victim’s wounds was not contested and the victim’s body was in a state of
decomposition at the time of the photographs. Tenn. R. Evid. 403. The State responds that
the trial court did not abuse its discretion because the photographs were not particularly
gruesome; they were necessary to prove premeditation; and they were highly probative of
what actually happened between appellant and the victim. We agree with the State.

Tennessee Rules of Evidence 401, 402, and 403 govern the admissibility of the
photographs in this case. See State v. Banks, 564 S.W.2d 947, 949-51 (Tenn. 1978). First,
a witness with knowledge of the facts must verify and authenticate a photograph before it can
be admitted into evidence. Id. at 949. Next, a trial court must determine whether the
photograph is relevant. Id.; see Tenn. R. Evid. 401. Irrelevant evidence is inadmissible.
Tenn. R. Evid. 402. If the evidence has “any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than it
would be without the evidence,” it is relevant. Tenn. R. Evid. 401. Once it determines that
a photograph is relevant, the trial court must then determine whether the probative value of
the photograph is substantially outweighed by the danger of unfair prejudice. See Tenn. R.
Evid. 403; Banks, 564 S.W.2d at 950-51. “Unfair prejudice” is “‘[a]n undue tendency to
suggest decision on an improper basis, commonly, though not necessarily, an emotional
one.’” Banks, 564 S.W.2d at 951 (quoting Tenn. R. Evid. 403, Adv. Comm’n Note).
Furthermore,

A trial court should consider: the accuracy and clarity of the picture and its
value as evidence; whether the picture depicts the body as it was found; the

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 adequacy of testimonial evidence in relating the facts to the jury; and the need
for the evidence to establish a prima facie case of guilt or to rebut the
defendant’s contentions.

State v. Leach, 148 S.W.3d 42, 63 (Tenn. 2004) (citing Banks, 564 S.W.2d at 951).

The decision whether to admit the photographs rests within the trial court’s sound
discretion, and we will not reverse the trial court’s determination absent a clear showing of
an abuse of that discretion. Banks, 564 S.W.2d at 949; see also State v. Dubose, 953 S.W.2d
649, 653 (Tenn. 1997); State v. Stinnett, 958 S.W.2d 329, 331 (Tenn. 1997). Tennessee
courts follow a policy of liberality in the admission of photographs in both civil and criminal
cases. See Banks, 564 S.W.2d at 949.

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.
Id. at 951. “Photographs of a corpse are admissible in murder prosecutions if they are
relevant to the issues at trial, notwithstanding their gruesome and horrifying character, and
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)), perm. app. denied (Tenn.
Dec. 14, 2011).

In this case, the photographs were highly probative of issues presented at trial and
were not particularly gruesome; thus, the trial court did not abuse its discretion in admitting
them into evidence. Appellant claimed before and during trial that he did not remember
stabbing and bludgeoning the victim as many times as the physical evidence showed. Nor
did he recall stabbing the victim in any place other than his neck. The photographs pointedly
contradicted appellant’s statements. Therefore, the photographs were highly probative of the
actual number and location of the wounds. Moreover, the State was required to prove the
element of premeditation. Among the factors probative of premeditation are “the use of a
deadly weapon upon an unarmed victim, the particular cruelty of the killing, [and] infliction
of multiple wounds.” State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000). The autopsy
photographs were probative of these circumstantial indicators of premeditation. In sum, the
State and appellant presented opposing theories of how appellant killed the victim, and the
photographs had significant probative value in helping the jury determine what actually
happened in the victim’s apartment.

In addition, the prejudicial value of the photographs was not significant. The
photographs in question are not particularly gruesome. The victim’s body had been cleaned,

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and there was no blood. We note that appellant has not contested the admission of the crime
scene photographs, which showed the victim’s body with blood and other bodily fluids on
it. We conclude that the autopsy photographs were relevant to several issues presented at
trial and that their probative value was not substantially outweighed by the danger of unfair
prejudice. Therefore, the trial court did not abuse its discretion in admitting the photographs,
and appellant is without relief as to this issue.

C. Sufficiency of the Evidence

Appellant contends that the evidence was insufficient to support his convictions for
premeditated murder and murder in the perpetration of a theft. He argues that the evidence
was only sufficient to warrant a conviction for voluntary manslaughter. Appellant does not
contest the sufficiency of the evidence supporting his conviction for theft.

1. Standard of Review

The standard for appellate review of a claim of insufficiency of the State’s evidence
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) (emphasis in original) (citing Johnson
v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354
S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient evidence, appellant
must demonstrate that no reasonable trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. This standard of
review is identical whether the conviction is predicated on direct or circumstantial evidence,
or a combination of both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.
Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

On appellate review, “we afford the prosecution the strongest legitimate view of the
evidence as well as all reasonable and legitimate inferences which may be drawn therefrom.”
Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010));
State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571 S.W.2d 832,
835 (Tenn. 1978). In a jury trial, questions involving the credibility of witnesses and the
weight and value to be given the evidence, as well as all factual disputes raised by the
evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court presumes that the jury
has afforded the State all reasonable inferences from the evidence and resolved all conflicts
in the testimony in favor of the State; as such, we will not substitute our own inferences
drawn from the evidence for those drawn by the jury, nor will we re-weigh or re-evaluate the
evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see State v. Sheffield,

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676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes the presumption of
innocence that appellant enjoyed at trial and replaces it with one of guilt at the appellate
level, the burden of proof shifts from the State to the convicted appellant, who must
demonstrate to this court that the evidence is insufficient to support the jury’s findings.
Davis, 354 S.W.3d at 729; State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011) (quoting State v.
Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

2. Premeditated Murder

The jury convicted appellant of premeditated murder. Tennessee Code Annotated
section 39-13-202(a) (2010) defines this category of first degree murder as “[a] premeditated
and intentional killing of another.”

“[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. The mental state of the accused at the
time the accused allegedly decided to kill must be carefully considered in order
to determine whether the accused was sufficiently free from excitement and
passion as to be capable of premeditation.

Id. at § 39-13-202(d). In reviewing the sufficiency of the evidence, we must determine
whether the State established the element of premeditation beyond a reasonable doubt. See
State v. Sims, 45 S.W.3d 1, 7 (Tenn. 2001); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999).
The presence of premeditation is a question of fact for the jury, and the jury may infer
premeditation from the circumstances surrounding the killing. State v. Young, 196 S.W.3d
85, 108 (Tenn. 2006); see State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000); State v. Pike, 978
S.W.2d 904, 914 (Tenn. 1998).

A defendant’s “state of mind is crucial to the establishment of the elements of the
offense,” thus, the State may prove premeditation by circumstantial evidence. State v. Brown,
836 S.W.2d 530, 541 (Tenn. 1992). Several factors support the existence of premeditation
including: “the use of a deadly weapon upon an unarmed victim; the particular cruelty of the
killing; declarations by the defendant of an intent to kill; evidence of procurement of a
weapon; preparations before the killing for concealment of the crime, and calmness
immediately after the killing.” Bland, 958 S.W.2d at 660 (citing Brown, 836 S.W.2d at 541-
42; State v. West, 844 S.W.2d 144, 148 (Tenn. 1992)).

Viewed in the light most favorable to the State, the evidence was sufficient to show
the necessary premeditation and intent to support appellant’s conviction for premeditated

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murder. Appellant contends that the “overwhelming weight of the evidence” shows that
appellant killed the victim with adequate provocation after the victim’s sexual attack. We
disagree.

The evidence presented at trial showed that the victim was in poor health. He could
not walk far without becoming short of breath and could not move furniture. In addition, he
was unarmed when the killing occurred. On the other hand, appellant was a tall, muscular
young man, and he used two separate weapons to kill the victim. The State’s witnesses
testified that the altercation between appellant and the victim began in the bedroom, and the
amount of blood on the bed indicated that the victim was stationary there for some time.
None of this evidence supports appellant’s contention that the victim initiated an attack
against him. Furthermore, Sergeant Mullins testified that based on the blood spatter evidence,
the victim was upright as he moved away from the bedroom into the living room, which is
contrary to appellant’s assertion that the victim crawled on the floor and grabbed at him. The
blood spatter also showed that appellant was standing beside the bed when he stabbed the
victim and that he was standing behind the victim as he bludgeoned the victim’s head with
the decanter.

The medical examiner testified that the victim had sixty-six stab wounds, twenty-five
incised wounds, and at least eighteen blunt force injuries. She further testified that the cutting
of the victim’s jugular vein would not have been fatal if the victim had received immediate
medical attention, but the trauma to the victim’s head was fatal. In other words, if appellant
had stopped stabbing the victim after hitting his jugular vein and sought medical help for the
victim, the victim might have lived. Instead, appellant kept stabbing him before hitting him
in the head with a decanter until the decanter broke, even though the victim was lying
prostrate on the floor by that time. The evidence of the sheer brutality of the killing was more
than sufficient evidence for the jury to find appellant guilty of premeditated murder.

3. Murder in the Perpetration of a Theft

The jury also convicted appellant of murder in the perpetration of a theft. Tennessee
Code Annotated section 39-13-202(a)(2) defines this category of first degree murder as “[a]
killing of another committed in the perpetration of or attempt to perpetrate any . . . theft . . .
.” Tennessee Code Annotated section 39-14-103 defines theft: “A person commits theft of
property if, with intent to deprive the owner of property, the person knowingly obtains or
exercises control over the property without the owner’s effective consent.” Our supreme court
has ruled that the theft does not have to precede the killing, “so long as there is a connection
in time, place, and continuity of action,” but the intent to commit a theft “must exist prior to
or concurrent with the commission of the act causing the death of the victim.” State v. Buggs,
995 S.W.2d 102, 106-07 (Tenn. 1999). The proof of a defendant’s intention “is a question

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of fact to be decided by the jury after consideration of all the facts and circumstances.” Id.
at 107. “[A] jury may reasonably infer from a defendant’s actions immediately after a killing
that the defendant had the intent to commit the felony prior to, or concurrent with, the killing.”
Id. at 108.

Viewed in the light most favorable to the State, the evidence was sufficient to support
appellant’s conviction for murder in the perpetration of a theft. Appellant testified that he was
homeless when he met the victim. When he spoke with Sergeant Quinn, appellant specifically
recalled that the victim was driving a Mercedes Benz, which is commonly considered a luxury
vehicle. After he killed the victim, he took the victim’s keys and money clip, which held both
an EBT card and $23. While he testified at trial that he found the money clip in the victim’s
car, his statement to Sergeant Quinn indicated that he took the money clip from the victim’s
apartment. Appellant stole the victim’s car, drove it to another state, and used the cash taken
from the victim to buy a bus ticket back to Memphis. There is clearly a connection in time,
place, and continuity of action between the killing of the victim and the taking of his property.
The jury could reasonably infer that appellant killed the victim in the perpetration of the theft;
therefore, the appellant’s argument is without merit.

CONCLUSION

Based on our review of the record, the briefs of the parties, and the applicable law, we
affirm the judgments of the trial court.

_________________________________
ROGER A. PAGE, JUDGE

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